1
Exhibit 10.1
-------------------------------
CREDIT AGREEMENT
among
SUSQUEHANNA MEDIA CO.
THE LENDERS PARTY TO THIS LOAN AGREEMENT, and
FIRST UNION NATIONAL BANK, as Agent
----------------------------------
FIRST UNION CAPITAL MARKETS CORP., as Lead Arranger, Advisor and
Book Manager
----------------------------------
Dated as of May 12, 1999
2
TABLE OF CONTENTS
PAGE
BACKGROUND OF AGREEMENT ........................................................................................ 1
ARTICLE 1 THE LOANS..................................................................................... 2
1.1 Revolving Credit Loans........................................................................ 2
1.1.1 Commitment to Make Revolving Loans................................................... 2
1.1.2 Available Commitment................................................................. 2
1.1.3 Voluntary Commitment Reductions...................................................... 2
1.1.4 Scheduled Commitment Reductions...................................................... 3
1.1.5 Commitment Reductions In Connection With Certain Asset Dispositions.................. 3
1.1.6 Relationship Between Scheduled Commitment Reductions and Other Commitment
Reductions........................................................................... 4
1.1.7 Prepayment In Connection With Commitment Reductions.................................. 4
1.1.8 Voluntary Prepayments................................................................ 4
1.2 Swing Loans................................................................................... 5
1.2.1 Swing Loan Advances.................................................................. 5
1.2.2 Terms of Swing Loan Borrowings....................................................... 5
1.2.3 Participation by RC Lenders.......................................................... 5
1.2.4 No Set-off, Etc...................................................................... 6
1.2.5 Certain Limitations.................................................................. 6
1.3 Term Loans.................................................................................... 7
1.3.1 Commitment for Term A Loan........................................................... 7
1.3.2 Commitment for Term B Loan........................................................... 7
1.3.3 Repayment of Term A Loan............................................................. 7
1.3.4 Repayment of Term B Loan............................................................. 8
1.3.5 Voluntary Prepayments................................................................ 9
1.3.6 Mandatory Prepayments in Connection With Asset Sales................................. 9
1.3.7 Relationship of Voluntary and Other Mandatory Prepayments to Scheduled Payments...... 9
1.4 Lenders' Obligations Several.................................................................. 9
1.5 Notes......................................................................................... 10
1.6 Borrowing Notice.............................................................................. 10
1.7 Fees to Lenders............................................................................... 11
1.7.1 Commitment Fees...................................................................... 11
1.7.2 Letter of Credit Fees and Fronting Fees.............................................. 12
1.7.3 Other Fees........................................................................... 12
1.8 Interest...................................................................................... 12
1.8.1 The Rates............................................................................ 12
1.8.3 Officers' Certificate................................................................ 14
1.8.4 LIBOR Election....................................................................... 15
1.8.5 Definition of Adjusted LIBOR......................................................... 16
1.8.6 Additional Costs, Unavailability, Etc................................................ 17
1.8.7 Source of Funds...................................................................... 18
1.8.8 Default Rate......................................................................... 19
-i-
3
TABLE OF CONTENTS
(CONTINUED)
PAGE
1.9 Purpose....................................................................................... 19
1.10 Additional Provisions concerning Prepayments and Failure to Borrow............................ 19
1.10.1 Interest on Amounts Prepaid.......................................................... 19
1.10.2 Breakage............................................................................. 19
1.10.3 Certain Presumptions Regarding Application of Prepayments............................ 20
1.11 Replacement of Lender......................................................................... 20
ARTICLE 2 MECHANICS OF PAYMENTS; TAX FORMS.............................................................. 20
2.1 Company Payment............................................................................... 20
2.2 Lender Required Payment....................................................................... 21
2.3 Company Required Payment...................................................................... 22
2.4 Tax Forms..................................................................................... 22
ARTICLE 3 LETTERS OF CREDIT............................................................................. 23
3.1 Letters of Credit............................................................................. 23
3.1.1 Commitment to Issue Letters of Credit................................................ 23
3.1.2 Limitation on Amount................................................................. 24
3.1.3 Obligations Absolute................................................................. 24
3.1.4 Reliance by Issuing Bank............................................................. 24
3.1.5 Fees................................................................................. 24
3.1.6 Participation by RC Lenders.......................................................... 25
3.1.7 Standard of Conduct.................................................................. 25
3.1.8 Cash Collateral Account.............................................................. 26
3.1.9 Obligations Secured.................................................................. 26
ISSUANCE OF LETTERS OF CREDIT................................................................................... 26
4.1 Conditions to Initial Funding................................................................. 26
4.1.1 Execution of this Agreement.......................................................... 26
4.1.2 The Notes............................................................................ 26
4.1.3 Security Agreement................................................................... 26
4.1.4 Guaranty and Suretyship Agreement.................................................... 27
4.1.5 Pledge Agreements.................................................................... 27
4.1.6 Subordination Agreements............................................................. 28
4.1.7 Trademark Collateral Agreement....................................................... 28
4.1.8 Repayment of Existing Indebtedness................................................... 28
4.1.9 Tax Sharing Agreement................................................................ 28
4.1.10 Management Agreement................................................................. 29
4.1.11 ESOP Sharing Agreement............................................................... 29
4.1.12 Xxxxxxx Agreement.................................................................... 29
4.1.13 Senior Subordinated Indenture........................................................ 29
4.1.14 Creation of ESOP..................................................................... 29
4.1.15 Payment of Fees and Costs............................................................ 29
4.1.16 No Default........................................................................... 29
4.1.17 Correctness of Representations and Warranties........................................ 29
4.1.18 Financial Statements; Projections.................................................... 30
4.1.19 Legal Proceedings.................................................................... 30
-ii-
4
TABLE OF CONTENTS
(CONTINUED)
PAGE
4.1.20 Consents and Approvals............................................................... 30
4.1.21 Material Adverse Change or Effect; Compliance With Law............................... 30
4.1.22 Opinions of Counsel.................................................................. 31
4.1.23 Officers' Compliance Certificate..................................................... 31
4.1.24 Good Standing........................................................................ 31
4.1.25 Lien Searches........................................................................ 31
4.1.26 Evidence of Insurance................................................................ 32
4.1.27 Other Requirements................................................................... 32
4.2 Requirements for Each Loan/Letter of Credit................................................... 32
4.2.1 No Default........................................................................... 32
4.2.2 Request for Advance/Letter of Credit................................................. 32
4.2.3 Representations and Warranties....................................................... 32
4.2.4 Material Adverse Change.............................................................. 32
4.2.5 Material Adverse Effect.............................................................. 32
4.2.6 Senior Subordinated Notes............................................................ 32
4.2.7 Miscellaneous........................................................................ 33
4.2.8 Method of Certifying Certain Conditions.............................................. 33
ARTICLE 5 REPORTING REQUIREMENTS AND NOTICES............................................................ 33
5.1 Financial Data and Reporting Requirements; Notice of Certain Events........................... 33
5.1.1 Delivery of Quarterly Financial Statements........................................... 33
5.1.2 Delivery of Annual Financial Statements; Accountants' Certification.................. 34
5.1.3 Delivery of Officers' Certificates as to No Default.................................. 34
5.1.4 Delivery of Officers' Compliance Certificate; Subscriber Levels, Etc................. 34
5.1.5 Auditors' Reports.................................................................... 35
5.1.6 SPC Financial Statement.............................................................. 35
5.1.7 Officers' Certificate for Rate and Fee Calculations.................................. 35
5.1.8 ESOP Information..................................................................... 35
5.1.9 Reports to Senior Subordinated Noteholders, SEC Filings, Etc......................... 36
5.2 Notice of Defaults, Disputes and Other Matters................................................ 37
5.2.1 Certain Orders by PUC................................................................ 37
5.2.2 License or Franchise Revocation...................................................... 37
5.2.3 Certain Disputes..................................................................... 37
5.2.4 Certain Litigation................................................................... 37
5.2.5 Governmental Reports................................................................. 38
5.2.6 Xxxxxxx Agreement.................................................................... 38
5.2.7 Events of Default.................................................................... 38
5.2.8 Contract Default..................................................................... 38
5.2.9 Cross Default........................................................................ 38
5.2.10 Material Adverse Change.............................................................. 38
5.2.11 Representations and Warranties....................................................... 38
5.2.12 Equity Issuance...................................................................... 38
-iii-
5
TABLE OF CONTENTS
(CONTINUED)
PAGE
5.2.13 Purchase of Minority Interests....................................................... 39
5.3 The ESOP and ERISA Matters.................................................................... 39
5.3.1 The ESOP............................................................................. 39
5.3.2 Annual Reports....................................................................... 39
5.3.3 Other ERISA Information.............................................................. 39
5.3.4 Reportable Events, Etc............................................................... 39
5.4 Miscellaneous................................................................................. 40
5.5 Disclosure.................................................................................... 40
ARTICLE 6 FINANCIAL COVENANTS........................................................................... 41
6.1 Interest Coverage Ratio....................................................................... 41
6.2 The Debt Service Coverage Ratio............................................................... 41
6.3 Consolidated Total Leverage Ratio............................................................. 41
6.4 Consolidated Senior Leverage Ratio............................................................ 41
6.5 Fixed Charge Coverage Ratio................................................................... 42
6.6 Additional Provisions Respecting Calculation of Financial Covenants........................... 42
ARTICLE 7 BUSINESS COVENANTS............................................................................ 43
7.1 Indebtedness.................................................................................. 43
7.1.1 In General........................................................................... 43
7.1.2 Limitation on Incurrence............................................................. 46
7.2 Liens......................................................................................... 46
7.2.1 In General........................................................................... 46
7.2.2 Negative Pledge...................................................................... 48
7.3 Investments, Loans, Acquisitions etc.......................................................... 48
7.3.1 Limitation........................................................................... 48
7.3.2 Investments.......................................................................... 48
7.3.3 Acquisitions......................................................................... 50
7.3.4 Additional Limitations on Investments................................................ 52
7.4 Restricted Payments........................................................................... 53
7.5 Sale-Leasebacks............................................................................... 54
7.6 Transactions with Shareholders and Affiliates................................................. 54
7.7 Mergers and Dispositions...................................................................... 54
7.7.1 Consolidations and Mergers........................................................... 54
7.7.2 Sales and Other Dispositions......................................................... 55
7.8 Management Fees............................................................................... 58
7.8.1 Limitations on Management Arrangements............................................... 58
7.8.2 Limitations on Management Fees....................................................... 59
7.9 Existence..................................................................................... 59
7.10 Compliance with Law........................................................................... 60
7.11 Payment of Taxes and Claims................................................................... 60
7.12 Tax Consolidation............................................................................. 60
7.13 Compliance with ERISA......................................................................... 60
7.14 Matters Relating to the ESOP.................................................................. 62
7.14.1 Tax Determination Letter............................................................. 62
-iv-
6
TABLE OF CONTENTS
(CONTINUED)
PAGE
7.14.2 Reimbursement and Allocation Matters................................................. 62
7.15 Insurance..................................................................................... 62
7.15.1 Liability, Property Damage, Etc...................................................... 62
7.15.2 PBGC................................................................................. 62
7.16 Maintenance of Properties..................................................................... 62
7.17 Maintenance of Records; Fiscal Year........................................................... 63
7.18 Inspection.................................................................................... 63
7.19 Exchange of Notes............................................................................. 63
7.20 Other Agreements.............................................................................. 64
7.21 Further Assurances............................................................................ 64
7.22 Consistent Action - Voting.................................................................... 64
7.23 Type of Business.............................................................................. 64
7.23.1 Permitted Businesses................................................................. 64
7.23.2 The Company.......................................................................... 64
7.23.3 Radio License Subsidiaries........................................................... 64
7.24 Control of Business........................................................................... 65
7.25 Shareholders.................................................................................. 65
7.26 Change in Documents; New Documents............................................................ 65
7.26.1 Limitations on Changes to Certain Agreements......................................... 65
7.26.2 Consistent Action - Conflicting Agreement............................................ 66
7.27 Payment of Indebtedness; Subordination........................................................ 66
7.28 Subsidiary Stock Ownership Interests and Indebtedness......................................... 67
7.29 Compliance with Federal Reserve Regulations................................................... 68
7.30 Filings....................................................................................... 68
7.31 Limitations on Certain Restrictive Provisions................................................. 68
7.32 Interest Rate Protection...................................................................... 68
7.33 Environmental Matters......................................................................... 69
7.34 Corporate Separateness........................................................................ 69
ARTICLE 8 EVENTS OF DEFAULT............................................................................. 70
8.1 Events of Default............................................................................. 70
8.1.1 Failure to Pay Principal............................................................. 70
8.1.2 Failure to Pay Interest, Fees, Reimbursement Obligations, Etc........................ 70
8.1.3 Cross Default to Indebtedness........................................................ 70
8.1.4 Other Cross-Defaults................................................................. 70
8.1.5 Misrepresentations................................................................... 71
8.1.6 Certain Covenant Defaults............................................................ 71
8.1.7 Other Covenant Defaults.............................................................. 71
8.1.8 Other Loan Document Defaults; Security............................................... 71
8.1.9 Custody or Control of Assets......................................................... 72
8.1.10 Discontinuance of Business; Insolvency............................................... 72
8.1.11 FCC Licenses and Other Franchises.................................................... 73
8.1.12 Material Adverse Effect.............................................................. 73
8.1.13 Judgments............................................................................ 73
-v-
7
TABLE OF CONTENTS
(CONTINUED)
PAGE
8.1.14 Change of Control.................................................................... 73
8.1.15 Xxxxxxx Matters...................................................................... 73
8.1.16 Loss of Tax Qualification of ESOP.................................................... 73
8.1.17 Subordination........................................................................ 73
8.2 Acceleration; Remedies........................................................................ 74
8.2.1 Remedies in General.................................................................. 74
8.2.2 Waivers.............................................................................. 74
8.2.3 Regulatory Matters................................................................... 75
8.2.4 Certain Limitations.................................................................. 76
ARTICLE 9 REPRESENTATIONS AND WARRANTIES................................................................ 76
9.1 Status........................................................................................ 76
9.1.1 Organization and Qualification....................................................... 76
9.1.2 Stock Ownership...................................................................... 76
9.1.3 Certain Entities..................................................................... 77
9.2 Power and Authority........................................................................... 78
9.3 No Violation of Agreements.................................................................... 78
9.4 Recording, Enforceability and Consent; Validity of Security Interest.......................... 78
9.5 Litigation; Compliance with Laws.............................................................. 79
9.6 No Burdensome Agreements...................................................................... 79
9.7 Condition of Property......................................................................... 79
9.8 Fees.......................................................................................... 80
9.9 Licenses...................................................................................... 80
9.10 Title to Properties; Liens.................................................................... 81
9.11 Patents, Trademarks, Agreements, Etc.......................................................... 81
9.12 Names......................................................................................... 81
9.13 Management Agreement.......................................................................... 81
9.14 Financial Statements and Projections.......................................................... 81
9.14.1 Financial Statements................................................................. 81
9.14.2 Projections.......................................................................... 82
9.15 Changes....................................................................................... 82
9.16 Tax Returns and Payments...................................................................... 82
9.17 Indebtedness.................................................................................. 82
9.18 Federal Reserve Regulations................................................................... 83
9.19 Investment Company Act........................................................................ 83
9.20 Public Utility Holding Company Act............................................................ 83
9.21 Compliance with ERISA and ESOP Matters........................................................ 83
9.21.1 Plans................................................................................ 83
9.21.2 Favorable Determination Letters...................................................... 83
9.21.3 Compliance with Law.................................................................. 83
9.21.4 Absence of Certain Conditions........................................................ 83
9.21.5 Absence of Certain Liabilities...................................................... 84
9.21.6 ESOP Valuation Matters.............................................................. 84
9.21.7 84
-vi-
8
TABLE OF CONTENTS
(CONTINUED)
PAGE
9.21.8 No Prohibited Transaction........................................................... 84
9.21.9 ESOP Liabilities.................................................................... 85
9.21.9 ESOP Liabilities TC "9.21.9 ESOP Liabilities" \l "3"................................ 85
9.21.10 Annual Contribution to ESOP......................................................... 85
9.21.11 Failure to Pay ESOP Compensation Expense............................................ 85
9.21.12 Fiduciary Liability................................................................. 85
9.21.13 .................................................................................... 85
9.21.14 Disposition of Code Section 1042 Shares............................................. 85
9.22 Accuracy and Completeness of Disclosure...................................................... 85
9.23 Adequacy of Capital.......................................................................... 85
9.24 Absence of Restrictive Provisions............................................................ 86
9.25 Environmental Compliance..................................................................... 86
9.26 Solvency..................................................................................... 87
9.27 Subordination................................................................................ 87
9.28 Year 2000 Compliance......................................................................... 87
ARTICLE 10 DEFINITIONS.................................................................................. 88
10.1 Defined Terms................................................................................ 88
ARTICLE 11 MISCELLANEOUS................................................................................ 115
11.1 Notices...................................................................................... 115
11.2 Duration; Survival........................................................................... 116
11.3 No Implied Waiver............................................................................ 116
11.4 Entire Agreement and Amendments.............................................................. 116
11.5 Successors and Assigns....................................................................... 117
11.5.1 In General; The Company............................................................. 117
11.5.2 Participations...................................................................... 117
11.5.3 Assignments......................................................................... 118
11.5.4 Mechanics of Assignments............................................................ 118
11.5.5 Certain Permitted Pledges........................................................... 119
11.5.6 Affected Lenders.................................................................... 119
11.6 Calculations and Financial Data.............................................................. 119
11.7 Descriptive Headings......................................................................... 120
11.8 Governing Law................................................................................ 120
11.9 Arbitration; Consent to Jurisdiction, Service and Venue; Waiver of Jury Trial................ 120
11.9.2 Consent to Jurisdiction, Service and Venue; Waiver of Jury Trial.................... 121
11.10 Holidays..................................................................................... 123
11.11 Counterparts................................................................................. 123
11.12 Maximum Lawful Interest Rate................................................................. 123
11.13 Set-off...................................................................................... 124
11.14 Severability................................................................................. 124
11.15 Payment and Reimbursement of Costs and Expenses; Indemnification............................. 124
11.15.1 Indemnification and Reimbursement in General........................................ 124
11.15.2 Certification of Amounts............................................................ 126
-vii-
9
TABLE OF CONTENTS
(CONTINUED)
PAGE
11.15.3 Interest on Obligations............................................................. 126
11.15.4 Obligations Absolute................................................................ 126
11.15.5 Limitations on Indemnification...................................................... 127
ARTICLE 12 AGENT........................................................................................ 127
12.1 Authority.................................................................................... 127
12.2 Expenses..................................................................................... 127
12.3 Exculpatory Provisions....................................................................... 127
12.4 Investigation by Lenders..................................................................... 128
12.5 Amendments, Waivers and Consents............................................................. 128
12.6 Action Upon Defaults......................................................................... 130
12.6.1 Actions by Agent.................................................................... 130
12.6.2 Proceeds of Collateral.............................................................. 130
12.7 Instructions................................................................................. 131
12.8 Resignation; Termination..................................................................... 131
12.9 Sharing...................................................................................... 131
12.10 Failure of a Lender to Make an Advance....................................................... 131
12.11 Other Relationships.......................................................................... 132
PRIVATE LIST OF ADDENDA (EXHIBITS AND SCHEDULES)............................................................... 150
-viii-
10
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of the 12th day of May, 1999 (this
"Agreement") by and among FIRST UNION NATIONAL BANK ("First Union"),
individually, as Issuing Bank and as Agent, the OTHER FINANCIAL INSTITUTIONS
listed on the signature pages to this Agreement, and SUSQUEHANNA MEDIA CO., a
Delaware corporation (the "Company"). First Union, the financial institutions
listed on the signature pages to this Agreement and any other financial
institutions which may become parties to this Agreement from time to time, are
sometimes collectively referred to as the "Lenders" and individually as a
"Lender." First Union, when acting in its capacity as agent for the Lenders and
Issuing Bank, or any successor or assign that assumes that position pursuant to
the terms hereof, is hereinafter sometimes referred to as the "Agent." In
connection with this Agreement, FIRST UNION CAPITAL MARKETS CORP. has served as
Lead Arranger, Advisor and Book Manager.
BACKGROUND OF AGREEMENT
The Company is, through its subsidiaries, engaged primarily in the
radio broadcast and cable television businesses. The Company currently wishes to
refinance its existing indebtedness (which consists of a senior bank facility
and a pari passu senior note purchase facility). In connection therewith, it
wishes to increase the maximum aggregate principal amount of its bank facility
to $450,000,000, provide security therefor and issue certain senior subordinated
notes in an aggregate principal amount not to exceed $200,000,000. The
obligations under this Agreement are senior to those senior subordinated notes
and constitute "Designated Senior Indebtedness" within the meaning of the Senior
Subordinated Indenture (as defined below) relating to such notes.
The senior bank facility, which is provided for in this Agreement, is
to be guaranteed by the Company's subsidiaries and secured by the equity of the
Company and its subsidiaries (other than the non-voting stock of Susquehanna
Radio Corp. and BlazeNet) issued pursuant to employee stock plans) as well as by
the material assets (other than real property) of those entities. Certain terms
are used in this Agreement as defined in Article 10 below.
NOW, THEREFORE, it is agreed:
11
ARTICLE 1
THE LOANS
1.1 REVOLVING CREDIT LOANS.
1.1.1 COMMITMENT TO MAKE REVOLVING LOANS. Subject to and upon
the terms and conditions set forth in this Agreement, the RC Lenders shall make
advances to the Company until the Revolver Maturity Date up to the aggregate
principal amount outstanding at any one time of Two Hundred and Fifty Million
Dollars ($250,000,000) (as the same may be reduced pursuant to this Agreement,
the "Revolving Credit Commitment"); provided however that (a) the aggregate
amount of the Revolving Credit Commitment available for borrowing at any time
shall not exceed the Available Commitment (as hereinafter defined); (b) the
amount and percentage of the Revolving Credit Commitment and the Available
Commitment which each RC Lender is obligated to lend shall not exceed at any
time the amount or percentage set forth opposite the name of such RC Lender on
Schedule 1.1 hereto (as supplemented and amended by giving effect to the
assignments contemplated in this Agreement). Within the limits set forth above,
the Company may borrow under this Section 1.1, repay or prepay such advances,
and reborrow under this Section 1.1. The amounts loaned to the Company pursuant
to the reducing revolver facility described in this Section 1.1 are referred to
as the "Revolving Loans".
1.1.2 AVAILABLE COMMITMENT. "Available Commitment" shall mean
the initial Revolving Credit Commitment, as the same is reduced by:
(a) voluntary reductions in the Revolving Credit
Commitment pursuant to Subsection 1.1.3 below;
(b) scheduled and other mandatory reductions in the
Revolving Credit Commitment pursuant to Subsections 1.1.4 and 1.l.5,
respectively, below;
(c) the face amount of any outstanding Letters of
Credit and any Unreimbursed Drawings (if any) relating to Letters of Credit; and
(d) the aggregate principal amount of any outstanding
Swing Loans and Revolving Loans.
1.1.3 VOLUNTARY COMMITMENT REDUCTIONS. The Company shall have
the right at any time and from time to time upon five (5) Business Days' prior
written notice to the Agent to reduce (on a pro rata basis among the RC Lender)
permanently, in minimum amounts of Five Million Dollars ($5,000,000) or in whole
multiples of One Million Dollars ($1,000,000) in excess of Five Million Dollars
($5,000,000) of principal, or terminate the Revolving Credit Commitment, without
penalty or premium except as otherwise provided in Subsections 1.8.6 (Additional
Costs), 1.10.2 (Breakage) and 11.15 (Indemnification).
- 2 -
12
1.1.4 SCHEDULED COMMITMENT REDUCTIONS. The Revolving Credit
Commitment shall be automatically and permanently reduced on March 31, June 30,
September 30 and December 31 of each year commencing on September 30, 2002 and
ending on the Revolver Maturity Date by an amount equal to (a) the amount of the
Revolving Credit Commitment on September 30, 2002 (before accounting for the
September 30, 2002 reduction) multiplied by (b) the quarterly reduction
percentage specified below, such that on the Revolver Maturity Date there will
be no Revolving Credit Commitment:
Revolving Credit
Commitment as of
12/31, Assuming Only Quarterly
Calendar Scheduled (No Voluntary or Reduction
Year Other Mandatory) Reductions Percentage
-------- --------------------------- ----------
2002 $230,000,000 4.00% (two payments only)
2003 $190,000,000 4.00%
2004 $140,000,000 5.00%
2005 $ 90,000,000 5.00%
2006 $ 30,000,000 6.00%
2007 $ 0 (6/30/07) 6.00% (two payments only)
1.1.5 COMMITMENT REDUCTIONS IN CONNECTION WITH CERTAIN ASSET
DISPOSITIONS. In addition to the Revolving Credit Commitment reductions
specified in the preceding Subsections 1.1.3 (Voluntary Commitment Reductions)
and 1.1.4 (Scheduled Commitment Reductions), the Revolving Credit Commitment
shall be permanently reduced by an amount equal to the Unapplied Net Proceeds on
each Application Date, provided that in lieu of reducing the Revolving Credit
Commitment, or in combination with reducing the Revolving Credit Commitment, the
Company may upon five (5) Business Days' written notice to the Agent prior to
the Application Date (i) prepay Term A Loan and/or Term B Loan and/or (ii)
reduce the Revolving Credit Commitment, such that the total amount of the
Revolving Credit Commitment and the outstanding Term Loans, collectively, is
reduced by an amount equal to the Unapplied Net Proceeds on each Application
Date. In addition to the foregoing, at any time that the Company makes a
disposition of assets that would require a prepayment under the Senior
Subordinated Indenture if those proceeds are not used to pay down the Loans, the
facility will be permanently reduced pursuant to this Subsection 1.1.5. Any time
that the Revolving Credit Commitment is reduced pursuant to this Subsection
1.1.5, the Company shall concurrently prepay the Revolving Loans and/or Swing
Loans in an amount equal to the amount by which the Revolving Credit Commitment
is reduced.
Notwithstanding the foregoing if a sale is effected by the
Company (or by Susquehanna Cable and/or its Subsidiaries) of stock or assets of
Susquehanna Cable and its Subsidiaries, a portion of the proceeds of such sale
may be used by the Company to pay or
- 3 -
13
prepay its obligations under the Xxxxxxx Note so long as no Potential Event of
Default or Event of Default shall have occurred and be continuing or be caused
thereby and the Company delivers to the Agent and each Lender at least five (5)
Business Days prior to the date such payment is made an Officer's Compliance
Certificate showing compliance, on a Pro Forma Basis, with the financial
covenants set forth in Article 6 after giving effect to the payment or
prepayment.
1.1.6 RELATIONSHIP BETWEEN SCHEDULED COMMITMENT REDUCTIONS AND
OTHER COMMITMENT REDUCTIONS. Any voluntary reductions to the Revolving Credit
Commitment made pursuant to Subsection 1.1.3 above or mandatory reductions to
the Revolving Credit Commitment made pursuant to Subsection 1.1.5 above shall
serve to reduce the amount of scheduled reductions in the Revolving Credit
Commitment pursuant to Subsection 1.1.4 above occurring on or after the
effective date of such voluntary or mandatory reduction above on a pro rata
basis, reducing proportionately each of the reductions specified in said
Subsection 1.1.4.
1.1.7 PREPAYMENT IN CONNECTION WITH COMMITMENT REDUCTIONS.
Upon the effective date of each reduction in the Revolving Credit Commitment
referred to above, the Company shall be required to pay to the Agent for the
benefit of the RC Lenders the principal amount of the Revolving Loans and/or
Swing Loans, to the extent, if any, that the aggregate amount of the Revolving
Loans and Swing Loans then outstanding plus the aggregate face value of Letters
of Credit then outstanding and Unreimbursed Drawings exceeds the amount of the
Available Commitment as so reduced. If after prepayment of all outstanding
Revolving Loans and Swing Loans, the amounts of outstanding Letters of Credit
and Unreimbursed Drawings exceed the Available Commitment as so reduced, the
Company shall pay to the Agent for the benefit of the RC Lenders an amount by
which the aggregate face value of all outstanding Letters of Credit and
Unreimbursed Drawings exceeds the Available Commitment as so reduced, such
amount first to be applied against Unreimbursed Drawings and the remainder to be
maintained by the Agent in an interest bearing cash collateral account in the
name of and for the benefit of the Agent and the RC Lenders to secure the
repayment of Company's obligation to reimburse the RC Lenders from drafts drawn
or which may be drawn under outstanding Letters of Credit until such time as the
applicable Letters of Credit have expired or been cancelled). At the request of
the Agent, accrued interest on the Loans so prepaid shall be due and payable at
the time of such prepayment. All amounts of principal, interest and fees
relating to Revolving Loans not due and payable before June 30, 2007 are due and
payable on that date.
1.1.8 VOLUNTARY PREPAYMENTS. Except as otherwise provided in
this Agreement, the Company shall be permitted to prepay the Revolving Loans at
any time without penalty or premium. In connection with each voluntary
prepayment:
(a) The Company shall provide the Agent with notice
of its intention to prepay,
- 4 -
14
(i) no later than 11:00 a.m. (Philadelphia,
PA time) on the date of prepayment in the
case of Revolving Loans bearing interest at
the Base Rate plus Applicable Margin, and
(ii) no later than 11:00 a.m. (Philadelphia,
PA time) three (3) Business Days prior to
the date of prepayment in the case of
Revolving Loans bearing interest at Adjusted
LIBOR plus Applicable Margin.
(b) Each prepayment of principal of a Revolving Loan
shall be in a minimum amount equal to Two Million Dollars ($2,000,000.00) or in
amounts in excess thereof equal to Two Million Dollars ($2,000,000) plus
integral multiples of $500,000 in excess thereof.
1.2 SWING LOANS.
1.2.1 SWING LOAN ADVANCES. Upon the terms and subject to the
conditions of this Agreement, the Swing Lender agrees to make, from time to
time, from and including the Closing Date to but excluding the Revolver Maturity
Date, one or more Loans ("Swing Loans") to the Company, in an aggregate
principal amount not exceeding at any time $5,000,000, provided, however, that
no Swing Loan shall be made at any time in an amount in excess of the Available
Commitment.
1.2.2 TERMS OF SWING LOAN BORROWINGS. The Company shall give
the Swing Lender notice (which shall be irrevocable) of a request for a Swing
Loan (with a copy to the Agent) no later than 12:00 noon (Philadelphia, PA time)
on the day such Loan is requested; if such notice is received later than 12:00
noon (Philadelphia, PA time), then the request shall be deemed to be a request
for a Swing Loan to be made on the next Business Day. Each Swing Loan shall be
in a principal amount equal to or greater than Two Hundred Thousand Dollars
($200,000) and shall bear interest at the Base Rate plus Applicable Margin. The
Company shall repay each Swing Loan no later than 3:00 p.m. (Philadelphia, PA
time) on the earlier of (A) the date that demand is made therefor by the Swing
Lender and (B) the Revolver Maturity Date. The Swing Lender shall provide prompt
notice to the Agent of any repayment of Swing Loans by the Company.
1.2.3 PARTICIPATION BY RC LENDERS. Upon demand made to all of
the RC Lenders by the Swing Lender, which demand may be made before or after an
Event of Default or Potential Event of Default (including, without limitation,
an Event of Default arising in connection with an insolvency, bankruptcy, etc.),
and before or after the maturity date of the subject Swing Loans, but subject to
the provisions of Subsection 1.2.5 (Certain Limitations) below, each RC Lender
shall promptly, irrevocably and unconditionally purchase from the Swing Lender,
without recourse or warranty, an undivided interest and participation in the
Swing Loans then outstanding.
- 5 -
15
Each RC Lender shall effect such purchase by paying to the Swing Lender in
immediately available funds, without reduction or deduction of any kind,
including reductions or deductions for set-off, recoupment or counterclaim, an
amount equal to such RC Lender's pro rata share of the principal amount of all
Swing Loans then outstanding. Each RC Lender's pro rata share of the Swing Loans
shall be based on the amount of such RC Lender's pro rata share of the total
Revolving Credit Commitment. Thereafter, the RC Lenders' respective interests in
such Swing Loans, and the remaining interest of the Swing Lender in such Swing
Loans, shall in all respects be treated as Revolving Loans under this Agreement,
except that (x) subject to Subsection 1.8.8 (Default Rate) below, such Swing
Loans shall continue to bear interest at the rate specified in Subsection 1.2.2
above for such Swing Loans until such Swing Loans are due and payable and (y)
such Swing Loans shall be due and payable by the Company on the dates referred
to in Subsection 1.2.2 (Terms of Swing Loan Borrowing).
If any RC Lender does not pay any amount which it is required to pay pursuant to
this Subsection 1.2.3 promptly upon the Swing Lender's demand therefor, (i) the
Swing Lender shall be entitled to recover such amount on demand from such RC
Lender, together with interest thereon, at the Federal Funds Rate for the first
three Business Days, and thereafter at the Base Rate, for each day from the date
of such demand, if made prior to 2:00 p.m. (Philadelphia, Pennsylvania time) on
any Business Day, or, if made at any later time, from the next Business Day
following the date of such demand, until the date such amount is paid in full to
the Swing Lender by such RC Lender and (ii) the Swing Lender shall be entitled
to all interest payable by the Company on such amount until the date on which
such amount is received by the Swing Lender from such RC Lender. Moreover, any
RC Lender that shall fail to make available the required amount shall not be
entitled to vote on or consent to or approve any matter under this Agreement and
the other Loan Documents until such amount with interest is paid in full to the
Swing Lender by such RC Lender. Without limiting any obligations of any RC
Lender pursuant to this Subsection 1.2.3, if any RC Lender does not pay such
corresponding amount promptly upon the Swing Lender's demand therefor, the Swing
Lender shall notify the Company and the Company shall promptly repay such
corresponding amount to the Swing Lender together with accrued interest thereon
at the applicable rate on such Swing Loans.
1.2.4 NO SET-OFF, ETC. Subject only to the limitations set
forth in the following Subsection 1.2.5 (Certain Limitations), the obligations
of each RC Lender to make available to the Swing Lender the amounts set forth in
the preceding Subsection 1.2.3 shall be absolute, unconditional and irrevocable
under any and all circumstances, shall be without reduction for any set-off or
counterclaim of any nature whatsoever, may not be terminated, suspended or
delayed for any reason whatsoever, shall not be subject to qualification or
exception and shall be made in accordance with the terms of this Agreement.
1.2.5 CERTAIN LIMITATIONS. No RC Lender shall be obligated to
purchase a participation in any Swing Loan pursuant to Subsection 1.2.4, if such
RC Lender proves that (A) the conditions set forth in Subsections 4.2.1 (No
Default) or 4.2.3 (Representations and
- 6 -
16
Warranties) were not satisfied at the time such Swing Loan was made (unless such
condition was waived in accordance with the terms of this Agreement) and (B)
such RC Lender or the Agent had notified the Swing Lender in a writing received
by the Swing Lender at least one Business Day prior to the time that it made
such Swing Loan that the Swing Lender was not authorized to make such Swing Loan
because such conditions were not satisfied and stating with specificity the
reason therefor. The Swing Lender shall not be obligated to the Company to make
any Swing Loans at any time after it has received a notice pursuant to clause
(B) above whether or not the statements made therein are true.
1.3 TERM LOANS.
1.3.1 COMMITMENT FOR TERM A LOAN. Upon the terms and subject
to the conditions of this Agreement, each Term A Lender agrees to make advances
("Term A Loans") to the Company on the Closing Date in an aggregate principal
amount not to exceed One Hundred Million Dollars ($100,000,000) (the "Term A
Loan Commitment"), provided, however, that the amount and percentage of the Term
A Loan Commitment that any Lender is obligated to lend shall not exceed the
amount or percentage set forth opposite the name of such Lender on Schedule 1.2
hereto. The Company shall not be permitted to reborrow any amount of the Term A
Loans once repaid.
1.3.2 COMMITMENT FOR TERM B LOAN. Upon the terms and subject
to the conditions of this Agreement, each Term B Lender agrees to make advances
("Term B Loans") to the Company on the Closing Date in an aggregate principal
amount not to exceed One Hundred Million Dollars ($100,000,000) (the "Term B
Loan Commitment"), provided, however, that the amount and percentage of the Term
B Loan Commitment that any Lender is obligated to lend shall not exceed the
amount or percentage set forth opposite the name of such Lender on Schedule 1.2
hereto. The Company shall not be permitted to reborrow any amount of the Term B
Loans once repaid.
1.3.3 REPAYMENT OF TERM A LOAN. The principal of Term A Loans
shall be due and payable in quarterly installments on March 31, June 30,
September 30 and December 31 of each year commencing on September 30, 2002 and
ending June 30, 2007, in each case in an amount equal to (a) the Term A Loan
Commitment on the date hereof multiplied by the quarterly reduction percentage
specified below, such that all of the Term A Loans will be repaid in full on or
before June 30, 2007:
- 7 -
17
Outstandings as of
12/31, Assuming Only Quarterly
Calendar Scheduled (No Voluntary or Reduction
Year Other Mandatory) Prepayments Percentage
-------- ---------------------------- ----------
2002 $ 92,000,000 4.00% (two payments only)
2003 $ 76,000,000 4.00%
2004 $ 56,000,000 5.00%
2005 $ 36,000,000 5.00%
2006 $ 12,000,000 6.00%
2007 $ 0 (6/30/07) 6.00% (two payments only)
All amounts of principal, interest and fees relating to Term A Loans not due and
payable before June 30, 2007 are due and payable on that date.
1.3.4 REPAYMENT OF TERM B LOAN. The principal of Term B Loans
shall be due and payable in quarterly installments on March 31, June 30,
September 30 and December 31 of each year commencing on June 30, 2002 and ending
June 30, 2008, in each case in an amount equal to (a) the Term B Loan Commitment
on the date hereof multiplied by the quarterly reduction percentage specified
below, such that all of the Term B Loans will be repaid on or before June 30,
2008:
Outstandings
Assuming Only Quarterly
Calendar. Scheduled (No Voluntary or Reduction
Quarter Other Mandatory) Repayments Percentage
---------- --------------------------- ----------
6/30/02 $99,750,000 .25%
9/30/02 $99,500,000 .25%
12/31/02 $99,250,000 .25%
3/31/03 $99,000,000 .25%
6/30/03 $98,750,000 .25%
9/30/03 $98,500,000 .25%
12/31/03 $98,250,000 .25%
3/31/04 $98,000,000 .25%
6/30/04 $97,750,000 .25%
9/30/04 $97,500,000 .25%
12/31/04 $97,250,000 .25%
3/31/05 $97,000,000 .25%
6/30/05 $96,750,000 .25%
9/30/05 $96,500,000 .25%
12/31/05 $96,250,000 .25%
3/31/06 $96,000,000 .25%
6/30/06 $95,750,000 .25%
- 8 -
18
9/30/06 $95,500,000 .25%
12/31/06 $95,250,000 .25%
3/31/07 $95,000,000 .25%
6/30/07 $94,750,000 .25%
9/30/07 $71,062,500 23.6875%
12/31/07 $47,375,000 23.6875%
3/31/08 $23,687,500 23.6875%
6/30/08 $0 23.6875%
All amounts of principal, interest and fees relating to Term B Loans as well as
all other amounts payable under this Agreement not due and payable before June
30, 2008 are due and payable on that date.
1.3.5 VOLUNTARY PREPAYMENTS. The Company may at any time and
from time to time upon five (5) Business Days' prior written notice to the Agent
prepay either Term A Loans or Term B Loans in whole or in part in a minimum
amount equal to $5,000,000 or in incremental amounts equal to $1,000,000 in
excess of such minimum amount, without penalty or premium except as provided in
Subsections 1.8.6 (Additional Costs), 1.10.2 (Breakage) and Section 11.15
(Indemnification).
1.3.6 MANDATORY PREPAYMENTS IN CONNECTION WITH ASSET SALES.
The Company shall prepay the Term A Loans and/or Term B Loans at such times and
in such amounts as is required by Subsection 1.1.5 above (Commitment Reductions
in Connection with Asset Sales).
1.3.7 RELATIONSHIP OF VOLUNTARY AND OTHER MANDATORY
PREPAYMENTS TO SCHEDULED PAYMENTS. Any voluntary prepayments of Term A Loans or
Term B Loans pursuant to Subsection 1.3.5 above (Voluntary Prepayments) shall be
applied against the scheduled payments set forth in Subsection 1.3.3 (Repayment
of Term A Loans) and Subsection 1.3.4 (Repayment of Term B Loans), as
applicable, in inverse order of maturity. Any mandatory prepayments of Term A
Loans or Term B Loans pursuant to Subsection 1.3.6 above (Mandatory Prepayments
in Connection with Asset Sales) shall be applied against the scheduled payments
set forth in Subsection 1.3.3 (Repayment of Term A Loans) and Subsection 1.3.4
(Repayment of Term B Loans), as applicable, on a pro rata basis, reducing
proportionately each of the scheduled payments specified in said Subsection
1.3.3 or 1.3.4, as applicable, on or after the effective date of such mandatory
prepayment.
1.4 LENDERS' OBLIGATIONS SEVERAL.
Each Lender is severally bound by this Agreement, but there
shall be no joint obligation of the Lenders under this Agreement. The failure of
any Lender to make any share of the Loans or obligations respecting Letters of
Credit to be made by it on the date specified for the Loans or such obligations
shall not relieve any other Lender of its obligation to make its share of
- 9 -
19
the Loans or other obligations on such date, but neither any Lender nor the
Agent shall be responsible for the failure of any other Lender to make a share
of the Loans or other obligations to be made by such other Lender.
1.5 NOTES.
Upon the request of any RC Lender, the aggregate principal
amount of each RC Lender's share of the Revolving Credit Commitment and
Revolving Loans shall be evidenced by a note to be issued by the Company to each
RC Lender in substantially the form attached hereto as Exhibit A-1 (with
appropriate completion of the name of the applicable RC Lender). Upon the
request of any Term A Lender, the aggregate amount of such Term A Lender's share
of the Term A Commitment and Term A Loans shall be evidenced by a note to be
issued by the Company to such Term A Lender in substantially the form attached
hereto as Exhibit A-2 (with the appropriate completion of the name of the
applicable Term A Lender). Upon the request of any Term B Lender, the aggregate
amount of such Term B Lenders' share of the Term B Commitment and Term B Loans
shall be evidenced by a note to be issued by the Company to such Term B Lender
in substantially the form attached as Exhibit A-3 to this Agreement (with
appropriate completion of the name of the applicable Term B Lender). Upon the
request of the Swing Lender, the Swing Loans and commitment therefor shall be
evidenced by a note to be issued by the Company to the Swing Lender in
substantially the form attached as Exhibit A-4 to this Agreement.
1.6 BORROWING NOTICE.
Fundings of Revolving Loans shall be in the minimum amount of
Two Million Dollars ($2,000,000) and integral multiples of Five Hundred Thousand
Dollars ($500,000) in excess of such minimum amount. To effect a funding, the
Company shall give the Agent written notice in the form annexed to this
Agreement as Exhibit B specifying the amount and date of each intended borrowing
and the manner in which the same shall be disbursed, which notice
(a) in the case of borrowings to bear interest at a
rate based upon the Base Rate, shall be given no later than 11:00 a.m.
(Philadelphia, PA time) on the date of such borrowing,
(b) in the case of borrowings to bear interest based
upon Adjusted LIBOR, shall be given no later than 11:00 a.m. (Philadelphia, PA
time) at least three (3) Eurodollar Business Days prior to each such borrowing
and shall specify the Interest Period with respect to such borrowing, and
(c) in the case of an advance, or an advance which is
part of a series of related advances, in excess of $25,000,000 for the purpose
of effecting an Acquisition or purchasing a minority interest as more fully set
forth in Subsection 1.8.3 (Officers' Certificate), shall be accompanied by the
Officers' Certificate required by said Subsection 1.8.3.
- 10 -
20
The Agent in turn shall give prompt written or telephonic (promptly confirmed in
writing) notice to each Lender of its pro rata share of the borrowing, the
interest rate option selected and the scheduled date of the funding. After
receipt of such notice, each Lender shall make such arrangements as are
necessary to assure that its share of the funding shall be immediately available
(in U.S. Dollars) to the Agent no later than 2:30 p.m. (Philadelphia, PA time),
on the date on which the funding is to occur. After receipt of the funds, the
Agent, subject to the satisfaction of the conditions precedent set forth in
Section 4.2 (Requirements for Each Loan/Letter of Credit), shall disburse the
amount of such funding in accordance with instructions in the Company's
borrowing notice.
The Lenders shall not be obligated to comply with a borrowing
notice if there shall then exist an Event of Default or a Potential Event of
Default regardless of whether Lenders have determined to exercise their remedies
arising upon the occurrence of such Event of Default or Potential Event of
Default.
1.7 FEES TO LENDERS.
1.7.1 COMMITMENT FEES. The Company shall pay to the Agent for
the account of the RC Lenders quarterly in arrears on each Quarterly Payment
Date a commitment fee (the "Commitment Fee") (calculated on the basis of a 360
day year for the actual days elapsed) equal to the product of the Commitment Fee
Base (as hereafter defined) and
(i) One-half of one per cent (1/2%), at any
time that the Consolidated Total Leverage
Ratio is greater than or equal to 5.50:1;
and
(ii) Three eighths of one per cent (3/8%),
at any time that the Consolidated Total
Leverage Ratio is greater than or equal to
4.00:1 but less than 5.50:1; and
(iii) One-quarter of one per cent (1/4%), at
any time that the Consolidated Total
Leverage Ratio is less than 4.00:1.
"Commitment Fee Base" means an amount at any time equal to (a) the amount of the
Revolving Credit Commitment less (b) the sum of the aggregate principal amount
of outstanding Revolver Loans, the face amount of outstanding Letters of Credit
and any Unreimbursed Drawings in respect of Letters of Credit. (Swing Loans
shall not reduce the Commitment Fee Base).
Any change in the percentage amount set forth in clauses (i) through (iii) of
this Subsection 1.7.1 shall be effective on the fifth (5th) Business Day
immediately following delivery of the Officers' Certificate described in
Subsection 1.8.3 (Officers' Certificate) below warranting such change (including
any Officers' Certificate delivered in connection with an Acquisition or
purchase of minority interest). In the event that any Officers' Certificate
referred to in clause (a) or (b) of
- 11 -
21
Subsection 1.8.3 is not delivered in a timely fashion, the percentage amount
shall be the highest rate set forth above effective on the fifth (5th) Business
Day after written notice to such effect is given by the Agent to the Company
until the fifth (5th) Business Day immediately following delivery of such
Officers' Certificate. The Commitment Fee shall begin to accrue from the Closing
Date and shall be shared by the RC Lenders entitled thereto in proportion to
their respective shares of the Revolving Credit Commitment.
1.7.2 LETTER OF CREDIT FEES AND FRONTING FEES. The Company
shall pay to the Agent for the account of the RC Lenders such letter of credit
fees as are described in Article 3 (Letters of Credit) below, except that the
Fronting Fee shall be paid only to the Issuing Bank.
1.7.3 OTHER FEES. The Company shall pay such other fees, if
any, as the Company has otherwise agreed to pay to the Agent, the Issuing Bank
and/or the Lenders.
1.8 INTEREST.
1.8.1 THE RATES. The Loans (other than Swing Loans) shall bear
interest at Company's option (subject to the limitation and conditions set forth
in this Section) at the Base Rate plus the Applicable Margin or at the Adjusted
LIBOR plus the Applicable Margin. Interest accruing at the Base Rate plus the
Applicable Margin shall be payable quarterly on each Quarterly Payment Date,
commencing with the first Quarterly Payment Date after the Closing Date.
Interest accruing at Adjusted LIBOR plus the Applicable Margin shall be payable
on the last day of each Interest Period, provided that if the Interest Period is
six (6) Months or longer, interest shall be payable on the ninetieth (90th) day
of the Interest Period, every ninetieth (90th) day thereafter until the end of
the Interest Period and on the last day of the Interest Period. Interest
calculated at the Base Rate plus the Applicable Margin shall be computed on the
basis of a 365/6 day year and interest calculated at the Adjusted LIBOR plus the
Applicable Margin shall be computed on the basis of a 360 day year.
1.8.2 APPLICABLE MARGIN. The term "Applicable Margin" when
used with respect to the Base Rate shall mean the following:
- 12 -
22
Consolidated Total Base Rate Base Rate
Leverage Applicable Margin Applicable Margin
Ratio for Revolving Loans and Term A Loans for Term B Loan
------------------ ------------------------------------ --------------------
Equal to or greater
than 6.50 1.250% 1.500%
Equal to or greater
than 6.00 but less than 6.50 0.875% 1.500%
Equal to or greater 0.625% 1.250%
than 5.50 but less than 6.00
Equal to or greater 0.375% 1.250%
than 5.00 but less
than 5.50
Less than 5.00 0.000% 1.250%
The term "Applicable Margin" when used with respect to
Adjusted LIBOR shall mean the following:
Consolidated Total Adjusted LIBOR Adjusted LIBOR
Leverage Applicable Margin for Applicable Margin
Ratio Revolving Loans and Term A Loans for Term B Loans
------------------ -------------------------------- ------------------
Equal to or greater 2.500% 2.750%
than 6.50
Equal to or greater 2.125% 2.750%
than 6.00 but less
than 6.50
Equal to or greater 1.875% 2.500%
than 5.50 but less
than 6.00
Equal to or greater 1.625% 2.500%
than 5.00 but less
than 5.50
- 13 -
23
Equal to or greater 1.375% 2.500%
than 4.50 but less
than 5.00
Equal to or greater 1.125% 2.500%
than 4.00 but less
than 4.50
Less than 4.00 0.875% 2.500%
1.8.3 OFFICERS' CERTIFICATE.
(a) The Company shall provide the Agent with an
Officers' Certificate in the form annexed to 27 this Agreement as Exhibit D
within sixty (60) days after the close of each of the first three quarters of
each fiscal year of the Company and within one hundred twenty (120) days after
the close of each fiscal year of the Company setting forth the computations and
information as of the end of the preceding fiscal quarter necessary for the
determination of the Applicable Margin and the percentage amount applicable to
the Commitment Fee.
(b) In addition, at any time that the Company
requests an advance, or a series of related advances, in an amount in excess of
$25,000,000 for the purpose of effecting an Acquisition or purchasing a minority
interest in any direct or indirect Subsidiary of the Company (whether in
connection with a buy-sell agreement, a put, a call or otherwise), the Company
shall provide the Agent with an Officers' Certificate on a Pro Forma Basis
(along with the request for advance as required by Section 1.6 (Borrowing
Notice) above). Such Officers' Certificate on Pro Forma Basis shall set forth
the calculation of the Consolidated Leverage Ratio after giving pro forma effect
to the proposed Loans and transactions contemplated in connection therewith.
(c) In addition, at any time that the Company makes a
disposition of assets in accordance with Section 7.7 (Mergers and Dispositions)
below and prepays the Loans in accordance with Subsection 1.1.5 (Commitment
Reductions in Connection with Certain Asset Sales) above or Subsection 1.3.6
(Mandatory Prepayments in Connection with Asset Sales) in an amount in excess of
$25,000,000 (whether in one prepayment or a series of related prepayments), the
Company may provide the Agent with an Officers' Certificate on a Pro Forma Basis
(along with the notice of prepayment). Such Officers' Certificate on Pro Forma
Basis shall set forth the calculation of the Consolidated Leverage Ratio after
giving pro forma effect to the proposed prepayment of the Loans, the disposition
of the assets and transactions contemplated in connection therewith.
The determination of the Applicable Margin shall be effective with respect to
the Loans as of the fifth (5th) Business Day immediately following delivery of
any such Officers' Certificate. In the event that any Officers' Certificate
required by paragraph (a) or (b) above is not delivered in a
- 14 -
24
timely fashion, the Applicable Margin shall be the Applicable Margin otherwise
applicable if the Consolidated Leverage Ratio is equal to or greater than 6.50,
effective on the fifth (5th) Business Day after written notice to such effect is
given by the Agent and continuing until any such Officers' Certificate is
delivered to Agent, whereupon, in the latter event any required change to the
Applicable Margin shall be effective with respect to the Loans commencing as of
the fifth (5th) Business Day immediately following delivery of such Officers'
Certificate.
1.8.4 LIBOR ELECTION. (a) Unless otherwise elected by the
Company, the Loans shall bear interest at the Base Rate plus the Applicable
Margin. The Company may, upon three (3) Eurodollar Business Days' prior written
notice to the Agent in the form of Exhibit C to this Agreement, and subject to
and upon the terms and conditions set forth in this Agreement, elect to borrow
money that will bear interest based on Adjusted LIBOR plus the Applicable Margin
or to convert a portion of the Loans to bear interest based on Adjusted LIBOR
plus the Applicable Margin. Any such election may be made with respect to a
principal amount designated in such notice and equal to at least Five Million
Dollars ($5,000,000) and integral multiples of One Million Dollars ($1,000,000)
in excess of such minimum, for the period next ensuing, which period ("Interest
Period") shall equal one, two, three or six Months or, if available in the
opinion of all Lenders, one year, as designated by Company in its notice.
(b) The Company may not convert any outstanding Loans
to a borrowing bearing interest based on Adjusted LIBOR plus the Applicable
Margin or otherwise elect an interest rate based on Adjusted LIBOR plus the
Applicable Margin if at the time of such conversion or election there shall
exist an Event of Default or Potential Event of Default under Subsections 8.1.1
(Failure to Pay Principal), 8.1.2 (Failure to Pay Interest, Etc.), 8.1.3
(Cross-Default) or 8.1.6 (Certain Covenant Defaults), but, in the case of
Subsection 8.1.6, only if the underlying default relates to breach of the
covenants set forth in Article 6 (Financial Covenants).
(c) If an interest rate based on Adjusted LIBOR plus
the Applicable Margin is elected, such interest rate shall remain in effect for
the Interest Period selected and such interest rate shall not otherwise be
converted to another interest rate prior to the expiration of the Interest
Period except as otherwise required by this Section. If an Interest Period with
respect to a rate of interest based on Adjusted LIBOR plus the Applicable Margin
would otherwise commence on a day which is not a Eurodollar Business Day, such
Interest Period shall commence on the next Eurodollar Business Day.
(d) The principal accruing interest based on Adjusted
LIBOR plus the Applicable Margin shall, commencing on the last day of the
Interest Period, bear interest at the Base Rate plus the Applicable Margin
unless prior thereto the Agent has received a notice pursuant to this Section
(and within the time periods required) that an elective rate based on Adjusted
LIBOR plus the Applicable Margin shall be effective commencing on such date with
respect to any or all of such principal.
- 15 -
25
(e) The Company may not elect an interest rate based
on Adjusted LIBOR plus the Applicable Margin if such election would require the
Agent to administer concurrently Loans (including Revolving Loans, Term A Loans
and Term B Loans collectively) for more than a combination of elective rates of
interest based on Adjusted LIBOR or Interest Periods that exceed an aggregate of
eight (8).
(f) If an Interest Period would otherwise end on a
day which is not a Eurodollar Business Day, such Interest Period shall be
extended to the next Eurodollar Business Day, unless such next Eurodollar
Business Day shall fall in the next calendar month in which event such Interest
Period shall end on the immediately preceding Eurodollar Business Day.
(g) The Company may not elect an interest rate based
on Adjusted LIBOR plus the Applicable Margin with respect to any portion of the
Loans if, as a result of a reduction in the Revolving Credit Commitment, a
scheduled payment or otherwise, the Company knows that it would be required to
repay a portion of the Loans bearing interest based on Adjusted LIBOR plus the
Applicable Margin on a day other than the last day of any applicable Interest
Period or Periods.
(h) No Interest Period may be elected that would end
later than the Revolver Maturity Date (for Revolver Loans) or the Term A
Maturity Date (for Term A Loans) or the Term B Maturity Date (for Term B Loans).
1.8.5 DEFINITION OF ADJUSTED LIBOR. As used in this Agreement,
the term "Adjusted LIBOR" shall mean the rate per annum (rounded upwards if
necessary to the nearest one-hundredth of one percent) determined by the Agent
to be equal to the quotient of (a) LIBOR, divided by (b) a number equal to 1.00
minus the Reserve Percentage.
As used herein, "LIBOR" means the rate of interest
per annum determined on the basis of the rate for deposits in Dollars in minimum
amounts of at least $5,000,000 for a period equal to the applicable Interest
Period which appears on the Telerate Page 3750 at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of the applicable
Interest Period (rounded upward, if necessary, to the nearest one-sixteenth of
one percent (1/16%)). If, for any reason, such rate does not appear on Telerate
Page 3750, then "Adjusted LIBOR" shall be determined by the Agent to be the
arithmetic average (rounded upward, if necessary, to the nearest one-sixteenth
of one percent (1/16%)) of the rate per annum at which deposits in Dollars would
be offered by first class banks in the London interbank market to the Agent at
approximately 11:00 a.m. (London time) two (2) Eurodollar Business Days prior to
the first day of the applicable Interest Period for a period equal to such
Interest Period and in an amount substantially equal to the amount of the
applicable Loan.
As used in this Agreement, the term "Reserve
Percentage" means, for any day, the percentage (expressed as a decimal and
rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in
effect for such day as prescribed by the Federal Reserve Board (or any
- 16 -
26
successor) for determining the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves) in respect of
eurocurrency liabilities or any similar category of liabilities for a member
bank of the Federal Reserve System in New York City.
1.8.6 ADDITIONAL COSTS, UNAVAILABILITY, ETC.
(a) The Company shall pay to the Agent for the
account of the affected Lender or Lenders within thirty (30) days of demand such
additional sums as will compensate such Lender or Lenders for the effect of any
change in reserve requirements or any taxes, duties or other charges (or changes
in the amount thereof) based upon an allocation by such affected Lender or
Lenders of the additional sums payable as a result of the Loans or Letters of
Credit. No failure on the part of the Agent or any Lender to demand compensation
for any increased costs in any period shall constitute a waiver of any Lender's
right to demand such compensation at any time, provided, however, that the
Company shall not be required to pay any such compensation for any such
increased costs incurred more than ninety (90) days prior to the making of the
affected Lender's initial such request. Each affected Lender shall certify the
amount of such cost to the Company and provide the Company with a written
statement setting forth the cost claimed and the calculations used in
determining such cost, which certification and statement shall be conclusive in
the absence of manifest error.
(b) In the event that the Company shall have elected
an interest option and period based on Adjusted LIBOR plus the Applicable Margin
and the Requisite Lenders shall have reasonably determined that quotations of
interest rates for the relevant deposits referred to in the definition of
Adjusted LIBOR are not being provided in the relevant amounts or for the
relevant Interest Period for purposes of determining an interest rate based on
Adjusted LIBOR plus the Applicable Margin or that by reason of circumstances
affecting the London Interbank Eurocurrency Market adequate and reasonable means
do not exist for ascertaining Adjusted LIBOR applicable to such deposits for the
specified Interest Period, the Agent shall promptly give notice of such
determination to the Company, and no part of the Loans shall thereafter be
available at Adjusted LIBOR for the specified Interest Period until the
Requisite Lenders determine that the circumstances described above cease to
exist. At such time, Agent shall notify the Company that Adjusted LIBOR is again
available; however, neither Agent nor any of the Lenders shall have any
liability for failure to give such notice. A determination by the Requisite
Lenders shall be conclusive and binding upon the Company.
(c) In the event that by reason of any change in any
law, regulation or official directive, or in the interpretation thereof by any
governmental body charged with the administration thereof, any Lender becomes
subject to restrictions on the amount of any category of deposits or other
liabilities of such Lender which includes deposits by reference to which
Adjusted LIBOR is determined as set forth in this Agreement or a category of
extensions of credit or other assets of such Lender which includes any portion
of the Loans as to which a rate based on Adjusted LIBOR has been elected, then,
if such Lender so elects by notice to the Company setting out the basis of such
election (with a copy to the Agent), the obligation of such
- 17 -
27
Lender to permit additional borrowings under the Loans at a rate based on
Adjusted LIBOR shall be suspended until such change ceases to be in effect and,
during such suspension, such Lender's portion of all borrowings under the Loans
requested to be made at a rate based on Adjusted LIBOR shall instead bear
interest at a rate determined by reference to the Base Rate and Applicable
Margin.
(d) Notwithstanding anything herein contained to the
contrary, if, prior to or during any Interest Period with respect to which a
rate based on Adjusted LIBOR plus the Applicable Margin is in effect, any change
in any law, regulation or official directive, or in the interpretation thereof,
by any governmental body charged with the administration thereof, shall make it
unlawful for any Lender to fund or maintain its funding in Eurodollars of any
portion of the principal amount of the Loans or otherwise to give effect to such
Lender's obligations as contemplated by this Agreement, (i) the affected Lender
shall by written notice to the Company and the Agent declare the Company's right
to elect an interest rate based on Adjusted LIBOR plus the Applicable Margin
with respect to such Lender's share of the Loans to be suspended, (ii) any
portion of the Loans made by the affected Lender bearing interest at a rate
based on Adjusted LIBOR plus the Applicable Margin shall forthwith cease to bear
interest at such rate, and interest on such portion of the Loans shall from and
after such date be calculated at a rate based upon the Base Rate plus the
Applicable Margin and (iii) the Company shall indemnify the affected Lender
against any loss or expense suffered by it in liquidating prior to maturity
Eurodollar deposits which correspond to its pro rata share of the principal
amount of the Loans to which a rate based on Adjusted LIBOR was applicable. The
affected Lender shall certify the amount of such loss or expense to the Company
and such certification shall be conclusive in the absence of manifest error.
(e) If either (i) the introduction of, or any change
in, or in the interpretation of, any applicable law or (ii) compliance with any
guideline or request from any central bank or comparable agency or other
governmental authority (whether or not having the force of law), has or would
have the effect of reducing the rate of return on the capital of, or has
affected or would affect the amount of capital required to be maintained by, any
Lender or any corporation controlling such Lender as a consequence of, or with
reference to the Commitments and other commitments of this type, below the rate
which the Lender or such other corporation could have achieved but for such
introduction, change or compliance, then within five (5) Business Days after
written demand by any such Lender, the Borrower shall pay to such Lender from
time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to the Borrower and the Agent by such Lender, shall,
in the absence of manifest error, be presumed to be correct and binding for all
purposes.
1.8.7 SOURCE OF FUNDS. Although each Lender may elect to
purchase in the London Inter-Bank Eurocurrency Market one or more Eurodollar
deposits in order to fund or maintain its funding of its pro rata share of the
principal amount of the Loans with respect to which the Company has elected a
rate based upon Adjusted LIBOR plus the Applicable Margin
- 18 -
28
during the Interest Period in question, it is acknowledged that the provisions
of this Agreement relating to such funding are included only for the purpose of
determining the rate of interest to be paid and any other amounts owing under
this Agreement in connection with such election, and each Lender shall be
entitled to fund and maintain its funding of all or any part of that portion of
the principal amount of the Loans in any manner it sees fit. Nonetheless, all
such determinations shall be made as if each Lender had actually funded and
maintained that portion of the principal amount of the Loans to which a rate
based upon Adjusted LIBOR plus the Applicable Margin is applicable during such
Interest Period through the purchase of Eurodollar deposits in an amount equal
to its pro rata share of the principal amount of the Loans to which a rate based
upon Adjusted LIBOR plus the Applicable Margin is applicable and having a
maturity corresponding to such Interest Period.
1.8.8 DEFAULT RATE. Anything in this Agreement to the contrary
notwithstanding, (a) after maturity, whether scheduled, by acceleration or
otherwise, and whether prior to or after a judgment against the Company, or (b)
during the existence of an Event of Default specified in Subsection 8.1.1
(Failure to Pay Principal), 8.1.2 (Failure to Pay Interest, Etc.) or 8.1.3
(Cross-Default) or (c) during the existence of an Event of Default specified in
Subsection 8.1.6 (Covenant Defaults) as a result of a breach of the covenants
set forth in Article 6 (Financial Covenants), the Loans shall bear interest at
two percent (2%) per annum plus the interest rate(s) otherwise in effect from
time to time pursuant to this Agreement (the "Default Rate").
1.9 PURPOSE.
Upon satisfaction of the conditions and other requirements set
forth in this Agreement, the proceeds of the Loans shall be used by the Company:
(i) to refinance existing Indebtedness on the Closing Date; (ii) to make
Restricted Payments permitted under this Agreement; (iii) to finance
acquisitions, investments and Capital Expenditures permitted under this
Agreement; and (iv) for working capital needs and general corporate purposes.
1.10 ADDITIONAL PROVISIONS CONCERNING PREPAYMENTS AND FAILURE TO
BORROW.
1.10.1 INTEREST ON AMOUNTS PREPAID. At any time that the
Company makes a prepayment of principal, it shall pay accrued interest on the
amount so prepaid.
1.10.2 BREAKAGE. In the event that the Company makes a
prepayment (whether voluntary or mandatory) of any Loans bearing interest at a
rate based on Adjusted LIBOR plus the Applicable Margin for a specified Interest
Period on a day other than the last day of such Interest Period or fails to
borrow on the date specified in the applicable borrowing notice (or convert to a
Loan based on Adjusted LIBOR on the date specified in the LIBOR election) any
amount which the Company shall have requested to borrow at a rate based on
Adjusted LIBOR plus Applicable Margin, the Company will pay to the Agent, upon
demand, for the account of the affected Lenders any cost or expense incurred as
a result thereof. Each affected Lender shall
- 19 -
29
certify the amount of such cost or expense to the Company and provide the
Company with a written statement setting forth the cost or expense claimed and
the calculations used in determining such loss and expense, which certification
and statement shall be conclusive in the absence of manifest error.
1.10.3 CERTAIN PRESUMPTIONS REGARDING APPLICATION OF
PREPAYMENTS. Unless otherwise provided in this Agreement or other Loan
Documents, prepayments shall be applied first to fees, then to interest (to the
extent then payable) and then to principal with respect to the portions of the
Loans accruing interest at a rate based upon the Base Rate plus the Applicable
Margin, and then to those portions of the Loans accruing interest at a rate
based upon Adjusted LIBOR plus the Applicable Margin and among such portions of
the Loans accruing interest at rates based upon Adjusted LIBOR plus the
Applicable Margin to such portions with the earliest expiring Interest Periods.
1.11 REPLACEMENT OF LENDER. If any Lender requests compensation
pursuant to Subsection 1.8.6 (Additional Costs, Unavailability, Etc.) above, the
Company, upon three Business Days' notice, may require that such Lender transfer
all of its right, title and interest under this Agreement, such Lender's Notes
and the other Loan Documents to any Eligible Assignee identified by the Company
with the consent of the Agent, subject to the following: (a) such proposed
transferee shall agree to assume all of the obligations of such Lender for
consideration equal to the outstanding principal amount of such Lender's Loans,
together with interest thereon to the date of such transfer, and satisfactory
arrangements are made for payment to such Lender of all other amounts payable
hereunder to such Lender on or prior to the date of such transfer (including any
fees accrued hereunder and any amounts that would be payable under Subsection
1.10.2 (Breakage) as if all of such Lender's Loans were being prepaid in full on
such date) and (b) if such Lender being replaced has requested compensation
pursuant to Subsection 1.8.6, such proposed transferee's aggregate requested
compensation, if any, pursuant to Subsection 1.8.6 with respect to such replaced
Lender's Loans is lower than that of the Lender replaced. Without prejudice to
the survival of any other agreement of the Company hereunder, the agreements of
the Company contained in this Section 1.11 and in Section 11.15
(Indemnification) (without duplication of any payments made to such Lender by
the Company or the proposed transferee) shall survive for the benefit of any
Lender replaced under this Section 1.11 with respect to the time prior to such
replacement.
ARTICLE 2
MECHANICS OF PAYMENTS; TAX FORMS
2.1 COMPANY PAYMENT.
All payments on account of principal and interest on the
Loans, the Commitment Fee, and all other amounts otherwise payable to Lenders
under this Agreement (other than payments in respect of Swing Loans which shall
be made directly to the Swing Lender), shall be
- 20 -
30
made to the Agent in U.S. Dollars which are immediately available (unless
otherwise specified) by noon (Philadelphia, PA time), on the due date for such
payment, at the Agent's principal office (which as of the date of this Agreement
is at Xxx Xxxxx Xxxx Xxxxxx, Xxxxxxxxxxxx, XX 19107) specifying the amount and
date of payment, re: Susquehanna Media Co. (and if by wire transfer, in
accordance with the instructions on the signature page to this Agreement
executed by First Union), or to such other accounts or Persons or at such other
place as the Agent may direct in writing. The Company hereby authorizes the
Lenders (after receipt of notice from the Agent to do so) to (i) apply to the
aforesaid payments, up to the amount of such payments, any portion of the
balance of any account maintained by the Company for the purpose of facilitating
said payments, and/or (ii) cause the aforesaid payments to be made, if not paid
by the Company when due, by drawing under the loan facilities provided under
this Agreement, or making additional loans, (and any such loan shall be subject
to interest at the Default Rate and shall be secured by all of the security
interests granted pursuant to the Loan Documents); provided, however, that
notwithstanding the making by the Lenders of any of the aforesaid payments as
set forth in this sentence, the failure of the Company to make any of the
aforesaid payments when due shall constitute an Event of Default. The failure by
the Company to make a payment by noon shall not constitute an Event of Default
if such payment is made on the due date; however, any payment made after such
time on such due date shall be deemed made on the next Business Day for the
purpose of interest and reimbursement calculations. Except as otherwise set
forth in this Agreement, such payments shall be deemed to be made to the Lenders
in proportion to their respective shares of the applicable amount due. The Agent
shall promptly (on the same day if payment has been received by the Agent by
2:00 p.m. (Philadelphia, PA time) on such day, and including the additional per
diem interest and reimbursement amount paid by Company if such payment was made
by the Company to the Agent after noon on such day) remit to each Lender its pro
rata share of such payment in immediately available funds, except that all
reimbursement payments in respect of losses, out-of-pocket expenses, funding
losses or like matters shall be retained by the Agent or remitted to the Lenders
according to their respective appropriate entitlement to such reimbursement. The
requirement that the Company pay any amount to a Lender shall be discharged by
the Company when such amount of funds are received by the Agent to be disbursed
to such Lender.
2.2 LENDER REQUIRED PAYMENT.
Unless the Agent shall have been notified by a Lender prior to
noon (unless otherwise specified in this Agreement) on the date on which it is
scheduled to fund to the Agent a portion of the Commitment or any other amount
payable by a Lender under this Agreement (such payment being the "Lender
Required Payment"), which notice will be effective upon receipt, that it does
not intend to make the Lender Required Payment to the Agent, the Agent may
assume that the Lender Required Payment has been made and may, in reliance upon
such assumption (but shall not be required to), make the amount thereof
available to the Company (or other appropriate party) on such date and, if such
Lender has not in fact made the Lender Required Payment to the Agent, the
Company, if applicable, or such Lender shall, on demand, repay to the Agent the
amount so made available together with interest thereon 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
- 21 -
31
amount at a rate per annum equal to the Federal Funds Rate for such day (as
determined by the Agent). Any Lender that fails to make a Lender Required
Payment upon receipt of notice therefor, shall not be entitled to vote on any
matters that it otherwise would be entitled to vote on under this Agreement
until it makes such payment.
Notwithstanding anything to the contrary contained herein, any
lender, (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPFV") the option to fund all or any part of any Loan that such Granting Lender
would otherwise be obligated to fund pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPFV to fund any Loan,
and (ii) if an SPFV elects not to exercise such option or otherwise fails to
fund all or any part of such Loan, the Granting Lender shall be obligated to
fund such Loan pursuant to the terms hereof. The funding of a Loan by an SPFV
hereunder shall utilize the Revolving Credit Commitment of the Granting Lender
to the same extent, and as if, such Loan were funded by such Granting Lender.
Each party hereto hereby agrees that no SPFV shall be liable for any indemnity
or payment under this Agreement for which a Lender would otherwise be liable for
so long as, and to the extent, the Granting Lender provides such indemnity or
makes such payment. Notwithstanding anything to the contrary contained in this
Agreement, any SPFV may disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or Loans to any rating agency, commercial
paper, dealer or provider of any surety or guarantee to such SPFV. This Section
may not be amended without the prior written consent of each Granting Lender,
all or any part of whose Loan is being funded by an SPFV at the time of such
amendment. No SPFV shall be entitled to any indemnities or additional costs or
other amounts referred to in Subsection 1.8.6 (Additional Costs, Unavailability,
Etc.) or breakage pursuant to Subsection 1.10.2 (Breakage) or similar payments
except to the extent it shares in payments made to the Granting Lender pursuant
to entitlements of the Granting Lender hereunder.
2.3 COMPANY REQUIRED PAYMENT.
Unless the Agent shall have been notified by the Company in
writing prior to the date on which the Company is scheduled to make a payment to
the Agent for the account of one or more of the Lenders or the Issuing Bank
(such payment being the "Company Required Payment"), which notice shall be
effective upon receipt, that the Company does not intend to make the Company
Required Payment to the Agent, the Agent may assume that the Company Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make such amount available to the Lenders entitled thereto on
such date. If the Company has not in fact made the Company Required Payment to
the Agent, the recipient(s) of such payment shall, on demand, repay to the Agent
the amount so made available together with interest 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 Federal Funds Rate for such day (as determined by the Agent).
2.4 TAX FORMS.
- 22 -
32
At least five (5) Business Days prior to the first date on
which interest or fees are payable under this Agreement for the account of any
Lender, each Lender that is not incorporated or organized under the laws of the
United States of America or a state thereof shall deliver to each of the Company
and the Agent two duly completed copies of United States Internal Revenue
Service Form W-9, 4224 or 1001, or other applicable form prescribed by the
Internal Revenue Service of the United States, certifying in either case that
such Lender is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal income taxes, or
are subject to such tax at a reduced rate under an applicable tax treaty, or
Form W-8 or other applicable form or a certificate of the Lender indicating that
no such exemption or reduced rate is allowable with respect to such payments.
Each Lender which so delivers a Form W-8, W-9, 4224 or 1001 further undertakes
to deliver to each of the Company and the Agent two additional copies of such
form (or a successor form) on or before the date that such form expires or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent form so delivered by it, and such amendments thereto or extensions
or renewals thereof as may be reasonably requested by the Company or the Agent,
either certifying that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes or are subject to such tax at a reduced rate under an
applicable tax treaty or stating that no such exemption or reduced rate is
allowable. The Agent shall be entitled to withhold United States federal income
taxes at the full withholding rate unless the Lender establishes an exemption or
at the applicable reduced rate as established pursuant to the above provisions.
ARTICLE 3
LETTERS OF CREDIT
3.1 LETTERS OF CREDIT.
3.1.1 COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the
requirements set forth below, the Company may use a portion of the Revolving
Credit Commitment, which portion shall not exceed Fifty Million Dollars
($50,000,000) (the "Letter of Credit Sublimit") for the purpose of causing the
Issuing Bank to issue standby Letters of Credit for the account of the Company,
provided that (i) the Company executes and delivers a letter of credit
application and reimbursement agreement in a form acceptable to the Issuing Bank
and complies with any conditions to the issuance of such Letter of Credit
(including the payment of any applicable fees) set forth therein; (ii) the
Issuing Bank approves the form of such Letter of Credit; (iii) such Letter of
Credit bears an expiration date not later than the Revolver Maturity Date; (iv)
the Issuing Bank receives a request for issuance three (3) Business Days prior
to the date of issuance (unless the Issuing Bank, in its sole and absolute
discretion, agrees to shorter notice in any instance) and (v) the conditions set
forth in Section 4.2 (Requirements for Each Loan/Letter of Credit) are satisfied
as of the date of the issuance of such Letter of Credit.
- 23 -
33
3.1.2 LIMITATION ON AMOUNT. The Issuing Bank shall not be
obligated or permitted under this Section 3.1 to issue any Letter of Credit for
the account of the Company to the extent that the sum of (i) the amount that
would be available to be drawn under the proposed Letter of Credit plus (ii) the
sum of all amounts available to be drawn under outstanding Letters of Credit
plus (iii) any Unreimbursed Drawings would exceed the lesser of (a) the Letter
of Credit Sublimit and (b) the Available Commitment. It is acknowledged that
First Union has previously issued a $125,000 Letter of Credit for the benefit of
California Public Employees Retirement Fund, which shall, as long as it remains
outstanding, be considered a Letter of Credit issued under this Section 3.1.
3.1.3 OBLIGATIONS ABSOLUTE. The Company's obligations under
this Section 3.1 (including any obligations to repay draws under Letters of
Credit issued hereunder) shall be absolute and unconditional under any and all
circumstances and irrespective of the occurrence of any Potential Event of
Default or Event of Default or any condition precedent whatsoever or any setoff,
counterclaim or defense to payment which the Company may have or have had
against the Issuing Bank, the Agent, any Lender or any beneficiary of a Letter
of Credit. The Company further agrees that the Issuing Bank, the Agent and the
Lenders shall not be responsible for, and the Company's reimbursement
obligations shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even if such documents
should in fact prove to be in any or all respects invalid, fraudulent or forged,
or any dispute between or among the Company, the beneficiary of any Letter of
Credit or any financing institution or other party to which any Letter of Credit
may be transferred or any claims or defenses whatsoever of the Company against
the beneficiary of any Letter of Credit or any such transferee. The Issuing
Bank, the Agent and the Lenders shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit. Any action
taken or omitted by the Issuing Bank, the Agent or any Lender under or in
connection with each Letter of Credit and the related drafts and documents, if
done in good faith and without willful misconduct or gross negligence on the
part of the Issuing Bank, the Agent or the Lenders, shall be binding upon the
Company and shall not result in any liability on the part of the Issuing Bank,
the Agent or any Lender to the Company.
3.1.4 RELIANCE BY ISSUING BANK. The Issuing Bank shall be
entitled to rely, and shall be fully protected in relying upon, any Letter of
Credit, draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document believed by it to be genuine and correct and believed by
it to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts selected by the Issuing Bank and the Agent.
3.1.5 FEES. The Company shall pay to the Agent for the account
of the RC Lenders a fee equal to the product of (i) the Applicable Margin which
would apply to the face amount of the Letter of Credit if it were part of the
Revolving Loan and was bearing interest at a
- 24 -
34
rate based on Adjusted LIBOR multiplied by (ii) the face amount of each Letter
of Credit (the "Letter of Credit Fees"). In addition, the Issuing Bank shall
receive a fronting fee equal to 1/8 of 1% per annum of the face amount of all
outstanding Letters of Credit ("Fronting Fee"). All Letter of Credit Fees and
Fronting Fees shall be payable quarterly in arrears on each Quarterly Payment
Date based on the number of days during each quarter that a Letter of Credit is
outstanding during such quarter (calculated on the basis of a 360-day year). The
Company shall also pay to the Issuing Bank all of the Issuing Bank's standard
fees and charges for the opening, amendment, modification, presentation or
cancellation of a Letter of Credit and otherwise in respect of a Letter of
Credit and shall execute all of the Issuing Bank's standard agreements in
connection with the issuance of the Letter of Credit.
3.1.6 PARTICIPATION BY RC LENDERS. The Issuing Bank shall
notify the Agent promptly upon receipt of notice of an intended draw under a
Letter of Credit, whereupon the Agent shall give written, telecopied or
telegraphic notice to each of the other RC Lenders of its pro rata share of such
draw and the scheduled date thereof. After receipt of such notice, and whether
or not an Event of Default or Potential Event of Default then exists, each RC
Lender shall make such arrangements as are necessary to assure that its share of
such draw shall be immediately available (in U.S. dollars) to the Agent no later
than noon (Philadelphia, PA time), on the date specified in the Agent's notice,
which shall be no earlier than the day after the date the Agent's notice is
given. Any amount paid by Agent and RC Lenders pursuant to a draw made under a
Letter of Credit shall constitute a borrowing under the Available Commitment,
provided that if an Event of Default or Potential Event of Default exists at the
time of a draw, the Company shall immediately reimburse the amount of such draw
to the Agent for the benefit of the RC Lenders.
To effectuate the purposes of this Subsection 3.1.6,
effective immediately upon the issuance of each Letter of Credit and without
further action on the part of the Issuing Bank, the Issuing Bank shall be deemed
to have granted to each RC Lender, and each RC Lender shall be deemed to have
irrevocably purchased and received from the Issuing Bank, without recourse or
warranty, an undivided interest and participation in such Letter of Credit to
the extent of each RC Lender's percentage of the Revolving Credit Commitment.
Further, each Lender acknowledges and agrees that it shall be absolutely liable,
to the extent of its percentage of the Revolving Credit Commitment, to fund on
demand or reimburse the Issuing Bank on demand for the amount of each draft paid
by the Issuing Bank under each Letter of Credit to the extent that such amount
is not immediately reimbursed by the Company.
3.1.7 STANDARD OF CONDUCT. The Issuing Bank shall be entitled
to administer each Letter of Credit in the ordinary course of business and in
accordance with its usual practices, modified from time to time as it deems
appropriate under the circumstances, and shall be entitled to use its discretion
in taking or refraining from taking any action in connection herewith as if it
were the sole party involved. Any action taken or omitted to be taken by the
Issuing Bank under or in connection with any Letter of Credit, if taken or
omitted in the absence
- 25 -
35
of gross negligence or willful misconduct, shall not create for the Issuing Bank
any resulting liability to any other Lender.
3.1.8 CASH COLLATERAL ACCOUNT. In the event that (a) the
excess of (i) the amount of the Revolving Credit Commitment over (ii) the amount
of outstanding Revolving Loans and Swing Loans is less than (b) the face amount
of outstanding Letters of Credit and Unreimbursed Drawings for any reason
(whether because the Revolving Credit Commitment has been reduced or terminated
or otherwise), the Company shall forthwith pay to the Agent an amount equal to
the excess of the amount described in clause (b) above over the amount described
in clause (a) above. Such amount shall first be applied against Unreimbursed
Drawings and the remainder shall be maintained by the Agent in an interest
bearing cash collateral account in the name of and for the benefit of the Agent
and the Lenders to secure the repayment of Company's obligation to reimburse the
Lenders for drafts drawn or which may be drawn under outstanding Letters of
Credit until such time as all outstanding Letters of Credit have expired or been
cancelled.
3.1.9 OBLIGATIONS SECURED. The obligations of the Company to
the Issuing Bank, the Agent and the Lenders in respect of Letters of Credit
shall be guaranteed pursuant to the Loan Documents and shall be secured by the
Collateral.
ARTICLE 4
CONDITIONS TO FUNDINGS AND
ISSUANCE OF LETTERS OF CREDIT
4.1 CONDITIONS TO INITIAL FUNDING. The obligation of the Lenders to
make the initial Loans or the Issuing Bank to issue the initial Letters of
Credit pursuant to this Agreement shall be subject to the fulfillment, to the
satisfaction of the Lenders and Issuing Bank (unless otherwise specified), of
the following conditions (the date of such fulfillment being the "Closing
Date"). The making of any Loan by any Lender on the Closing Date or the issuance
of any Letters of Credit by the Issuing Bank shall constitute evidence of such
Lender's or Issuing Bank's satisfaction with the fulfillment thereof.
4.1.1 EXECUTION OF THIS AGREEMENT. This Agreement shall have
been duly executed by the Company, each Lender, each Issuing Bank and the Agent.
4.1.2 THE NOTES. The Company shall have delivered duly
executed Notes to each of the Lenders that requests a Note.
4.1.3 SECURITY AGREEMENT. The Company and each Subsidiary of
the Company shall have executed and delivered to the Agent a Security Agreement
(as amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof, the "Security Agreement") in substantially the form
annexed to this Agreement as Exhibit E, together with
- 26 -
36
such Uniform Commercial Code financing statements as are necessary to perfect
the security interests created by such Security Agreement and together with such
landlord waivers as the agent shall request, provided, that fixture filings will
only be delivered to the extent that the Company is able to provide the
necessary property descriptions without undue difficulty unless the Agent
otherwise requests.
4.1.4 GUARANTY AND SURETYSHIP AGREEMENT. Each Subsidiary of
the Company shall have executed and delivered to the Agent a Guaranty and
Suretyship Agreement (as amended, modified or supplemented from time to time the
"Subsidiary Suretyship") in substantially the form annexed to this Agreement as
Exhibit F.
4.1.5 PLEDGE AGREEMENTS.
(a) SPC shall own directly all of the common stock of
the Company and shall have executed and delivered to the Agent a Pledge
Agreement (as the same may be amended, modified or supplemented from time to
time, the "SPC Pledge") in substantially the form and annexed to this Agreement
as Exhibit G, together with the stock certificates, assignment powers and
financing statements required thereunder.
(b) The Company shall own directly all of the capital
stock of the Subsidiaries specified as being owned by it on Schedule 9.1 hereto
and the Company shall have executed and delivered to the Agent a Pledge
Agreement (as the same may be amended, modified or supplemented from time to
time, the "Company Pledge") in substantially the form annexed to this Agreement
as Exhibit H, together with the stock certificates, assignment powers and
financing statements required thereunder. (The Company represents that except
for certain non-voting stock of BlazeNet and Susquehanna Radio, all of the
capital stock of the Subsidiaries will be, as of the Closing Date, pledged
pursuant to one or more Pledge Agreements.)
(c) The Subsidiaries of the Company shall own
directly all of the capital stock of the Subsidiaries specified as being owned
by them on Schedule 9.1 hereto and all of the partnership interests in Hyperion
Susquehanna Telecommunications, Mt. Diablo Group and Senior Road Tower
Partnership reflected on said Schedule 9.1, and such Subsidiaries shall have
executed and delivered to the Agent a Pledge Agreement (as amended, modified and
supplemented from time to time, "Subsidiary Pledge") in substantially the form
annexed to this Agreement as Exhibit I, together with the stock certificates,
assignment powers and financing statements required thereunder.
(d) The shareholders of the Company and the Company's
Subsidiaries other than SPC, the Company, its Subsidiaries and Xxxxxxx (and
other than the owners of the non-voting stock of BlazeNet and Susquehanna Radio)
(collectively, the "Other Shareholders") shall own directly the capital stock
and/or partnership interests of the Company and its Subsidiaries specified as
being owned by them on Schedule 9.1. The Other Shareholders shall have executed
and delivered to the Agent a Pledge Agreement (as amended, supplemented and
modified from
- 27 -
37
time to time, the "Other Shareholders Pledge") in substantially the form annexed
to this Agreement as Exhibit J, together with the stock certificates, assignment
powers and financing statements required thereunder.
(e) Xxxxxxx shall own directly the capital stock of
the Subsidiaries of the Company specified as being owned by it on Schedule 9.1
hereto. Xxxxxxx shall have executed and delivered to the Agent a Pledge
Agreement (as amended, modified or supplemented from time to time, the "Xxxxxxx
Pledge") in substantially the form annexed to this Agreement as Exhibit K,
together with the stock certificates, assignment powers and financing statements
required thereunder.
4.1.6 SUBORDINATION AGREEMENTS.
(a) SPC shall have executed and delivered to the
Agent a Subordination Agreement (as amended, modified or supplemented from time
to time "SPC Subordination Agreement") in substantially the form and annexed to
this Agreement as Exhibit L.
(b) The Other Shareholders shall have executed and
delivered to the Agent a Subordination Agreement (as amended, modified or
supplemented from time to time the "Shareholder Subordination Agreement") in
substantially the form annexed to this Agreement as Exhibit M.
(c) Xxxxxxx shall have executed and delivered to the
Agent a Subordination Agreement (as amended, modified or supplemented from time
to time, the "Xxxxxxx Subordination Agreement") in substantially the form
annexed to this Agreement as Exhibit N.
4.1.7 TRADEMARK COLLATERAL AGREEMENT. The Company and each
Subsidiary shall have executed and delivered to the Agent a Trademark Collateral
Agreement (as amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof, the "Trademark Collateral Agreement") in
substantially the form annexed to this Agreement as Exhibit O, together with
such notices for filing in the United States Patent Trademark Office and such
Uniform Commercial Code financing statements as are necessary to perfect the
security interests created by such Trademark Collateral Agreement.
4.1.8 REPAYMENT OF EXISTING INDEBTEDNESS. All Indebtedness
under that certain Third Amended and Restated Loan Agreement, dated as of July
17, 1997, among the Company, First Union (as successor to CoreStates Bank, N.A.)
as agent and the lenders referred to therein, (the "Existing Facilities") shall
have been repaid in full concurrently with the initial advances under this
Agreement.
4.1.9 TAX SHARING AGREEMENT. The Company shall have delivered
a fully executed tax sharing agreement (the "Tax Sharing Agreement") among the
Company, its
- 28 -
38
Subsidiaries, SPC and its other Subsidiaries, respecting the allocation of tax
liabilities among SPC and its Subsidiaries in form and substance satisfactory to
the Agent.
4.1.10 MANAGEMENT AGREEMENT. The Company shall have delivered
a fully executed Management Agreement (the "Management Agreement") between the
Company and SPC, in form and substance satisfactory to the Agent.
4.1.11 ESOP SHARING AGREEMENT. The Company shall have
delivered a fully executed ESOP sharing agreement (the "ESOP Sharing Agreement")
among the Company, its Subsidiaries, SPC and its other Subsidiaries, respecting
the allocation of certain liabilities in respect of the ESOP as between SPC, the
Company and Pfaltzgraff in form and substance satisfactory to the Agent.
4.1.12 XXXXXXX AGREEMENT. The Company shall have delivered to
the Agent a fully executed copy of the Xxxxxxx Agreement.
4.1.13 SENIOR SUBORDINATED INDENTURE. The Company shall have
delivered to the Agent a copy of the Senior Subordinated Indenture (if it shall
then be executed) and the Senior Subordinated Notes issued thereunder (if then
issued).
4.1.14 CREATION OF ESOP. SPC shall have set up an employee
stock ownership plan ("ESOP") that complies with section 401 of the Code and
with the applicable provisions of section 409 of the Code. Further, SPC shall
have delivered to the Agent copies of the plan and trust documents establishing
the ESOP, each of which shall be in form and substance satisfactory to the
Agent.
4.1.15 PAYMENT OF FEES AND COSTS. The Company shall have paid
all of the fees required to be paid to the Agent and other Lenders on the
Closing Date and all of the fees and disbursements of counsel for the Agent in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the other documents contemplated herein.
4.1.16 NO DEFAULT. Before and after giving effect to the
Indebtedness to be incurred hereunder, there shall exist no Event of Default or
Potential Event of Default under this Agreement.
4.1.17 CORRECTNESS OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement or otherwise made in
writing in connection with this Agreement, whether made by SPC, the Company, any
Subsidiary of the Company or any other Person on behalf of SPC, the Company or
any of the Company's Subsidiaries, shall be true and correct with the same
effect as though such representations and warranties were made to Lenders or
Agent on behalf of Lenders on and as of the Closing Date.
- 29 -
39
4.1.18 FINANCIAL STATEMENTS; PROJECTIONS.
(a) The Lenders shall have received audited financial
statements of SPC and its Subsidiaries for the fiscal year ended December 31,
1998 in form and substance satisfactory to the Agent.
(b) The Lenders shall have received a final set of
operating projections for the Company and its Subsidiaries, dated no more than
120 days prior to the Closing Date, for the period ending on December 31, 2008,
which shall be in reasonable detail, shall be based on the closing capital
structure of the Company and its Subsidiaries, shall reflect the consummation of
the transactions contemplated by this Agreement including the creation and
funding of the ESOP and shall be in form and substance satisfactory to the
Agent.
4.1.19 LEGAL PROCEEDINGS. All corporate, partnership and other
legal proceedings and all instruments in connection with the transactions
contemplated by this Agreement shall be satisfactory in form and substance to
the Agent and its counsel, and the Agent and its counsel shall have received all
information and copies of all documents and records of all corporate and
partnership proceedings, which the Agent or its counsel has requested, such
documents where appropriate to be certified by proper corporate, partnership,
governmental or other authorities.
4.1.20 CONSENTS AND APPROVALS. All material corporate,
governmental and judicial consents and approvals and waivers (including, without
limitation, any requisite FCC or PUC approvals) and third party consents
(including Xxxxxxx) and approvals (except for those consents, approvals and
waivers not required by the Agent as a condition to closing) necessary in
connection with this Agreement and the Loans, or other related transactions
(including, without limitation, those required in connection with the creation
of the ESOP), shall have been obtained and become final or Final Orders, as
applicable, and shall remain in full force and effect, without the imposition of
any conditions that are not acceptable to the Lenders provided that the
transfers of the radio licenses WGRL, WGLD, WFMS and WRRM to the special purpose
Subsidiaries, Indy Lico, Inc., WFMS Lico, Inc., and WRRM Lico, Inc. need not be
Final Orders so long as there is no reason to believe that with the passage of
time they will not become Final Orders. It is understood that certain third
party consents in connection with the pledge of certain assets such as
franchises and minority partnership interests are being delivered on a
commercially reasonable basis.
4.1.21 MATERIAL ADVERSE CHANGE OR EFFECT; COMPLIANCE WITH LAW.
(a) No Material Adverse Change shall have occurred
since December 31, 1998.
(b) No event shall have occurred or be threatened and
no facts or circumstances shall exist, including, without limitation, any
action, suit, investigation, litigation
- 30 -
40
or proceeding pending or threatened in a court or before any arbitrator or
governmental instrumentality, that could have a Material Adverse Effect.
(c) The Company and its Subsidiaries shall be in
substantial compliance with all applicable laws, including environmental laws.
4.1.22 OPINIONS OF COUNSEL. The Agent shall have received the
following favorable opinions of counsel as to the transactions contemplated
hereby addressed to the Agent, the Issuing Bank and the Lenders and dated as of
the Closing Date, in form and content satisfactory to Agent, the Issuing Bank
and the Lenders:
(i) Xxxxx X. Xxxxxx, counsel to SPC, the
Company, and the Company's Subsidiaries and certain
of the Other Shareholders;
(ii) Barley Xxxxxx Xxxxx and Xxxxx, counsel
to SPC, the Company and the Company's Subsidiaries;
(iii) Xxxx and Marks, FCC counsel to Company
and its Subsidiaries with respect to broadcast
matters;
(iv) Wiley, Rein & Fielding, FCC counsel to
the Company and its Subsidiaries with respect to
cable television matters; and
(v) Xxxxx Xxxxxxxx & Xxxxxx, Chartered,
special tax counsel to the Company, as to the due
formation and valid existence of the ESOP, the
favorable tax treatment of the ESOP under Section 401
and, as applicable, Section 409 of the Code and such
other matters as the Agent shall reasonably request.
4.1.23 OFFICERS' COMPLIANCE CERTIFICATE. There shall have been
delivered to the Agent an Officers' Compliance Certificate dated as of the
Closing Date.
4.1.24 GOOD STANDING. The Agent shall have received (a) good
standing certificates for each of SPC, the Company and the Company's
Subsidiaries, evidencing its good standing under the laws of the state of its
incorporation or formation and (b) good standing certificates for each of the
Company and the Company's Subsidiaries, evidencing its good standing under the
laws of the states in which it is required to qualify to do business.
4.1.25 LIEN SEARCHES. The Company shall have delivered to the
Agent Uniform Commercial Code, tax and judgment lien searches of a recent date,
in such offices as are acceptable to the Agent, with respect to Company and each
of Company's Subsidiaries, showing no Liens except Permitted Liens.
- 31 -
41
4.1.26 EVIDENCE OF INSURANCE. The Agent shall have received
evidence of the insurance required by Section 7.15 (Insurance) below.
4.1.27 OTHER REQUIREMENTS. The Agent shall have received such
additional information and material as the Agent or any Lender may reasonably
request.
4.2 REQUIREMENTS FOR EACH LOAN/LETTER OF CREDIT.
The Lenders shall not be required to make any Loans to the
Company and the Issuing Bank shall not be required to issue any Letters of
Credit unless the following conditions are fulfilled to the satisfaction of
Agent:
4.2.1 NO DEFAULT. There shall not, either prior to or after
giving effect to each such funding or Letter of Credit, exist an Event of
Default or Potential Event of Default;
4.2.2 REQUEST FOR ADVANCE/LETTER OF CREDIT. Agent shall have
timely received a borrowing notice pursuant to Section 1.6 (Borrowing Notice) or
request for a Letter of Credit pursuant to Subsection 3.1.1 (Commitment to Issue
Letters of Credit). Each request for a Loan that individually or together with
other related Loans exceeds $25,000,000 for the purpose of effecting an
Acquisition or purchasing a minority interest in a Subsidiary shall be
accompanied by the Officer's Certificate referred to in Subsection 1.8.3
(Officers' Certificate);
4.2.3 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of SPC, the Company, its Subsidiaries, Xxxxxxx and the Other
Shareholders made in the Loan Documents shall be true and correct in all
material respects as of the date of each such Loan or Letter of Credit (both
immediately prior to and after giving effect to said Loan or Letter of Credit)
as if made on and as of such date, except to the extent that changes in the
facts and conditions on which such representations and warranties are based do
not result from an act or omission that constitutes a breach of any covenant set
forth in this Agreement or in any other Loan Document and have been disclosed to
Lenders in writing;
4.2.4 MATERIAL ADVERSE CHANGE. No Material Adverse Change
shall have occurred since the date of this Agreement;
4.2.5 MATERIAL ADVERSE EFFECT. No event shall have occurred
and no fact or condition shall exist, including, without limitation, any action,
suit, investigation, litigation or proceeding pending or threatened in a court
or before any arbitrator or governmental instrumentality, that could have a
Material Adverse Effect;
4.2.6 SENIOR SUBORDINATED NOTES. The obligation of the Company
hereunder to repay each such Loan or Letter of Credit shall be senior to any
obligation of the Company to repay the Senior Subordinated Notes (if the same
are outstanding); and
- 32 -
42
4.2.7 MISCELLANEOUS. The Agent shall have received such
additional information and material as the Agent may reasonably request,
including such additional agreements or certifications executed by SPC, the
Company or any Subsidiary of the Company as the Agent may reasonably request.
4.2.8 METHOD OF CERTIFYING CERTAIN CONDITIONS. The request
for, and acceptance of, each Loan and each Letter of Credit by the Company shall
be deemed a representation and warranty by the Company that the conditions
specified in Subsections 4.2.1 (No Default), 4.2.3 (Representations and
Warranties), 4.2.4 (Material Adverse Change), 4.2.5 (Material Adverse Effect)
and 4.2.6 (Senior Subordinated Notes) have been satisfied.
ARTICLE 5
REPORTING REQUIREMENTS AND NOTICES
The Company covenants that from the date of this Agreement so long as
any of the Senior Secured Obligations remain unpaid, any Letters of Credit
remain outstanding, the Lenders have an unexpired Commitment to lend hereunder
or the Issuing Bank has an unexpired commitment to issue Letters of Credit
hereunder, it shall comply with each of the reporting and notice requirements
set forth in this Article 5.
5.1 FINANCIAL DATA AND REPORTING REQUIREMENTS; NOTICE OF CERTAIN
EVENTS.
5.1.1 DELIVERY OF QUARTERLY FINANCIAL STATEMENTS. As soon as
practicable and in any event within sixty (60) days after the close of each of
the first three quarters of each fiscal year of Company, the Company shall
deliver to the Lenders,
(a) an unaudited Consolidated balance sheet,
statement of income and changes in retained earnings, and statement of cash
flows of Company and its Subsidiaries as at the end of and for (i) the period
commencing at the end of the previous fiscal year and ending with such quarter
and (ii) the period commencing at the end of the previous fiscal quarter and
ending with such currently reported quarter, setting forth in comparative form
the corresponding figures for the appropriate periods of the preceding fiscal
year, and
(b) a supplemental consolidating balance sheet
showing separately a balance sheet, and a supplemental consolidating statement
of operations showing separately a statement of operations, for each of
Susquehanna Cable and its Subsidiaries and Susquehanna Radio and its
Subsidiaries and each of the other direct Subsidiaries of the Company as at the
end of and for each such fiscal quarter, all in reasonable detail and certified
by the Treasurer or a Vice President of Company to be true and complete, subject
to normal recurring year-end audit adjustments, it being understood that
footnotes may be omitted.
- 33 -
43
5.1.2 DELIVERY OF ANNUAL FINANCIAL STATEMENTS; ACCOUNTANTS'
CERTIFICATION. As soon as practicable and in any event within one hundred twenty
(120) days after the close of each fiscal year of the Company, the Company shall
deliver to the Lenders,
(a) an audited Consolidated balance sheet, statement
of income and changes in retained earnings, and statement of cash flows of
Company and its Subsidiaries, as at the end of and for the fiscal year just
closed in reasonable detail and certified (without any qualification,
modification or exception) by nationally-recognized independent certified public
accountants selected by Company and satisfactory to Agent,
(b) a supplemental consolidating balance sheet
showing separately a balance sheet, and a supplemental consolidating statement
of operations showing separately a statement of operations, for each of
Susquehanna Cable and its Subsidiaries and Susquehanna Radio and its
Subsidiaries and each of the other direct Subsidiaries of the Company as at the
end of and for each fiscal year and, in the case of the statement of operations,
for the fourth quarter of the fiscal year just closed, setting forth the
corresponding figures for the previous fiscal year in comparative form, all in
reasonable detail;
(c) concurrently with such financial statements
described in clause (a) above, (x) a written statement signed by such
accountants to the effect that in making the examination necessary for their
certification of the financial statements referred to in clause (a) above, they
have not obtained any knowledge of the existence of any Event of Default or any
Potential Event of Default, or, if such accountants shall have obtained from
such examination any such knowledge, they shall disclose in such written
statement the Event of Default or Potential Event of Default; and
(d) concurrently with the consolidating financial
statements referred to in clause (b) above, a certificate of a Vice President or
the Treasurer that the consolidating statements described therein are true and
complete.
5.1.3 DELIVERY OF OFFICERS' CERTIFICATES AS TO NO DEFAULT. As
soon as practicable after the close of each quarter of each fiscal year of the
Company and in any event no later than the date on which financial statements
are required to be delivered for each such quarter or year, as provided in
Subsections 5.1.1 or 5.1.2, the Company shall deliver to the Lenders an
Officers' Certificate stating that there existed during such quarter and, in the
case of the certificate delivered after the fourth quarter, such fiscal year, no
Event of Default and no Potential Event of Default or if any such Event of
Default or Potential Event of Default existed, specifying the nature thereof,
the period of existence thereof and what action the Company proposes to take, or
has taken, with respect thereto.
5.1.4 DELIVERY OF OFFICERS' COMPLIANCE CERTIFICATE; SUBSCRIBER
LEVELS, ETC. Together with each quarterly report or annual report of the Company
required under Subsections 5.1.1 and 5.1.2 above the Company shall deliver to
the Lenders:
- 34 -
44
(a) an Officers' Compliance Certificate;
(b) a report as to certain operating data in
substantially the form of Exhibit P;
(c) for each broadcast station owned by Company or
any of its Subsidiaries, a report indicating market revenues, broadcast station
revenues, xxxxxxxx share, broadcast station cash flow, broadcast station cash
flow margin and Arbitron rating (12 + and the target demographic group for such
broadcast station); and
(d) a schedule of depreciation for (a) each radio
station, (b) each cable system and (c) BlazeNet.
5.1.5 AUDITORS' REPORTS. Promptly upon receipt, the Company
shall deliver to the Lenders copies of all financial reports or written
recommendations, if any, submitted to the Company or any of its Subsidiaries by
its auditors in connection with each annual or interim audit or examination of
its books by such auditors.
5.1.6 SPC FINANCIAL STATEMENT. As soon as practicable and in
any event within one hundred twenty (120) days after the close of each fiscal
year of SPC, the Company shall deliver to the Agent, the Issuing Bank and each
Lender (a) audited consolidated balance sheets, statements of operations and
shareholders' equity and statements of cash flows of SPC and its Subsidiaries,
as at the end of and for the fiscal year just closed, setting forth the
corresponding figures for the previous fiscal year in comparative form all in
reasonable detail, certified (without any qualification, modification or
exception) by nationally-recognized independent certified public accountants
selected by SPC, and, (b) consolidating balance sheets, statements of operations
and shareholders' equity of SPC and its Subsidiaries, as of the end of and for
the fiscal year just closed, all in reasonable detail and certified by the Chief
Financial Officer or Vice President, Treasury Operations, of SPC to fairly
present the information contained therein in accordance with GAAP.
5.1.7 OFFICERS' CERTIFICATE FOR RATE AND FEE CALCULATIONS. The
Company shall deliver the Officers' Certificates as required by Subsection 1.8.3
(Officers' Certificate) above at the times specified therein.
5.1.8 ESOP INFORMATION. Annually at the time of delivery of
the financial statements pursuant to Subsection 5.1.2 above, the Company shall
provide the following information:
(a) The consolidated amount of the ESOP Compensation
Expense relative to the ESOP;
- 35 -
45
(b) The total amount of ESOP Compensation Expense
(broken down by cash and non-cash components, if
applicable) allocated to the Company;
(c) The total amount of ESOP Compensation Expense
allocated to Pfaltzgraff Corp.;
(d) The total amount of ESOP Compensation Expense
allocated to SPC;
(e) The total amount of direct operating expenses of
the ESOP;
(f) The amount of payments made by SPC to the Company
in respect of debt service prepayments on the loan
made on the Closing Date;
(g) The total amount of ESOP Repurchase Payments of
the Company.
The Company shall, at the same time, certify that the allocations and payments
made with respect to the ESOP were made in compliance with the ESOP Sharing
Agreement.
5.1.9 REPORTS TO SENIOR SUBORDINATED NOTEHOLDERS, SEC FILINGS,
ETC. Promptly upon receipt or transmission thereof, as applicable, the Company
shall deliver to the Agent and the Lenders:
(a) at any time when SPC, the Company or any of the
Company's Subsidiaries is subject to the reporting requirements of the
Securities Exchange Act of 1934, all letters of comment or material
correspondence sent to SPC, the Company or any of the Company's Subsidiaries by
any securities exchange or the Securities and Exchange Commission in relation to
the affairs of SPC, the Company or any of the Company's Subsidiaries,
(b) all regular and periodic reports and all
registration statements and prospectuses, if any, filed by SPC, the Company or
any of the Company's Subsidiaries with any securities exchange or with the
Securities and Exchange Commission or any governmental authority succeeding to
any of its functions,
(c) financial statements, reports, notices and proxy
statements sent or made available generally by SPC, the Company or any of the
Company's Subsidiaries to the Senior Subordinated Noteholders or other lenders
to such Persons, (if any) and their other respective unit holders, bondholders
or security holders (or any trustee or other representative of any of the
foregoing) and any non-routine notices or other non-routine correspondence from
such Senior Subordinated Noteholders, unit holders, bondholders or security
holders (or trustee or other representative of such Persons), and
- 36 -
46
(d) all press releases and other statements made
available by SPC, the Company or any of the Company's Subsidiaries to the public
concerning material developments in their respective businesses.
5.2 NOTICE OF DEFAULTS, DISPUTES AND OTHER MATTERS.
The Company shall give written notice to Agent, the Issuing
Bank and the Lenders of the following matters promptly upon (and in any event
within three (3) Business Days of) any officer of the Company obtaining
knowledge thereof:
5.2.1 CERTAIN ORDERS BY PUC. Any citation, order to show
cause, or other legal process, order, notice, protest or reconsideration
affecting the Company or any of its Subsidiaries or directing the Company or any
of its Subsidiaries to become a party to or to appear at any proceeding or
hearing by or before any governmental instrumentality (including without
limitation the FCC, any PUC or other instrumentality which shall have granted to
any such Person a Franchise) which, if adversely determined, could, either
individually or in the aggregate, have a Material Adverse Effect and include
with such notice a copy of any such citation, order to show cause or other legal
process, notice order or protest;
5.2.2 LICENSE OR FRANCHISE REVOCATION. Any (a) actual or
threatened denial, refusal or failure to renew or revocation or material adverse
modification by the FCC of any FCC License or by any PUC or any other
governmental instrumentality of any other Franchise, (except the routine,
scheduled expiration of FCC Licenses and any PUC Franchises for which
applications for renewal are timely and properly filed with the appropriate
governmental agency unless, at any time with respect thereto, a competing
application or petition to deny, or other challenge is filed against any such
renewal application), or (b) dispute or other action with respect to any
Franchise which if resolved adversely could have a Material Adverse Effect, or
(c) notice from the FCC or any PUC of apparent liability for forfeiture or of
the imposition of any fines or penalties or forfeitures in the amount or amounts
of $50,000 or more in any twelve (12) month period, or (d) written notices or
written requests by other parties with respect to any of the foregoing or with
respect to any proceeding or hearing which might reasonably be expected to
result in any of the foregoing which, either individually or in the aggregate,
could have a Material Adverse Effect;
5.2.3 CERTAIN DISPUTES. Any dispute concerning, or any
threatened non-renewal or modification of, any agreement to which the Company or
any of its Subsidiaries is a party, including, without limitation, any lease for
or easement over real property, any lease for personal property, any pole
attachment agreement or any programming agreement, if such dispute or threatened
non-renewal or modification, either individually or in the aggregate, could have
a Material Adverse Effect;
5.2.4 CERTAIN LITIGATION. Any actions, proceedings or claims
commenced or asserted against SPC, Company or any of the Company's Subsidiaries
in which the amount
- 37 -
47
involved is $100,000 or more and which is not fully covered by insurance, or
which, if not solely a claim for monetary damages, could reasonably be expected
to, if adversely determined, have a Material Adverse Effect;
5.2.5 GOVERNMENTAL REPORTS. All non-routine material reports,
requests or correspondence filed by SPC (except for information relating only to
The Pfaltzgraff Co.), the Company or any of the Company's Subsidiaries with the
FCC or any PUC, court or other governmental agency relative to the operations of
Company or any of its Subsidiaries and all material, non-routine correspondence
or material, non-routine official notices received by SPC (except for
information relating only to The Pfaltzgraff Co.), the Company or any of the
Company's Subsidiaries from any governmental agency which regulates all or any
part of the operations of any such entity;
5.2.6 XXXXXXX AGREEMENT. Copies of any non-routine notices
under the Xxxxxxx Agreement including any notices relating to buy/sell
provisions or put provisions and any notices of amendment required by Subsection
7.26.1 (Changes in Certain Agreements) and, if the Xxxxxxx Note is issued,
notice of any default or payment in connection therewith;
5.2.7 EVENTS OF DEFAULT. The occurrence of any Event of
Default or Potential Event of Default;
5.2.8 CONTRACT DEFAULT. The occurrence of any event which
constitutes, or with notice or lapse of time or both, would constitute, a
default or an event of default under any contractual obligations of the Company
or any of its Subsidiaries which, if adversely determined, could, either
individually or in the aggregate, have a Material Adverse Effect;
5.2.9 CROSS DEFAULT. Any notice given to the Company or any of
its Subsidiaries by any Person or any other action taken by any Person with
respect to a claimed default or event or condition of the type referred to in
Subsections 8.1.3 (Cross Default to Indebtedness) or 8.1.4 (Other
Cross-Defaults) below;
5.2.10 MATERIAL ADVERSE CHANGE. Any Material Adverse Change or
the existence of any facts or circumstances or the occurrence or failure to
occur of any event which could have a Material Adverse Effect;
5.2.11 REPRESENTATIONS AND WARRANTIES. Any changes in facts or
circumstances on which the representations and warranties set forth in this
Agreement are made which makes such representations and warranties false or
misleading in any material respect;
5.2.12 EQUITY ISSUANCE. Any issuance by the Company or a
Subsidiary of capital stock or other equity, which issuance may be made only to
the extent not prohibited by this Agreement; and
- 38 -
48
5.2.13 PURCHASE OF MINORITY INTERESTS. Any purchase of any
minority interests in any Subsidiaries, together with an Officers' Compliance
Certificate prepared on a Pro Forma Basis, showing compliance with the financial
covenants set forth in this Agreement after giving effect to such purchase.
5.3 THE ESOP AND ERISA MATTERS.
5.3.1 THE ESOP. Promptly upon receipt thereof, the Company
shall deliver to each Lender a copy of any ruling or non-routine correspondence
from the Internal Revenue Service respecting the tax status of the ESOP and
promptly upon the Company having knowledge thereof, the Company shall deliver
notice of any event or condition which could cause the ESOP to lose its
tax-qualified status. In addition, the Company shall provide on an annual basis
the information required by Subsection 5.1.8 (ESOP Information) above.
5.3.2 ANNUAL REPORTS. Upon request of any Lender, the Company
shall deliver to such Lender each annual report filed with respect to the ESOP
or any Plan with the Internal Revenue Service, Secretary of Labor or the PBGC;
and all reports delivered to any such Person from its actuary with respect to
any Plan; and the most recent actuarial report for each Employee Pension Plan.
5.3.3 OTHER ERISA INFORMATION. The Company shall deliver to
each Lender all material non-routine correspondence with the PBGC, Secretary of
Labor or any representative of the Internal Revenue Service with respect to any
Plan or the ESOP.
5.3.4 REPORTABLE EVENTS, ETC.
(a) The Company shall deliver to each Lender notice
of the occurrence of any Reportable Event as such term is defined in Section
4043 of ERISA, or "prohibited transaction" as such term is defined in Section
4975 of the Code, in connection with any Plan or any trust created thereunder.
(b) Company shall furnish to Agent (i) within 30 days
after any officer of the Company obtains knowledge that the Company, any of its
Subsidiaries, or any ERISA Affiliate has incurred or anticipates incurring
Withdrawal Liability, or that any Multiemployer Plan is in Reorganization or
that any Reportable Event has occurred with respect to any Employee Pension Plan
or that the PBGC has instituted or will institute proceedings under Title IV of
ERISA to terminate any Employee Pension Plan or to appoint a trustee to
administer any Employee Pension Plan, a statement setting forth the details as
to such Withdrawal Liability, Reorganization, Reportable Event or termination or
appointment proceedings and the action which it, any of its Subsidiaries or
ERISA Affiliates (or the Multiemployer Plan sponsor or Employee Pension Plan
sponsor if other than the Company) proposes to take with respect thereto,
together with a copy of any notice of Withdrawal Liability or Reorganization
given to the Company, any of its Subsidiaries or ERISA Affiliates and a copy of
the notice of such
- 39 -
49
Reportable Event given to PBGC if a copy of such notice is available to the
Company, any of its Subsidiaries or any of its ERISA Affiliates, and (ii)
promptly after receipt thereof, a copy of any notice the Company, any of its
Subsidiaries or any of its ERISA Affiliates or the sponsor of any Plan receives
from the PBGC, or the Internal Revenue Service or the Department of Labor which
sets forth or proposes any action or determination with respect to such Plan.
(c) The Company will promptly notify the Agent of any
excise taxes or penalties which have been assessed or which the Company, any of
its Subsidiaries or any of its ERISA Affiliates has reason to believe may be
assessed against the Company, any of its Subsidiaries or any of its ERISA
Affiliates by the Internal Revenue Service or the Department of Labor with
respect to any Plan or Multiemployer Plan.
(d) Within the time required for notice to the PBGC
under Section 302(f)(4)(A) of ERISA, the Company will notify the Agent of any
lien arising under Section 302(f) of ERISA in favor of any Plan.
Each notice pursuant to this Subsection 5.3.4 shall be accompanied by a
statement of the President or a Vice President or the Treasurer of the Company
setting forth details of the matter referred to therein and stating what action
the Company or the affected Subsidiary has taken, is taking and proposes to take
with respect thereto. For the purpose of this Subsection 5.3.4, the Company
shall be deemed to have knowledge of all facts attributable to the administrator
of such Plan.
5.4 MISCELLANEOUS. With reasonable promptness, the Company shall
deliver such other information respecting the business, operations and financial
condition of (i) SPC (other than information relating only to The Pfaltzgraff
Co. and/or its Subsidiaries) or any of its Subsidiaries or any entities in which
SPC or any of its Subsidiaries have an ownership interest, or (ii) Company or
any of Company's Subsidiaries, as the Agent or any Lender may from time to time
reasonably request.
5.5 DISCLOSURE.
The Agent, the Issuing Bank and the Lenders are hereby
authorized to show or deliver a copy of any financial statement or any other
information relating to the business, operations or financial condition of SPC,
the Company and the Company's Subsidiaries, which may be furnished to Agent, the
Issuing Bank or any Lender or come to their attention pursuant to this Agreement
(the "Financial Information"), to any regulatory body or agency having
jurisdiction over the Agent, the Issuing Bank or any Lender, to the Agent's, the
Issuing Bank's or any Lender's counsel, advisers and auditors, and to any Person
which shall, or shall have any right or obligation to, succeed to all or any
part of the Agent's, the Issuing Bank's or any Lender's interest (the "Lender's
Interest"), in the Notes or any Note, and/or this Agreement or to any Person who
shall express a desire to acquire all or part of such Lender's Interest.
Effective during the existence of an Event of Default, Agent, the Issuing Bank
and the Lenders and their
- 40 -
50
respective counsel, advisors and auditors are hereby further authorized to show
or deliver a copy of the Financial Information to other Persons in connection
with protecting, preserving, exercising or enforcing any rights of the Agent,
the Issuing Bank or the Lenders in, under or related to the Loan Documents or
any collateral.
ARTICLE 6
FINANCIAL COVENANTS
The Company covenants that from the date of this Agreement so long as
any of the Senior Secured Obligations remain unpaid, any Letters of Credit
remain outstanding, the Lenders have an unexpired Commitment to lend hereunder
or the Issuing Bank has an unexpired commitment to issue Letters of Credit
hereunder, it shall comply with each of the financial covenants set forth in
this Article 6.
6.1 INTEREST COVERAGE RATIO. The Company shall maintain at all times an
Interest Coverage Ratio of at least 1.75:1 through December 31, 1999 and 2.00:1
thereafter. This ratio shall be tested as of the end of each fiscal quarter of
the Company.
6.2 THE DEBT SERVICE COVERAGE RATIO. The Company shall maintain at all
times a Debt Service Coverage Ratio of at least 1.20:1. This ratio shall be
tested as of the end of each fiscal quarter of Company.
6.3 CONSOLIDATED TOTAL LEVERAGE RATIO. The Company shall not, and shall
not permit any of its Subsidiaries to, incur or permit Consolidated Indebtedness
to exist that would at any time cause the Consolidated Total Leverage Ratio,
during each period specified below, to equal or exceed the applicable ratio for
such period specified below:
Period Ratio
------ -----
Closing Date through 6/30/01 7.00:1
7/1/01 through 6/30/02 6.50:1
7/1/02 and thereafter 6.00:1
This ratio shall be tested as at the (i) end of each fiscal quarter of Company
during each period specified above, and (ii) the date of each incurrence of
Consolidated Indebtedness (after giving effect to such proposed incurrence).
6.4 CONSOLIDATED SENIOR LEVERAGE RATIO. The Company shall not, and
shall not permit any of its Subsidiaries to, incur or permit to exist any Senior
Debt that would at any time cause the Consolidated Senior Leverage Ratio, during
each period specified below, to exceed the applicable ratio for such period
specified below:
- 41 -
51
Period Ratio
------ -----
Closing Date through 6/30/01 5.00:1
7/1/01 through 6/30/02 4.50:1
7/1/02 and thereafter 4.00:1
This ratio shall be tested as at (i) the end of each fiscal quarter of the
Company during each period specified above and (ii) the date of the incurrence
of Senior Debt (after giving effect to such proposed incurrence).
6.5 FIXED CHARGE COVERAGE RATIO. The Company shall maintain at all
times a Fixed Charge Coverage Ratio of at least 1.00:1 through December 31, 2000
and 1.05:1 thereafter. This ratio shall be tested as of the end of each fiscal
quarter of Company.
6.6 ADDITIONAL PROVISIONS RESPECTING CALCULATION OF FINANCIAL
COVENANTS. Except as otherwise provided in this Agreement, the following
provisions shall apply.
6.6.1 All the calculations of financial covenants shall be
based upon the figures set forth in the Consolidated financial statements of the
Company most recently delivered pursuant to this Agreement even where this
Agreement may refer to a period ended on, or most recently prior to a specified
date of determination.
6.6.2 For all purposes other than the calculation of the Fixed
Charge Coverage Ratio, calculations made pursuant to this Article 6 shall give
effect, on a Pro Forma Basis, to all Acquisitions and dispositions made during
the quarter or year to which the required compliance relates, as if such
Acquisition or disposition had been consummated on the first day of the
applicable period.
6.6.3 For purposes of calculation of the financial covenants
(other than the calculation of the Fixed Charge Coverage Ratio) in connection
with an Acquisition, disposition, purchase of minority interest or other event
requiring demonstration of pro forma compliance under this Agreement (a
"Designated Event"), the calculations shall
(i) be based on the results of operations and
financial condition of the Company, as at and for the fiscal quarter or year (as
applicable) ended on, or most recently prior to, the date of the Designated
Event for which the Company has provided financial statements (the "Designated
Period"), adjusted to reflect, on a Pro Forma Basis, the occurrence of such
Designated Event (including the incurrence of any Indebtedness incurred in
connection therewith) as if such Designated Event had occurred on the first day
of such Designated Period; and
- 42 -
52
(ii) shall be judged against the required financial
covenant standards applicable as at the end of such Designated Period.
By way of example, if the Company consummates an Acquisition on 7/10/02, for
purposes of determining compliance with the Consolidated Total Leverage Ratio,
on a Pro Forma Basis, at the time of the Acquisition (1) the amount of Total
Debt would be the amount of Total Debt on 7/10/02 after giving effect to
Indebtedness incurred to effect the Acquisition, (2) if the financial statements
most recently delivered under this Agreement were the ones for the period ended
3/31/02, the amount of EBITDA would be the amount of EBITDA reflected on those
financial statements, adjusted as if the Acquisition had been consummated on
4/1/01, and (3) the resulting ratio would be tested against the required ratio
at 3/31/02 which is 6.5:1.
6.6.4 For purposes of calculating the financial covenants for
the period ending March 31, 1999, the amount of Indebtedness shall be the amount
of Indebtedness outstanding on the Closing Date after giving effect to the
Indebtedness incurred on that date.
ARTICLE 7
BUSINESS COVENANTS
The Company covenants that from the date of this Agreement so long as
any of the Senior Secured Obligations remain unpaid, any Letters of Credit
remain outstanding, the Lenders have an unexpired Commitment to lend hereunder
or the Issuing Bank has an unexpired commitment to issue Letters of Credit
hereunder, it shall comply with each of the covenants set forth in this Article
7.
7.1 INDEBTEDNESS.
7.1.1 IN GENERAL. The Company will not, and will not permit
any Subsidiary to, directly or indirectly, create, incur, assume, guarantee,
permit to exist or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness other than each of the following:
(a) subject to the terms of Section 7.32 (Interest
Rate Protection Agreements), obligations under Interest Rate Protection
Agreements;
(b) obligations under the Loan Documents;
(c) obligations under the Senior Subordinated
Indenture and Senior Subordinated Notes in respect of an outstanding principal
amount not in excess of Two Hundred Million Dollars ($200,000,000), provided
that the Senior Subordinated Indenture and Senior Subordinated Notes shall (i)
be on terms set forth in the Indenture issued pursuant to the Offering
Memorandum marked "subject to completion, dated April 23, 1999" (which Offering
Memorandum was distributed to the Lenders prior to the Closing Date) or on such
other terms as
- 43 -
53
is acceptable to the Requisite Lenders acceptable to the Agent, (ii) have no
principal amortization or a final maturity prior to the date which is 91 days
after the Maturity Date, (iii) be unsecured and (iv) have covenants no more
restrictive than those set forth herein;
(d) obligations in a principal amount not to exceed
Ten Million Dollars ($10,000,000);
(e) obligations owing to the Company or to a
Subsidiary of Company; and
(f) a promissory note (the "Xxxxxxx Note") issued to
Xxxxxxx in connection with the exercise by Xxxxxxx of the put (the "Xxxxxxx
Put") under Section 5 of the Fifth Amendment to the Xxxxxxx Agreement, subject
to the following terms and conditions:
(i) at the time that the Put is
exercised, there is no Event of
Default or Potential Event of
Default and no default under the
Senior Subordinated Indenture;
(ii) at the time that the Put is
consummated, there is no Event of
Default or Potential Event of
Default and the Company is able to
demonstrate projected pro forma
compliance with the financial
covenants for the period ending one
year plus one day after the
consummation of the Xxxxxxx Put and
the Company shall have delivered to
the Agent and the Lenders at least
ten (10) Business Days prior to the
date of the proposed consummation,
a notice of consummation, together
with
(1) an Officers Compliance
Certificate, showing compliance
with the financial covenants
set forth in Article 6 above,
on a Pro Forma Basis, after
giving effect to the
consummation of the Xxxxxxx Put
(including any additional
Indebtedness incurred in
connection therewith);
(2) revised projections through the
Maturity Date, which shall be
made in good faith and based on
reasonable assumptions, which
shall show pro forma compliance
with the financial covenants
for the period
- 44 -
54
ending one year plus one day
after the consummation of the
Xxxxxxx Put, after giving
effect to the transactions
contemplated by the Xxxxxxx Put
(including any additional
Indebtedness and payments made
in respect thereof); and
(3) a certificate demonstrating
compliance with the debt
incurrence test set forth in
the Senior Subordinated
Indenture;
(iii) all obligations under the Xxxxxxx
Note shall be fully subordinated to
the Senior Secured Obligations
pursuant to the Xxxxxxx
Subordination Agreement;
(iv) the Xxxxxxx Note will be payable in
three equal annual installments and
will bear interest at 8% and may be
prepaid, provided, however, that
cash payments may only be made
under the Xxxxxxx Note if the
following conditions are satisfied:
(1) there is no Event of Default or
Potential Event of Default both
before and after the proposed
payment is made;
(2) the Company can demonstrate
compliance, on a Pro Forma
Basis, with the Fixed Charge
Coverage Ratio test set forth
in Section 6.5 of this
Agreement (it being understood
that any cash payments under
the Xxxxxxx Note would be
deemed to be Restricted
Payments);
(v) Except as permitted by the
preceding clause (iv), the Xxxxxxx
Note shall be recourse only to
Xxxxxxx'x second priority lien on
the stock put to the Company
pursuant to the Xxxxxxx Put, which
lien is second to the Lien in favor
of the Agent and fully
subordinated;
- 45 -
55
(vi) The Xxxxxxx Note shall have no
covenants and no remedies provided,
however, that if there is no Event
of Default or Potential Event of
Default under this Agreement (other
than the cross default to the
Xxxxxxx Note) and no Potential
Event of Default or Event of
Default would be caused thereby,
and the Company fails
(1) to make a principal payment on
the Xxxxxxx Note which payment
default is not cured within
nine months, or
(2) to make four consecutive
interest payments on the
Xxxxxxx Note (or adds interest
to principal for four
consecutive quarters)
then Xxxxxxx shall be entitled to
require the Company to sell the
stock or assets (at the Company's
option) of Susquehanna Cable and its
Subsidiaries in accordance with the
terms of Section 5 (h) of the Fifth
Amendment to the Xxxxxxx Agreement.
Xxxxxxx'x right to require the
Company to sell the stock or assets
of Susquehanna Cable and its
Subsidiaries shall, among other
things, be subject to there being no
default in this Agreement and Senior
Subordinated Indenture at the
closing of the sale (other than the
cross default to the Xxxxxxx Note)
both before and after giving effect
to the sale. Any such sale shall be
subject to the provisions of
paragraph (d) of Section 7.7.2. This
right of Xxxxxxx shall not restrict
any right that the Agent and the
Senior Secured Parties shall have
under or in connection with the Loan
Documents.
7.1.2 LIMITATION ON INCURRENCE. In addition to the limitations
on the incurrence or existence of Indebtedness referred to above, no
Indebtedness may be incurred by Company or any of its Subsidiaries unless (a)
immediately before and after giving effect to the incurrence of such
Indebtedness, no Potential Event of Default or Event of Default shall have
occurred and be continuing and (b) it would not cause a default under the Senior
Subordinated Indenture.
7.2 LIENS.
7.2.1 IN GENERAL. The Company will not, and will not permit
any of its Subsidiaries to, directly or indirectly, create, incur, assume or
permit to exist any Lien on or with respect to any property or asset (including,
without limitation, any document or instrument in
- 46 -
56
respect of goods or accounts receivable) of the Company or any Subsidiary of
Company, except each of the following (the Liens referred to in clauses (a)
through (i) are, collectively, the "Permitted Liens"):
(a) Liens created in favor of the Agent for the
benefit of the Lenders pursuant to the Loan Documents;
(b) Liens for taxes, assessments or other
governmental charges the payment of which is not at the time required by Section
7.11 (Payment of Taxes and Claims);
(c) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics and materialmen incurred in the ordinary
course of business for sums not yet due or the payment of which is not at the
time required by Section 7.11 (Payment of Taxes and Claims);
(d) Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(e) Liens arising out of judgments or awards with
respect to which the Company or a Subsidiary of the Company shall be prosecuting
an appeal in good faith and in respect of which a stay of execution shall have
been issued;
(f) leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or encumbrances, in each
case incidental to, and not interfering with, the ordinary conduct of the
business of the Company or any of its Subsidiaries;
(g) Capital Leases incurred in compliance with
paragraph (d) of Section 7.1 (Indebtedness) and purchase money security
interests which are granted to secure purchase money obligations related to
assets acquired in the ordinary course of business and which are incurred in
compliance with said paragraph (d) of Section 7.1, provided that no such
security interest shall extend to or cover any property other than the property
being acquired;
(h) the right of first refusal and buy/sell
provisions contained in Sections 13 and 14 of the Xxxxxxx Agreement, which may
constitute encumbrances on the stock of Susquehanna Cable and its Subsidiaries,
provided that the exercise by Xxxxxxx of such rights may create an Event of
Default and the characterization of such encumbrances as a Permitted Lien shall
not be construed as consent by the Lenders to, or a waiver by Lenders of, any
such Event of Default or any rights they or the Agent may have upon, the
exercise of any one or more of such rights by Xxxxxxx;
- 47 -
57
(i) a second priority security interest in favor of
Xxxxxxx (subordinate to the security interest in favor of the Agent) in the
stock of Susquehanna Cable and certain of its Subsidiaries which may be
purchased by the Company (or a Subsidiary thereof) in connection with the
Xxxxxxx Put, to secure the obligations under the Xxxxxxx Note, if any.
7.2.2 NEGATIVE PLEDGE. Except as otherwise provided in Section
9.24 (Absence of Restrictive Provisions), the Company will not, and will not
permit any of its Subsidiaries to, agree with any Person, to restrict or place
limitations on the right of the Company or any of its Subsidiaries to create,
incur, assume or permit to exist any Lien on or with respect to any property or
asset of the Company or any of its Subsidiaries except such restrictions and
limitations as are set forth in the Senior Subordinated Indenture.
7.3 INVESTMENTS, LOANS, ACQUISITIONS ETC.
7.3.1 LIMITATION. The Company will not, and will not permit
any of its Subsidiaries to, directly or indirectly: (a) make or own any
Investment in any Person (including, without limitation, the contribution or
transfer of ownership or possession of any of its cash, property rights or other
assets to any Subsidiary of the Company); or (b) purchase or otherwise acquire
any assets or property of any nature after the date of this Agreement other than
assets and property used in the ordinary course of its business, except as set
forth in Subsections 7.3.2 (Investments) and 7.3.3 (Acquisitions) below.
7.3.2 INVESTMENTS. Notwithstanding the terms of Subsection
7.3.1 above, the Company and its Subsidiaries may make or own any or all of the
following Investments:
(a) Investments that exist as of the date of this
Agreement which are described on Schedule 7.3 to this
Agreement;
(b) Investments by the Company in any of its
Subsidiaries or by any Subsidiary of Company in the Company or
another Subsidiary of Company;
(c) Investments made in compliance with Subsection
7.3.3 (Acquisitions);
(d) minority Investments determined by the amount of
cash invested not in excess of Ten Million Dollars
($10,000,000) in the aggregate after the Closing Date in
Persons engaged in Permitted Businesses, provided that
immediately before and after the making of each such
Investment no Potential Event of Default or Event of Default
shall have occurred and be continuing;
(e) Investments in short-term obligations issued or
unconditionally guaranteed by the United States or any agency
thereof and backed by the full faith and credit of the United
States;
- 48 -
58
(f) Repurchase obligations of up to one week with any
Lender or any other commercial bank meeting the qualifications
in clause (g) of this Section that are fully collateralized by
securities referred to in clause (e) of this Section;
(g) Investments in certificates of deposit or
Eurodollar time deposits that become payable within one year
of the date of purchase of (i) any of the Lenders or (ii) any
other commercial bank having combined capital, surplus and
undivided profits of $100,000,000 or more, FDIC membership,
and debt obligations, or those of a holding company of which
it is a Subsidiary, rated not less than A by Standard & Poor's
Corporation or equivalent by a nationally recognized
investment rating agency;
(h) INTENTIONALLY OMITTED;
(i) Investments in readily marketable commercial
paper, maturing within 270 days after the acquisition thereof,
which at the time of acquisition has the highest rating by
Standard & Poor's Corporation or Xxxxx'x Investors Service,
Inc.;
(j) U.S. Dollars on hand and in insured demand
deposit accounts or, if in excess of insurable amounts, in
deposit accounts at banks described in clause (g) above;
(k) Interest Rate Protection Agreements entered into
in compliance with Section 7.32 (Interest Rate Protection
Agreement);
(l) Promissory notes received in connection with a
disposition as permitted by Subsection 7.7.2(b) (Sales and
Other Dispositions);
(m) Money market funds which are substantially
invested in the types of Investments permitted in clauses (e)
through (j) above; and
(n) Investments which constitute purchases of
minority interests in Subsidiaries of the Company (from
Persons that hold minority interests as of the date of this
Agreement) subject to satisfactions of each of the following:
(i) no Event of Default or Potential Event
of Default shall have occurred and be continuing or
shall be caused thereby;
(ii) all (rather than a portion) of the
interests of the selling party or parties in the
Company and its Subsidiaries shall be purchased in
the same transaction;
- 49 -
59
(iii) the purchase price shall be no greater
than the fair market value of the Investment so
purchased and, if the Agent so requests, the Company
shall provide a third party fairness or other opinion
to that effect;
(iv) both before and (on a Pro Forma Basis)
after giving effect to the Investment, the Company
shall be in compliance with the financial covenants
set forth in Article 6;
(v) the Company shall give the Agent and
each Lender ten (10) Business Days prior written
notice of the proposed Investment, together with an
Officers' Compliance Certificate showing compliance
on a Pro Forma Basis with the financial covenants set
forth in Article 6; and
(vi) if the purchase of the minority
interest is pursuant to the Xxxxxxx Put, (A) the
Company shall deliver at least ten (10) Business Days
prior to the date of the proposed purchase, revised
projections through the Maturity Date, which shall be
made in good faith and based on reasonable
assumptions and which shall show pro forma compliance
with the financial covenants through the period
ending one year plus one day after the purchase is
consummated, after giving effect to the transactions
contemplated by the Xxxxxxx Put (including any
additional Indebtedness and payments scheduled to be
made in respect thereof) and (B) the purchase price
may be paid in cash up to the Available Commitment
and through the issuance of the Xxxxxxx Note.
7.3.3 ACQUISITIONS. Notwithstanding the terms of Subsection
7.3.1 above, the Company or any Subsidiary of the Company may acquire all or
substantially all of the capital stock in, and a Subsidiary of the Company may
acquire all or substantially all of the assets of, any Person that is solely
engaged in a Permitted Business (an "Acquisition"), but only subject to and upon
satisfaction of the following terms and conditions:
(a) The Company shall provide the Lenders with not
less than five (5) Business Days prior written notice of each Acquisition (or
series of related Acquisitions), the aggregate consideration for which would
exceed Five Million Dollars ($5,000,000), together with an Officers' Compliance
Certificate showing, on a Pro Forma Basis, compliance with the provisions of
paragraph (c) below and, upon request, will provide the Agent with a copy of the
acquisition agreement and copies of related documents as they become available;
(b) no Acquisition may be made if an Event of Default
or Potential Event of Default exists either before or after giving effect to
such Acquisition;
- 50 -
60
(c) no Acquisition may be made if, on a Pro Forma
Basis after giving effect to such Acquisition, the Company is not in compliance
with the financial covenants specified in Article 6 (Financial Covenants);
(d) without the prior written approval of the
Requisite Lenders, which approval may be granted or withheld in the sole
discretion of the Requisite Lenders, no single Acquisition may be made for
consideration in excess of Seventy-Five Million Dollars ($75,000,000) (including
in determining consideration the present value (computed utilizing the Base Rate
plus Applicable Margin then in effect) of payments directly or indirectly to
principals of the seller for non-compete, consulting or the like), provided that
approval of the Requisite Lenders shall not be required for any Acquisition even
if the consideration paid is in excess of Seventy-Five Million Dollars
($75,000,000) if the Consolidated Leverage Ratio is below 4.50:1 (measured as of
the end of the last fiscal quarter with respect to which quarterly or annual
financial statements of the Company and its Subsidiaries have been furnished to
Lenders, and taking into account Indebtedness incurred since such date) at the
time of the execution of the definitive agreement relating to the Acquisition,
both before giving effect to the Acquisition and on a Pro Forma Basis after
giving effect to the Acquisition;
(e) without the prior written approval of the
Requisite Lenders, which approval may be granted or withheld in the sole
discretion of Requisite Lenders, no Acquisition may be made if the aggregate
consideration paid or payable in respect of all Acquisitions from and after the
Closing Date, including the proposed Acquisition, exceeds One Hundred Million
Dollars ($100,000,000), provided that approval of the Requisite Lenders shall
not be required for any Acquisition even if the consideration paid and payable
for such Acquisition, together with the consideration paid and payable for all
other Acquisitions from and after the Closing Date, exceeds $100,000,000 if the
Consolidated Leverage Ratio is below 4.50:1 (measured as of the end of the last
fiscal quarter with respect to which quarterly or annual financial statements of
the Company and its Subsidiaries have been furnished to Lenders, and taking into
account Indebtedness incurred since such date) at the time of the execution of
the definitive agreement relating to the Acquisition, both before giving effect
to the Acquisition and on a Pro Forma Basis after giving effect to the
Acquisition. If the aggregate amount of consideration paid and payable in
respect of Acquisitions from and after the Closing Date exceeds $100,000,000 at
any time, and at any time thereafter the Consolidated Leverage Ratio equals or
exceeds 4.50:1, any additional Acquisition shall require the prior written
approval of the Requisite Lenders;
(f) if such Acquisition is of a Subsidiary,
contemporaneously with the closing of such Acquisition, all of the capital stock
of the Subsidiary and all material assets of such Subsidiary shall be subject to
a valid first priority security interest pursuant to the Loan Documents (subject
only to Permitted Liens) and the Subsidiary that is acquired shall execute and
deliver to Agent the Subsidiary Suretyship;
(g) if such acquisition is of assets (rather than
equity), contemporaneously with the closing of such Acquisition, all of the
material assets so acquired shall be subject to a
- 51 -
61
valid first priority security interest pursuant to the Loan Documents, subject
only to Permitted Liens;
(h) if such Acquisition includes FCC Licenses to be
used in connection with the radio broadcast business, such licenses shall be
owned by Radio License Subsidiaries;
(i) all necessary or appropriate governmental,
judicial or other third party approvals, waivers or consents necessary for such
Acquisition shall have been obtained and become final or Final Orders, as
applicable, and shall remain in full force and effect; and
(j) Company shall promptly upon request of the Agent
or any Lender provide such further information and documentation as may be
reasonably requested by the Agent or such Lender.
7.3.4 ADDITIONAL LIMITATIONS ON INVESTMENTS. Notwithstanding
any provision in this Agreement to the contrary, no Investment may be made:
(i) which would result in any Subsidiary being a
Person other than a corporation, limited partnership or
limited liability company organized under the laws of any
state of the United States all of whose capital stock or
ownership interests is owned directly or indirectly by the
Company provided, that nothing in this Subsection 7.3.4 shall
(1) prohibit the Company from making additional investments
(otherwise permitted by this Agreement) in any Subsidiary that
as of the date of this Agreement is not wholly-owned directly
or indirectly by the Company (collectively, "Permitted
Non-wholly Owned Subsidiaries") or (2) prohibit any such
Permitted Non-wholly Owned Subsidiary from acquiring another
Subsidiary that (after such acquisition) is wholly-owned by
the Permitted Non-wholly Owned Subsidiary;
(ii) unless all of the equity interest acquired in
connection with such Investment is pledged pursuant to the
Loan Documents; and
(iii) if such Investment is an Investment in a
Subsidiary, (1) unless the Agent has a first priority security
interest in all of the material assets of such Subsidiary,
subject only to Permitted Liens, and (2) such Subsidiary is or
becomes a party to the Subsidiary Suretyships as a guarantor
and surety.
The restrictions on Acquisitions and Investments contained in this Subsection
7.3.4 shall be construed to be in addition to, and not in lieu of, the
restrictions contained elsewhere in this Agreement.
- 52 -
62
7.4 RESTRICTED PAYMENTS.
The Company will not and will not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum or property for any Restricted Payment, except that:
(a) INTERCOMPANY. Restricted Payments may be declared and paid
by a Subsidiary of the Company to the Company or another Subsidiary of the
Company which is a shareholder in any of the Company's Subsidiaries to the
extent of their proportionate interests in items of revenues, income and assets
of the Subsidiary making such Restricted Payments.
(b) ESOP LOAN. In addition, one or more Restricted Payments
may be made to SPC in a Net Amount (as defined below) not to exceed One Hundred
and Twenty Million Dollars ($120,000,000) on (or within 60 days of) the Closing
Date (the "ESOP Loan"), to effect the funding of the ESOP, so long as (i) no
Event of Default or Potential Event of Default exists or would thereby be
created and (ii) the Company shall have received net proceeds in an amount at
least equal to $100,000,000 from the issuance of Senior Subordinated Notes
issued in compliance with the terms of Section 7.1 (Indebtedness) above. (It is
understood that, for purposes of this paragraph (b), "Net Amount" means the
excess of the gross amount of the loan to SPC over the amount repaid by SPC on
the date that the loan is made. Further, it is understood that the Company may
loan a gross amount not to exceed $176,000,000 to SPC but, of that amount, SPC
shall repay to the Company an amount equal to at least $58,000,000 on the same
day as the loan is made.)
(c) RESTRICTED PAYMENT BASKET. In addition, Restricted
Payments may be made in any fiscal year in an amount not to exceed the amount of
the Restricted Payments Basket (as hereinafter defined) so long as no Event of
Default or Potential Event of Default exists or would be created as a result of
paying the Restricted Payment. "Restricted Payments Basket" is an amount
initially equal to Ten Million Dollars ($10,000,000) to which shall be added in
each year beginning with the year 2000 an amount equal to five percent (5%) of
the Actual EBITDA for the prior fiscal year and from which shall be deducted an
amount equal to the amount of any Restricted Payments made pursuant to this
clause (c) from time to time.
(d) XXXXXXX NOTE AND PURCHASE OF MINORITY INTEREST. So long as
there is no Event of Default or Potential Event of Default both before and after
the proposed payment is made and the Company can demonstrate compliance, on a
Pro Forma Basis, with the Fixed Charge Coverage Ratio test set forth in Section
6.5 of this Agreement, the Company may make payments of principal or interest or
prepayments of principal and accrued interest, from time to time, under the
Xxxxxxx Note. In addition, subject to availability under this Agreement, the
Company or applicable Subsidiary may use proceeds of Loans to pay in cash as
much of the purchase price of the stock subject to the Xxxxxxx Put as is
permitted by clause (n) (vi) of Subsection 7.3.2 (Investments).
- 53 -
63
(e) PAYMENTS SEPARATE. For the sake of clarity, each of the
exceptions to the limitation on Restricted Payments set forth in this Section
7.4 is separate and cumulative. By way of example, Restricted Payments made to
Xxxxxxx pursuant to paragraph (d) above shall be in addition to, and not reduce,
the amount of the Restricted Payments Basket.
7.5 SALE-LEASEBACKS.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly sell or otherwise transfer, in one or
more related transactions, any property (whether real, personal or mixed) and
thereafter rent or lease such transferred property or substantially identical
property.
7.6 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, engage in any transaction with (a) any
holder of 5% or more of any class of the capital stock or ownership interest of
the Company or any of its Subsidiaries or (b) any Affiliate of the Company or of
any such holder, on terms that are less favorable to the Company or any
Subsidiary of Company than those which might be obtained at the time from
Persons which are not such a holder or Affiliate, provided that the foregoing
restrictions shall not apply to (i) loans by Company to its Subsidiaries
permitted under Paragraph (e) of Subsection 7.1.1 (Indebtedness), (ii)
transactions between a Subsidiary of the Company and the Company or another
Subsidiary of the Company which are not otherwise prohibited under the
provisions of this Agreement, and (iii) the transactions described on Schedule
7.6. If any such Affiliate transaction other than an Excluded Transaction is in
excess of $1.0 million, it shall be
(a) set forth in writing; and
(b) approved by a majority of the disinterested
members of the board of directors of the Company.
If any such Affiliate transaction (excluding any Excluded Transaction) is in
excess of $5.0 million, it shall be determined by a nationally recognized
investment banking or accounting firm to be fair to the Company and its
Subsidiaries.
7.7 MERGERS AND DISPOSITIONS.
7.7.1 CONSOLIDATIONS AND MERGERS. The Company will not, and
will not permit any of its Subsidiaries to, directly or indirectly:
(a) consolidate with or merge into any other Person,
except that (i) a Subsidiary of the Company, other than a Radio License
Subsidiary, may consolidate with or
- 54 -
64
merge into a Subsidiary of the Company or a Person which simultaneously
therewith becomes a Subsidiary of the Company as a result of an Acquisition
permitted under Section 7.3 (Investments and Acquisitions) and (ii) a Radio
License Subsidiary may consolidate with or merge into a Subsidiary of the
Company so long as the surviving entity is a Radio License Subsidiary; and
(b) permit any Person that is not a Subsidiary of the
Company to consolidate with or merge into it, except that a Person that is not a
Subsidiary of the Company may be consolidated with or merged into the Company or
a Subsidiary of the Company in connection with an Acquisition permitted under
Subsection 7.3.3 (Acquisitions) so long as the Consolidated Net Worth of the
Company after the merger is at least as great as the Consolidated Net Worth
prior to the merger.
7.7.2 SALES AND OTHER DISPOSITIONS. The Company will not, and
will not permit any Subsidiaries to, directly or indirectly sell, lease, abandon
or otherwise transfer or dispose of any substantial amount of its assets or
property, or sell, lease, abandon or otherwise transfer or dispose of any of its
assets or property of any nature except in the ordinary course of its business,
except as follows:
(a) a Subsidiary of the Company, other than a Radio
License Subsidiary, may transfer its assets to another Subsidiary of the
Company.
(b) The Company and its Subsidiaries may, upon twenty
(20) days prior written notice to the Agent and the Lenders, dispose (by sale,
merger, consolidation or otherwise) of all or any part of its assets outside the
ordinary course of business so long that as of the date of such disposition, and
both before and after giving effect thereto, no Event of Default or Potential
Event of Default exists, and, in the case of a disposition made pursuant to this
clause (b),
(i) such disposition is a sale to any Person
not an Affiliate of the Company for consideration
equal to not less than the fair market value of the
assets sold as determined in the good faith judgment
of the Board of Directors of the Company or the
applicable Subsidiary, at least seventy percent (70%)
of which consideration shall be cash and the balance
of which consideration shall be in the form of (A)
transferable promissory notes which shall, together
with any collateral or other credit support given to
the seller to secure such promissory note, be
immediately assigned to the Agent, for the benefit of
the Lenders, pursuant to instruments, assignments and
other documents in form and substance satisfactory to
Agent and if requested by Agent, accompanied by an
opinion of counsel in form and substance satisfactory
to the Agent in its reasonable judgment with respect
to the effectiveness and perfection of such
assignment or (B) other consideration satisfactory to
the Requisite Lenders in their sole discretion;
provided that the amount of consideration
- 55 -
65
which may be accepted in the form of transferable
promissory notes or other consideration may not
exceed an aggregate of Five Million Dollars
($5,000,000) at any time outstanding in respect of
all dispositions made by the Company or any of its
Subsidiaries; or
(ii) such disposition is an exchange with
any Person not an Affiliate of the Company of assets
of the Company or one of its Subsidiaries comprising
one or more cable television systems or radio
broadcast systems or the ownership interests of the
Person owning such a system or systems for assets
comprising one or more other cable television systems
or radio broadcast systems, as applicable, of a
similar nature and of equal or greater value as
determined in the good faith judgment of the Board of
Directors of the Company or the applicable
Subsidiary; or
(iii) the consideration for such disposition
is a combination of an exchange described in the
preceding clause (ii) and cash.
In the case of any disposition made pursuant to subparagraphs (i), (ii) or (iii)
above, the following conditions shall apply:
(A) the sum of (x) EBITDA attributable to
all assets subject to such disposition
determined as of the last day of the fiscal
quarter ending immediately preceding such
disposition for which quarterly or annual
financial statements of the Company and its
Subsidiaries were delivered to Lenders, plus
(y) EBITDA attributable to all other assets
disposed of by the Company and its
Subsidiaries pursuant to this paragraph (b),
in each case determined as of the last day
of the fiscal quarter ending immediately
preceding each such disposition for which
quarterly or annual financial statements of
the Company and its Subsidiaries were
delivered to Lenders, during the preceding
four fiscal quarters, shall not exceed 15%
of EBITDA determined as of the last day of
the fiscal quarter ending immediately
preceding the most recent disposition for
which quarterly or annual financial
statements of the Company and its
Subsidiaries were delivered to Lenders;
(B) The Company shall have furnished to
Lenders, not later than ten (10) days
preceding the date of such disposition, a
notice of disposition and, if the
disposition is for an aggregate purchase
price in an amount equal to Five Million
Dollars ($5,000,000) or more, an Officers'
Compliance Certificate showing compliance
with the terms of the following clause (C),
and other information relating to such
disposition, including the disposition
agreement
- 56 -
66
(and promptly, as they became available, any
related documents), which shall be in form
and content satisfactory to Agent;
(C) after giving effect to such disposition,
the Company is in compliance, on a Pro Forma
Basis, with the financial covenants
specified in Article 6 (Financial
Covenants);
(D) if the disposition is of ownership
interests in a Subsidiary, the Subsidiary
being disposed of has no continuing
Investment in the Company or any other
Subsidiary not being simultaneously disposed
of; and
(E) the disposition is made on a
non-recourse basis to the Company and its
Subsidiaries, other than to the extent of
normal and customary representations,
warranties and indemnities given to buyers
of Permitted Businesses.
(c) In addition to dispositions made pursuant to
clauses (a) or (b) above or clause (d) below, the Company or any Subsidiary of
the Company may sell the equity interest in any Subsidiary of the Company to any
minority investor thereof (that is a minority investor on the date of this
Agreement), subject to the following terms and conditions:
(i) no Event of Default or Potential Event
of Default shall have occurred and be continuing or
shall be caused thereby;
(ii) the Company and/or its Subsidiaries
shall sell to such minority investor all (but not
less than all) of the remaining interests that the
Company or any Subsidiary thereof has in each
Subsidiary that such minority investor has an
interest in;
(iii) the sale price shall be payable in
cash and no less than the fair market value of the
interests so sold and, if the Agent so requests, the
Company shall provide a third party fairness or other
opinion to that effect;
(iv) both before and (on a Pro Forma Basis)
after giving effect to the sale, the Company shall be
in compliance with the financial covenants set forth
in Article 6; and
(v) the Company shall give the Agent and
each Lender ten (10) Business Days prior written
notice of the proposed sale, together with an
Officers' Compliance Certificate showing compliance
on a Pro Forma Basis with the financial covenants set
forth in Article 6.
- 57 -
67
(d) In addition to dispositions permitted pursuant to
clauses (a), (b) and (c) above, the Company may dispose of the stock or assets
(at the Company's option) of Susquehanna Cable and its Subsidiaries in
accordance with the terms of Section 5 (h) of the Fifth Amendment to the Xxxxxxx
Agreement (as such terms are incorporated into the Xxxxxxx Note), subject to the
following terms and conditions:
(i) no Event of Default or Potential Event
of Default or default under the Senior Subordinated
Indenture shall have occurred and be continuing or
shall be caused thereby;
(ii) the Company shall be in compliance with
the financial covenants set forth in Article 6 above,
on a Pro Forma Basis, after giving effect to the
disposition and the application of proceeds pursuant
to subclause (iv) below;
(iii) the Company shall give the Agent and
each Lender ten (10) Business Days prior written
notice of the proposed sale along with an Officers
Compliance Certificate, showing compliance with the
financial covenants set forth in Article 6 above, on
a Pro Forma Basis, after giving effect to the
disposition and the application of proceeds pursuant
to subclause (iv) below; and
(iv) Proceeds of such disposition shall be
applied first to repay the Senior Secured Obligations
to the extent then due and payable, and other
Indebtedness of the entities sold, then to prepay or
repay the Xxxxxxx Note to the extent that such
repayment does not cause an Event of Default or
Potential Event of Default or default under the
Senior Subordinated Indenture, and the excess shall
be used to repay Loans pursuant to Section 1.1.5
(Commitment Reductions In Connection With Asset
Sales) or 1.3.6 (Mandatory Prepayments in Connection
with Certain Asset Sales) above.
7.8 MANAGEMENT FEES.
7.8.1 LIMITATIONS ON MANAGEMENT ARRANGEMENTS. Except for the
Management Agreement and the payment of Management Fees to SPC pursuant thereto,
the Company shall not, and shall not permit any of its Subsidiaries to, (a)
enter into any management agreement with any Person that gives such Person the
right to manage any broadcast radio station or cable television system or other
Permitted Business owned by the Company or any of its Subsidiaries, or (b)
directly or indirectly pay or accrue to an entity any sum or property for fees
for management or similar services rendered in connection with the operation of
a Permitted Business. Notwithstanding the foregoing (i) other than ESOP-related
expenses which may be paid only to the extent provided in the ESOP Sharing
Agreement, the Company and its
- 58 -
68
Subsidiaries may reimburse SPC for actual out of pocket expenses paid by SPC
(and not overhead expense) for the account of the Company and its Subsidiaries
in respect of the items listed on Schedule 7.8 (which expenses are deducted in
the computation of Consolidated Net Income) so long as SPC does not profit from
any such reimbursements and such reimbursements are not in excess of amounts
that the Company and its Subsidiaries would have paid had they paid for such
items directly (the reimbursement referred to in this clause (i) (which excludes
ESOP-related expenses) is hereinafter referred to as "SPC Expense
Reimbursement"), (ii) the Company or any of its Subsidiaries may enter into a
management agreement to give a Person that is not an Affiliate of the Company or
any of its Subsidiaries the right to manage one or more radio broadcast
stations, cable television systems or other Permitted Business owned by the
Company or any of its Subsidiaries so long as all of the stations, systems or
businesses so managed do not contribute more than an aggregate of five percent
(5%) of EBITDA in respect of any fiscal year of the Company, and (iii) the
Company or any of its Subsidiaries may enter into agreements in the ordinary
course of business to pay Persons that are not Affiliates of the Company or any
of its Subsidiaries for certain management type services provided to the Company
or its Subsidiaries, such as joint sales agreements, local marketing agreements,
or time brokerage agreements entered into in connection with permitted
divestitures.
7.8.2 LIMITATIONS ON MANAGEMENT FEES. Management Fees payable
by the Company and its Subsidiaries may not exceed four percent (4%) of the
Consolidated revenues (net of agency commissions) of the Company and its
Subsidiaries for any fiscal year provided, however, that during any period that
an Event of Default has occurred and is continuing Management Fees payable by
the Company and its Subsidiaries may not exceed two and one-half percent (2
-1/2%) of the Consolidated revenues (net of agency commissions) of the Company
and its Subsidiaries for any fiscal year.
7.9 EXISTENCE.
The Company will at all times preserve and keep in full force
and effect (i) its corporate existence and its rights and franchises and (ii)
the corporate or partnership existence of each of its Subsidiaries and the
rights and franchises of each such Person, including the good standing of such
Persons in all states in which they are formed or required to qualify to do
business, except where the failure to keep in full force and effect any such
rights and franchises could not have a Material Adverse Effect and except that a
Subsidiary of the Company may be dissolved following the transfer of all of its
assets to one or more other Subsidiaries of the Company (the "transferee
Subsidiaries") subject to the conditions that (y) both before and after the
transfer and subsequent dissolution, no Event of Default or Potential Default
shall exist and (z) all of the equity of the transferee Subsidiaries shall have
been duly pledged to the Agent pursuant to the Pledge Agreements, all of the
material assets of the transferee Subsidiaries shall have been pledged as
security pursuant to the Security Agreement and the transferee Subsidiaries
shall all be parties to one or more Subsidiary Suretyships.
- 59 -
69
7.10 COMPLIANCE WITH LAW.
The Company and each of its Subsidiaries shall comply with all
laws, ordinances and governmental rules and regulations to which each is
subject, and obtain or maintain all Franchises (including without limitation FCC
Licenses or PUC Franchises), permits, franchises and other governmental
authorizations and approvals necessary for the ownership, acquisition and
disposition of their respective properties and the conduct of their respective
businesses and shall comply with FCC and PUC construction, operating and
reporting requirements, except to the extent that the failure to do any of the
foregoing could not have a Material Adverse Effect.
7.11 PAYMENT OF TAXES AND CLAIMS.
The Company will, and will cause each of its Subsidiaries to,
pay all taxes, assessments and other governmental charges imposed upon it or any
of its properties or assets or in respect of any of its franchises, business,
income or profits before any penalty or interest accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
might become a Lien upon any of its properties or assets, provided that no such
charge or claim need be paid if being contested in good faith by appropriate
proceedings promptly initiated and diligently conducted and if such reserve or
other appropriate provision, if any, as shall be required by GAAP shall have
been made therefor and, if the filing of a bond or other indemnity is necessary
to avoid the creation of a Lien against any of the assets of the Company or any
of its Subsidiaries, such bond shall have been filed or indemnity provided.
7.12 TAX CONSOLIDATION.
Except as contemplated by the Tax Sharing Agreement, the
Company will not file or consent to or permit the filing of any consolidated
income tax return on behalf of it or any of its Subsidiaries with any Person
(other than a consolidated return of the Company and its Subsidiaries). Except
as provided in the Tax Sharing Agreement, the Company will not enter into any
agreement with any Person which would cause the Company to bear more than the
amount of taxes to which it would have been subject had it separately filed a
consolidated return with its own Subsidiaries as an affiliated group.
7.13 COMPLIANCE WITH ERISA.
7.13.1 The Company shall, and shall cause its Subsidiaries and ERISA Affiliates
to, make all contributions to any Employee Pension Plan and Multiemployer Plan
when such contributions are due and not incur any Accumulated Funding
Deficiency, whether or not waived, and will otherwise comply with the
requirements of the Code and ERISA with respect to the operation of all Plans,
except to the extent that the failure to so comply could not have a Material
Adverse Effect.
- 60 -
70
7.13.2 The Company shall, and shall cause its Subsidiaries and
ERISA Affiliates to, comply in all material respects with the provisions of
ERISA and the Code with respect to any Plan both in form and operation
including, but not limited to, the timely filing of required annual reports and
the payment of PBGC premiums.
7.13.3 The Company shall, and shall cause its Subsidiaries and
ERISA Affiliates to, comply in all respects with the requirements of COBRA
regarding continued health coverage and of the Health Insurance Portability and
Accountability Act of 1996 with respect to any Plans subject to the requirements
thereof, except to the extent that the failure to so comply could not have a
Material Adverse Effect.
7.13.4 The Company will not, and will not permit any of its
Subsidiaries or any of its ERISA Affiliates to take any of the following actions
or permit any of the following events to occur if such action or event together
with all other such actions or events would subject the Company, any of its
Subsidiaries, or any of its ERISA Affiliates to any tax, penalty, or other
liabilities which could have a Material Adverse Effect:
(a) engage in any transaction in connection with
which the Company, any of its Subsidiaries or any ERISA Affiliate could be
subject to either a civil penalty assessed pursuant to Section 502(i) of ERISA
or a tax imposed by Section 4975 of the Code;
(b) terminate any Employee Pension Plan in a manner,
or take any other action, which could result in any liability of the Company,
any of its Subsidiaries or any ERISA Affiliate to the PBGC;
(c) fail to make full payment when due of all amounts
which, under the provisions of any Plan, the Company, any of its Subsidiaries or
any ERISA Affiliate is required to pay as contributions thereto, or permit to
exist any Accumulated Funding Deficiency, whether or not waived, with respect to
any Employee Pension Plan;
(d) permit the current value of all vested accrued
benefits under all Plans which are subject to Title IV of ERISA to exceed the
current value of the assets of such Plans allocable to such vested accrued
benefits, except as may be permitted under actuarial funding standards adopted
in accordance with Section 412 of the Code; or
(e) withdraw from any Multiemployer Plan, if such
withdrawal would result in the imposition of Withdrawal Liability.
7.13.5 The Company shall comply with the ERISA reporting
requirements set forth in Subsection 5.3.4 (Reportable Events, Etc.) hereof.
- 61 -
71
As used in this Section, the term "accrued benefit" has the meaning
specified in Section 3(23) of ERISA and the term "current value" has the meaning
specified in Section 4001(a)(18)(B) of ERISA.
7.14 MATTERS RELATING TO THE ESOP.
7.14.1 TAX DETERMINATION LETTER. The Company shall seek or
cause SPC to seek and take the necessary steps to receive a favorable
determination letter issued by the Internal Revenue Service stating that the
ESOP is qualified for favorable tax treatment under Section 401 and as
applicable, Section 409 of the Code. Such request shall be filed with the
Internal Revenue Service before the end of the ESOP's initial remedial amendment
period under Section 401(b) of the Code and the regulations issued thereunder.
7.14.2 REIMBURSEMENT AND ALLOCATION MATTERS. The Company shall
make all payments in respect of the ESOP in accordance with the terms of the
ESOP Sharing Agreement.
7.15 INSURANCE.
7.15.1 LIABILITY, PROPERTY DAMAGE, ETC. The Company will
maintain or cause to be maintained with financially sound and reputable
insurers, insurance with respect to the properties and business of the Company
and its Subsidiaries against loss or damage of the kinds customarily insured
against by Persons of established reputation engaged in the same or similar
businesses and similarly situated, of such types and in such amounts as are
customarily carried under similar circumstances by other such Persons and
otherwise as is prudent for Persons engaged in conducting business in the cable
television industry and radio broadcast industry and any such other insurance as
may be required by the Security Agreement. Annually (and from time to time upon
request of the Agent) the Company will promptly furnish or cause to be furnished
to the Agent and Lenders evidence, in form and substance satisfactory to the
Agent, of the maintenance of all insurance, indemnities or bonds required by
this Section or by any permit, license, or other agreement to be maintained,
including copies thereof and proof of premium payments.
7.15.2 PBGC. The Company shall maintain or cause to be
maintained all insurance available through the PBGC and/or insurers acceptable
to the Agent against its obligations and the obligations of its Subsidiaries to
the PBGC.
7.16 MAINTENANCE OF PROPERTIES.
The Company will maintain or cause to be maintained its
properties and the properties of its Subsidiaries in good repair, working order
and condition and make or cause to be made all appropriate and proper repairs,
renewals, replacements, additions and improvements thereto, and keep all systems
and equipment which may now or in the future be subject to compliance with any
material standards or rules (including, without limitation, compliance with
- 62 -
72
requirements as to the time periods in which system construction must be
completed) imposed by any governmental agency or authority (including, without
limitation, the FCC, any PUC or other state or local governments or
instrumentalities) in compliance in all material respects with such standards or
rules. The Company shall and shall cause its Subsidiaries to install and
maintain their respective equipment and systems in compliance in all material
respects with any material requirement imposed under FCC or PUC regulations,
permits, or licenses or under agreements affecting the Company or any of its
Subsidiaries. The Company and its Subsidiaries shall maintain, preserve and
protect, and, when necessary, renew, all Franchises and all service marks,
trademarks and tradenames held by any of them and all agreements to which any of
them are parties which are necessary or useful to conduct the Permitted
Businesses, except where the failure to do any of the foregoing could not have a
Material Adverse Effect.
7.17 MAINTENANCE OF RECORDS; FISCAL YEAR.
The Company will, and will cause each of its Subsidiaries to,
keep at all times books of record and account in which full, true and correct
entries will be made of all dealings or transactions in relation to its business
and affairs. The Company will keep and will cause each of its Subsidiaries to
keep its books of account and financial statements in accordance with GAAP and
report on the basis of a fiscal year ending December 31.
7.18 INSPECTION.
Upon reasonable notice (and for this purpose no more than two
Business Days notice shall be required under any circumstances) if no Event of
Default or Potential Event of Default shall exist, or at any time with or
without notice after the occurrence of an Event of Default or Potential Event of
Default, the Company will, and will cause each of its Subsidiaries to, allow any
representative of Agent, the Issuing Bank or any Lender to visit and inspect any
of the properties of the Company and any of its Subsidiaries, to examine the
books of account and other records and files of the Company and any of its
Subsidiaries (including, without limitation, the financial statements (audited
and unaudited, to the extent prepared) of each Subsidiary and information with
respect to each Permitted Business operated by the Company and any of its
Subsidiaries), to make copies thereof and to discuss the affairs, business,
finances and accounts of the Company and its Subsidiaries with its personnel and
accountants, all at such reasonable times (and to the extent feasible, during
ordinary business hours) and as often as the Agent, the Issuing Bank or any
Lender may request.
7.19 EXCHANGE OF NOTES.
Upon receipt of a written notice of loss, theft, destruction
or mutilation of any or all of the Notes and of a letter of indemnity from the
affected Lender or its successors or assigns, and upon surrendering for
cancellation such Note(s) if mutilated (in which event no indemnity shall be
required), the Company shall execute and deliver a new Note or Notes of like
tenor in lieu of such
- 63 -
73
lost, stolen, destroyed or mutilated Note(s), as the case may be. Any Note(s)
issued pursuant to this Section shall be dated so that neither gain nor loss of
interest shall result therefrom.
7.20 OTHER AGREEMENTS.
The Company will, and will cause each of its Subsidiaries to,
comply with all covenants and agreements set forth in, or required pursuant to,
any other agreement or document previously, concurrently or hereafter executed
or delivered by the Company or such Subsidiary in connection with this Agreement
or the other Loan Documents.
7.21 FURTHER ASSURANCES.
At its sole cost and expense, upon the reasonable request of
the Agent, the Company will duly execute and deliver or cause to be duly
executed and delivered, to the Agent and the Lenders such further instruments
and do or cause to be done such further acts as may be necessary or proper in
the reasonable opinion of the Agent to carry out more effectively the provisions
and purpose of this Agreement and the other Loan Documents.
7.22 CONSISTENT ACTION - VOTING.
The Company shall and shall cause its Subsidiaries to exercise
any and all voting or similar rights which they hold in any Person in a manner
consistent with adherence to the provisions of this Agreement and the other Loan
Documents.
7.23 TYPE OF BUSINESS.
7.23.1 PERMITTED BUSINESSES. Neither the Company nor any of
its Subsidiaries will directly or indirectly enter into any business which is
not a Permitted Business.
7.23.2 THE COMPANY. The Company shall have no business or
operations other than the ownership of the stock of, or partnership or other
equity interest in, its Subsidiaries, the ownership of other Investments
permitted hereunder and such other activities as may be consented to in writing
by the Requisite Lenders.
7.23.3 RADIO LICENSE SUBSIDIARIES. The Radio License
Subsidiaries shall have no business or operations other than the ownership of
their respective FCC Licenses and the granting of the right to use such FCC
Licenses to the Subsidiaries of the Company that use such licenses to operate
their respective radio broadcast businesses.
- 64 -
74
7.24 CONTROL OF BUSINESS.
Neither the Company nor any of its Subsidiaries shall enter
into any agreement with any Person which shall confer upon such Person the right
or authority to control or direct any of the business or assets of the Company
or any of its Subsidiaries.
7.25 SHAREHOLDERS.
The Company shall not issue, authorize the issuance of, or
obligate itself to issue any shares of its capital stock to any Person that (i)
would contravene any other provision of this Agreement, including result in a
Change of Control, or (ii) would result in there being capital stock of the
Company that is not pledged pursuant to the Pledge Agreements. No Subsidiary of
the Company shall issue, authorize the issuance of, or obligate itself to issue
any shares of its capital stock or ownership interests to any Person, that (i)
would contravene any other provision of this Agreement, including result in a
Change of Control, or (ii) would result in there being capital stock or
ownership interests of a Subsidiary that is not pledged pursuant to the Pledge
Agreements, except that stock and options to purchase non-voting stock of
BlazeNet and of Susquehanna Radio may be issued pursuant to the stock option
plans of such Subsidiaries presently in effect without requiring that such stock
be pledged pursuant to the Pledge Agreements so long as the amount of stock of
BlazeNet and of Susquehanna Radio that is not pledged does not exceed an
aggregate of ten percent (10%) of the issued and outstanding stock of each such
entity.
7.26 CHANGE IN DOCUMENTS; NEW DOCUMENTS.
7.26.1 LIMITATIONS ON CHANGES TO CERTAIN AGREEMENTs. The
Company will not, and will not permit any of its Subsidiaries to, amend or
supplement, and the Company will not, and will not permit any of its
Subsidiaries to consent to, any amendment or supplement to
(a) the respective articles or certificate of
incorporation, bylaws or other organization document of such Person (except that
the articles of incorporation of BlazeNet) may be amended to provide for a class
of non-voting shares) or the Management Agreement or Tax Sharing Agreement
without the prior written consent of the Agent, which consent will not be
unreasonably withheld if in the good faith judgment of the Agent the proposed
amendment or supplement could not have a Material Adverse Effect or otherwise
materially and adversely affect the interests of the Agent, the Issuing Bank or
the Lenders,
(b) the Senior Subordinated Indenture, the Senior
Subordinated Notes or any documents executed pursuant thereto that would (i)
increase the maximum principal amount of the Senior Subordinated Notes, (ii)
increase the interest payable on the Senior Subordinated Notes, or increase the
premium payable in the event of a prepayment of the Senior Subordinated Notes,
(iii) accelerate or otherwise shorten the time for payment of all or any part of
the Senior Subordinated Notes, (iv) add financial covenants or make any
financial covenants more restrictive, (v) add or modify any other covenants
thereto which would result in there being
- 65 -
75
covenants in the Senior Subordinated Notes or Senior Subordinated Indenture that
are more restrictive than the covenants herein, (vi) require collateral to be
pledged to secure the Senior Subordinated Notes or require any additional credit
support for the Senior Subordinated Notes, (vii) add events of default or make
any events of default more restrictive, (viii) affect in any way the
subordination terms thereof or (ix) directly or indirectly effectuate any of the
items referred to in clauses (i) through (ix), or
(c) the Xxxxxxx Agreement without the prior written
consent of the Requisite Lenders, except that the prior written consent of the
Requisite Lenders shall not be required for amendments, supplements or waivers
to the Xxxxxxx Agreement which are not material. The Company shall provide to
the Lenders a written copy of any proposed nonmaterial amendment, supplement or
waiver to the Xxxxxxx Agreement, together with a certification as to such
nonmateriality, at least five (5) Business Days prior to its effectiveness.
For purposes of this Section 7.26, an amendment or supplement will be deemed to
include, without limitation, the granting or receiving of a waiver or extension
howsoever such waiver or extension is denominated.
7.26.2 CONSISTENT ACTION - CONFLICTING AGREEMENTS. The Company
will not, and will not permit any of its Subsidiaries to, enter into any new
agreement or amend any existing agreement with or for the benefit of any
shareholder or other Person which, insofar as can be foreseen, will cause or
contemplates a non-compliance with a covenant under any of the Loan Documents.
7.27 PAYMENT OF INDEBTEDNESS; SUBORDINATION.
(a) Neither the Company nor any of its Subsidiaries
will make any payments of principal or interest (however denominated) with
respect to any Indebtedness, excluding the Loans, except such payments as are
required under the terms of the agreements or instruments as in effect on the
Closing Date representing such Indebtedness or pursuant to which such
Indebtedness was issued or created, or with respect to Indebtedness incurred
after the Closing Date and permitted by Section 7.1 (Indebtedness) as are
required under the original terms of the agreement or instruments representing
such Indebtedness or pursuant to which such Indebtedness is issued or created
and, as to Indebtedness incurred after the date thereof, amendments permitted
pursuant to the terms of such agreements or instruments. If any Person shall
hold Indebtedness of the Company which is subordinated in any degree to the
Loans and shall also hold Indebtedness which is not subordinated to the Loans or
is subordinated in a different degree, all payments to such Person prior to the
occurrence of an Event of Default or Potential Event of Default shall be made in
such manner as shall clearly distinguish the Indebtedness with respect to which
such payments are made by the Company or any of its Subsidiaries, and no
payments of subordinated Indebtedness shall be made after the occurrence of an
Event of Default or Potential Event of Default without the written consent of
the Agent, the
- 66 -
76
Issuing Bank and all of the Lenders. This provision shall not be deemed to
permit Indebtedness which is otherwise prohibited under this Agreement.
(b) The Company shall, and shall cause each of its
Subsidiaries to take such action (or refrain from taking such action) as may be
necessary to insure that the Senior Subordinated Notes are, and remain,
subordinated to all of the obligations hereunder.
7.28 SUBSIDIARY STOCK OWNERSHIP INTERESTS AND INDEBTEDNESS.
The Company will not, except to the Agent pursuant to the Loan
Documents or as permitted in Section 7.7 (Mergers and Dispositions) above or as
permitted in Section 7.2 (Liens) above:
(a) directly or indirectly sell, assign, pledge or
otherwise dispose of any Indebtedness of any Subsidiary or any shares of stock
of or ownership interest in any of its Subsidiaries (or warrants, rights or
options to acquire such Indebtedness, stock or ownership interest);
(b) permit any of its Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise dispose of (i) any Indebtedness
of the Company or of any other Subsidiary of the Company except to the Company
or to another Subsidiary of the Company, or (ii) any shares of stock of (or
warrants, rights or options to acquire stock of) any other corporate Subsidiary
except to the Company or a Subsidiary of the Company, or (iii) any ownership
interests in any other Subsidiary of the Company that is not a corporation,
except to the Company or to another Subsidiary of the Company;
(c) have outstanding, or permit any of its
Subsidiaries to have outstanding, any shares of preferred stock (or warrants,
rights or options exercisable therefor), except such preferred stock as is
outstanding on the date of this Agreement as set forth on Schedule 9.1; or
(d) permit any of its Subsidiaries directly or
indirectly to issue or sell any shares of such Subsidiary's stock or ownership
interests (or warrants, rights or options to acquire its stock or ownership
interests), except to the Company or a wholly-owned Subsidiary of the Company
and except pursuant to the currently existing stock option plans of BlazeNet and
Susquehanna Radio, but only so long as any stock issued pursuant to such plans
does not exceed ten percent (10%) of the issued and outstanding stock of each
such entity.
- 67 -
77
7.29 COMPLIANCE WITH FEDERAL RESERVE REGULATIONS.
No proceeds of the Loans shall be used by the Company, any of
its Subsidiaries or other Person, directly or indirectly to purchase or carry
any margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock. Neither the Company nor any of its Subsidiaries will,
directly or indirectly, otherwise take or permit to be taken any action which
would result in the Loans or the carrying out of any of the other transactions
contemplated by this Agreement, being violative of such Regulation U or of
Regulation T (12 C.F.R. 220, as amended) or of Regulation X (12 C.F.R. 224, as
amended) or any other regulation of the Board of Governors of the Federal
Reserve System.
7.30 FILINGS.
Company will file with the FCC, each PUC and other regulatory
or administrative bodies in a timely fashion (taking into account extensions
authorized under applicable regulations that will not result in any penalty)
copies of the Loan Documents to the extent required under applicable law and any
and all other documents required to be filed by applicable law, rules or
regulations.
7.31 LIMITATIONS ON CERTAIN RESTRICTIVE PROVISIONS.
The Company will not, and will not permit any of its
Subsidiaries to (a) permit or place any restriction, directly or indirectly, on
(x) the payment of dividends or distributions by any Subsidiary or (y) the
making of advances or other cash payments by any such Subsidiary or (z) the
transfer by any Subsidiary of any of its properties or assets, in each case to
the Company or its Subsidiaries, other than restrictions in favor of the Senior
Subordinated Noteholders pursuant to the Senior Subordinated Indenture, or (b)
agree with any Person other than the Agent and the Lenders that the Company
and/or its Subsidiaries shall not amend the Loan Documents.
7.32 INTEREST RATE PROTECTION.
If at any time the Consolidated Total Leverage Ratio shall be
greater than 4.50:1 for two (2) consecutive fiscal quarters (as determined in
accordance with the financial statements and Officers' Compliance Certificate
delivered to the Lenders pursuant to Subsection 5.1.4 (Delivery of Officers'
Compliance Certificate) hereof, and if such financial statements and Officers'
Compliance Certificate are not delivered in a timely manner, then at the option
of the Agent regardless of the Consolidated Total Leverage Ratio), then within
ninety (90) days of the earlier of the time of delivery of such financial
statements and such Officers' Compliance Certificate or the time when such
delivery is due, at least forty percent (40%) but no more than one hundred
percent (100%) of Consolidated Indebtedness of Company and its Subsidiaries for
money borrowed shall bear interest at a fixed rate of interest and/or there
shall be in effect Interest Rate Protection Agreements, in form and substance
satisfactory to the Agent, that result in at least forty percent (40%) but no
more than
- 68 -
78
one hundred percent (100%) of Consolidated Indebtedness of the Company and its
Subsidiaries bearing interest at a fixed rate of interest.
7.33 ENVIRONMENTAL MATTERS.
The Company shall not, and shall not allow any of its
Subsidiaries to, (a) use or knowingly permit any Person to use any of the real
property owned or occupied by the Company or any Subsidiary of the Company for
the purposes of treating, producing, handling, transferring, processing,
transporting, disposing, storing or otherwise Releasing Hazardous Substances in
violation of any Environmental Laws, or (b) cause or knowingly permit to exist
as the result of an intentional or unintentional action or omission on the part
of the Company or any Subsidiary of the Company or any Person who occupies any
real property owned or occupied by the Company or any Subsidiary of the Company,
the Releasing, spilling, leaking, pumping, pouring, emitting or dumping from, or
on any real property owned or occupied by the Company or any Subsidiary of the
Company of any Hazardous Substance in violation of any Environmental Law,
except, in any such case, to any extent which could not have a Material Adverse
Effect.
7.34 CORPORATE SEPARATENESS.
The Company shall conduct its business and operations separate
from that of each of its Subsidiaries and from SPC and its other Subsidiaries.
Susquehanna Cable and each of its Subsidiaries shall conduct their business and
operations separately from that of Susquehanna Radio and each of its
Subsidiaries. Each of the foregoing shall take all such actions as are
appropriate to preserve such separation including, without limitation, not
commingling funds or other assets of SPC and its Subsidiaries (other than the
Company and the Subsidiaries of the Company) with the funds or other assets of
the Company and/or its Subsidiaries and (subject to the last sentence of this
Section 7.34) not commingling funds or other assets of Susquehanna Cable and
each of its Subsidiaries with the funds or assets of Susquehanna Radio and each
of its Subsidiaries and maintaining separate corporate and financial records and
observing all corporate and partnership formalities. It is understood that SPC
may provide certain administrative support to such Persons, that SPC and such
Persons may have a common employee stock ownership plan (including the ESOP) or
pension or other retirement plan, and that SPC and such Persons may have certain
common employees, so long as accurate records are kept of the allocation of each
such Person's respective obligations to bear its proportionate share of the
costs of any such support or employees and of the funds of each such Person
and/or the employees of such Person in a common employee stock ownership plan or
pension or other retirement plan. It is further understood that the Company and
its Subsidiaries may utilize common cash management services among themselves
(but not together with SPC or its other Subsidiaries), so long as accurate
separate financial records are kept for the Company and each of its
Subsidiaries.
- 69 -
79
ARTICLE 8
EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT.
"Event of Default" wherever used herein means any one of the
following events (whatever the reason for such Event of Default, whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court, or any order, rule or regulation
of any administrative or governmental instrumentality):
8.1.1 FAILURE TO PAY PRINCIPAL. If the Company shall fail to
make any payment of the principal of the Loans on the dates when the same shall
become due and payable, whether at stated maturity or at a date fixed for any
installment or prepayment thereof or otherwise; or
8.1.2 FAILURE TO PAY INTEREST, FEES, REIMBURSEMENT
OBLIGATIONS, ETC. If the Company shall fail to make any payment of interest on
the Loans, the Commitment Fees, reimbursement obligations in respect of Letters
of Credit or any other amounts owing hereunder (other than principal of the
Loans) or under any Letters of Credit on the dates when such interest,
Commitment Fees or other amounts shall become due and payable and such failure
continues for more than three (3) Business Days; or
8.1.3 CROSS DEFAULT TO INDEBTEDNESS. (a) If the Company or any
of its Subsidiaries shall default (as payor or guarantor or other surety) in the
payment of (i) any principal of or premium or interest on any Indebtedness
(other than obligations which are covered in Subsections 8.1.1 or 8.1.2 above),
or (ii) any direct or contingent reimbursement obligations arising on account of
the issuance of a letter of credit (other than those covered by Subsection 8.1.2
above), or (iii) any payment required to be made under any Interest Rate
Protection Agreement or other agreement having a similar purpose, and the
underlying obligation referred to in clauses (i), (ii) and/or (iii) with respect
to which a default has occurred aggregates One Million Dollars ($1,000,000) or
more or could result in a required payment of One Million Dollars ($1,000,000)
or more, or (b) if any event shall occur or condition shall exist in respect of
any such (i) Indebtedness, (ii) direct or contingent reimbursement obligations,
or (iii) payment obligations under any Interest Rate Protection Agreement or
other agreement having a similar purpose, or under any evidence of any of the
foregoing obligations referred to in clauses (i), (ii) and (iii) or under any
mortgage, indenture or other agreement relating thereto which would permit, or
shall have caused, the acceleration of the payment, time for payment or maturity
of any such obligations, and such default, event or condition referred to in
clauses (a) and/or (b) shall continue for more than the period of grace, if any,
specified therein and shall not have been waived pursuant thereto; or
8.1.4 OTHER CROSS-DEFAULTS. If the Company or any of its
Subsidiaries shall default in a payment or performance of any obligation (except
obligations which are covered in
- 70 -
80
Subsections 8.1.1, 8.1.2 and 8.1.3 hereof), whether now or hereafter incurred,
which default could have a Material Adverse Effect, and such default shall
continue for more than the period of grace, if any, specified in the agreement
or other documents setting forth the terms of such obligation, or shall not have
been waived pursuant thereto; or
8.1.5 MISREPRESENTATIONS. If any representation or warranty
made (a) by the Company in this Agreement or in any other Loan Document or (b)
by the Company or any other Person (other than the Agent, the Issuing Bank or a
Lender) in any document, certificate or statement furnished pursuant to this
Agreement or any other Loan Document, shall be false or misleading in any
material respect when made or deemed made; or
8.1.6 CERTAIN COVENANT DEFAULTS. If there shall occur a
default in the due performance or observance of any term, covenant or agreement
to be performed or observed pursuant to any of Article 6 (Financial Covenants),
Section 7.1 (Indebtedness), Section 7.2 (Liens), Subsection 7.3.3
(Acquisitions), Subsection 7.3.4 (Additional Limitations on Investments),
Section 7.4 (Restricted Payments), Section 7.5 (Sale-Leasebacks), Section 7.7
(Merger and Dispositions), the first sentence of Section 7.8 (Management Fees),
Section 7.9 (Existence) (insofar as such section requires the preservation of
existence of the Company and its Subsidiaries), Section 7.10 (Compliance with
Law), Section 7.11 (Taxes), Section 7.14 (ESOP), Section 7.17 (Records), Section
7.18 (Inspection), Section 7.22 (Consistent Action) through Section 7.28
(Stock), Section 7.31 (Limitations on Certain Restricted Provisions), Section
7.34 (Corporate Separateness) and Section 7.35 (Radio Licenses) of this
Agreement; or
8.1.7 OTHER COVENANT DEFAULTS. If there shall occur any
default in the due performance or observance of any term, covenant or agreement
to be performed or observed pursuant to the provisions of this Agreement, other
than as provided in Subsections 8.1.1, 8.1.2, 8.1.3, 8.1.4 and/or 8.1.6 above,
or any agreement incidental hereto (other than as provided in Subsection 8.1.8)
and, if capable of being remedied, such default shall continue unremedied after
the earlier of thirty (30) days after notice of the default shall have been
given to the Company or thirty (30) days after the Company becomes aware, or
should in the exercise of reasonable diligence have become aware, of such
default, provided, that if such default is of such nature that it can be
remedied by the Company but not within such period, the same shall not
constitute an Event of Default until the forty-fifth (45th) day (rather than the
30th day) so long as the Company institutes remedial action within such thirty
(30) day period and continuously and diligently pursues the same; or
8.1.8 OTHER LOAN DOCUMENT DEFAULTS; SECURITY. If any of the
parties, other than the Agent, the Issuing Bank and the Lenders, to any of the
Loan Documents (other than this Agreement) shall fail to perform any of its
obligations under any of such agreements (after taking into account any
applicable cure period set forth in such agreements); or if the validity of this
Agreement or any of the other Loan Documents shall have been challenged or
disaffirmed by or on behalf of any of such parties thereto; or if, other than as
a direct result of any action of the Agent, the Issuing Bank or the Lenders, any
Liens created or intended to be created by any of the
- 71 -
81
Loan Documents shall at any time cease to be valid and perfected first priority
Liens, subject to no equal or prior Liens except Permitted Liens; or
8.1.9 CUSTODY OR CONTROL OF ASSETS. If custody or control of
any substantial part of the property of SPC, the Company or any of the Company's
Subsidiaries shall be assumed by any governmental agency or any court of
competent jurisdiction, at the insistence of any governmental agency, or if any
governmental regulatory authority shall take any final action the effect of
which could have a Material Adverse Effect; or
8.1.10 DISCONTINUANCE OF BUSINESS; INSOLVENCY. If SPC, the
Company or any of the Company's Subsidiaries shall suspend or discontinue its
business, shall make an assignment for the benefit of creditors or a composition
with creditors, shall generally not be paying its debts as they mature, shall
admit its inability to pay its debts as they mature, shall file a petition in
bankruptcy, shall become insolvent (howsoever such insolvency may be evidenced),
shall be adjudicated insolvent or bankrupt, shall petition or apply to any
tribunal for the appointment of any receiver, custodian, liquidator or trustee
of or for it or any substantial part of its property or assets, shall commence
any proceeding relating to it under any bankruptcy, reorganization, arrangement,
readjustment of debt, receivership, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect; or if there shall be
commenced against SPC, the Company or any of the Company's Subsidiaries, any
such proceeding and the same shall not be dismissed within sixty (60) days or an
order, judgment or decree approving the petition in any such proceeding shall be
entered against SPC, the Company or any of the Company's Subsidiaries; or if
SPC, the Company or any of the Company's Subsidiaries, shall by any act or
failure to act indicate its consent to, approval of or acquiescence in, any such
proceeding or any appointment of any receiver, custodian, liquidator or trustee
of or for it or for any substantial part of its property or assets, or shall
suffer the appointment of any receiver, liquidator or trustee, or shall take any
corporate action for the purpose of effecting any of the foregoing; or if any
court of competent jurisdiction shall assume jurisdiction with respect to any
such proceeding and the same shall not be dismissed within sixty (60) days or if
a receiver or a trustee or other officer or representative of a court or of
creditors, or if any court, governmental office or agency, shall, under color of
legal authority, take and hold possession of any substantial part of the
property or assets of SPC, the Company or any of the Company's Subsidiaries, and
shall not have relinquished possession within sixty (60) days, or if SPC, the
Company or any of the Company's Subsidiaries, shall have concealed, removed, or
permitted to be concealed or removed, any part of its property, with intent to
hinder, delay or defraud its creditors, or any of them, or shall have made or
suffered a transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law, or if SPC, the Company or any
of the Company's Subsidiaries, shall have made any transfer of its property to
or for the benefit of a creditor which constitutes a preferential transfer under
any bankruptcy or similar law, or if SPC, the Company or any of the Company's
Subsidiaries, shall have suffered or permitted, while insolvent, any creditor to
obtain a lien upon any of its property through legal proceedings or distraint;
or
- 72 -
82
8.1.11 FCC LICENSES AND OTHER FRANCHISES. If the FCC or any
cable franchising authority or any other governmental agency (i) revokes,
terminates, suspends, fails to renew or extend, or substantially and adversely
modifies any Franchise(s) held by the Company or any of its Subsidiaries (any
such occurrence is herein referred to as an "Adverse Event") and the sum of (x)
that portion of the EBITDA attributable to the Franchise(s) affected by an
Adverse Event determined for the fiscal year immediately preceding such Adverse
Event, plus (y) that portion of the EBITDA attributable to all other
Franchise(s) affected by an Adverse Event since the Closing Date, (in each case
determined for the fiscal year immediately preceding the Adverse Event), exceeds
10% of EBITDA determined for the fiscal year immediately preceding the most
recent Adverse Event, or (ii) commences a proceeding in which the FCC or such
cable franchising authority or other governmental authority or agency seeks to
suspend, revoke, terminate or substantially or adversely modify any Franchise(s)
(and such suspension, revocation, termination or modification is not dismissed
or discharged within 180 days) which, either alone or in combination with other
Franchises with respect to which any such proceeding has been commenced and not
been dismissed or discharged, contributed more than 10% of EBITDA determined for
the fiscal year most recently ended; or
8.1.12 MATERIAL ADVERSE EFFECT. If there shall occur or be
threatened any event, or if there shall exist any fact or condition, which could
have a Material Adverse Effect; or
8.1.13 JUDGMENTS. If any final judgment or judgments or
non-appealable assessment or assessments for the payment of money in excess of
Five Hundred Thousand Dollars ($500,000) in the aggregate shall be rendered
against SPC, the Company or any of the Company's Subsidiaries and such judgment
remains either unstayed or unsatisfied for a period of thirty (30) days or more;
or
8.1.14 CHANGE OF CONTROL. If there shall occur a Change of
Control; or
8.1.15 XXXXXXX MATTERS. If Xxxxxxx assumes management control
of Susquehanna Cable or any of its Subsidiaries pursuant to the Xxxxxxx
Agreement or if there is any default under any Xxxxxxx Note at any time; or
8.1.16 LOSS OF TAX QUALIFICATION OF ESOP. If the IRS issues a
final notice (i.e., a notice that can no longer be appealed within the IRS
itself) that the ESOP has been disqualified for favorable tax treatment.
8.1.17 SUBORDINATION. If the obligations in respect of the
Senior Subordinated Notes and Senior Subordinated Indenture cease to be fully
subordinated to all of the obligations under this Agreement; or if the
obligations under the Senior Subordinated Notes or Senior Subordinated Indenture
become subject to guarantees of one or more Subsidiaries of the Company; or if
there is a "Change of Control" within the meaning of the Senior Subordinated
Indenture or if any other event or condition shall exist which requires the
Company to purchase
- 73 -
83
or prepay (or offer to purchase or prepay) all or any portion of the obligations
under the Senior Subordinate Notes or Senior Subordinated Indenture.
8.2 ACCELERATION; REMEDIES.
8.2.1 REMEDIES IN GENERAL. Upon the occurrence of any event
described in Section 8.1.10 (Insolvency), the entire unpaid principal balance of
the Notes, and interest accrued and premium, if any, thereon, and any unpaid
accrued Commitment Fees and all other amounts accrued hereunder or under the
other Loan Documents, shall be immediately due and payable by the Company and
the Commitment shall terminate without presentation, demand, protest, notice of
protest or other notice of dishonor of any kind, all of which are hereby
expressly waived by the Company. Upon the occurrence of any other Event of
Default, or at any time thereafter, if any Event of Default shall then be
continuing, the Agent may (and shall if directed by the necessary Lenders
pursuant to Subsection 12.6.1 (Actions upon Default)) by written notice to the
Company, declare the entire unpaid principal balance or any portion of the
principal balance of all or any of the Notes, and interest accrued and premium,
if any, thereon and any unpaid accrued Commitment Fees and all other amounts
accrued hereunder or under the other Loan Documents, to be immediately due and
payable by the Company and the Commitment shall terminate or, if no principal
balance shall be outstanding, the Agent may terminate the Commitment. Such
principal and interest, premium, fees, and other amounts shall thereupon become
and be immediately due and payable, without presentation, demand, protest,
notice of protest or other notice of dishonor of any kind, all of which are
hereby expressly waived by the Company; and the Agent (acting directly or
through appointment of one or more trustees of the Agent's choosing) may proceed
to protect and enforce its rights and those of the Issuing Bank, the Lenders and
other Senior Secured Parties under the Loan Documents in any manner or order it
deems expedient without regard to any equitable principles of marshalling or
otherwise. It is agreed that, in addition to all other rights hereunder or under
law, the Agent shall have the right to institute proceedings in equity or other
appropriate proceedings for the specific performance of any covenant or
agreement made in any of the Loan Documents or for an injunction against the
violation of any of the terms of any of the Loan Documents or in aid of the
exercise of any power granted in any of the Loan Documents or by law or
otherwise. Further, the Lenders shall be entitled to the appointment of a
trustee or receiver for all or any part of the businesses of the Company or any
of its Subsidiaries, which trustee or receiver shall have such powers as may be
conferred by the appointing authority. All rights and remedies given by this
Agreement, the Notes and the other Loan Documents are cumulative and not
exclusive of any of such rights or remedies or of any other rights or remedies
available to the Agent or any Lender, and no course of dealing between the
Company and the Agent or any Lender or any delay or omission in exercising any
right or remedy shall operate as a waiver of any right or remedy, and every
right and remedy may be exercised from time to time and as often as shall be
deemed appropriate by the Agent or any Lender.
8.2.2 WAIVERS. The Agent may (if authorized pursuant to
Subsection 12.5 (Amendments, Waivers and Consents)), by written notice to the
Company, at any time and from
- 74 -
84
time to time waive in whole or in part, and absolutely or unconditionally, any
Event of Default. Any such waiver shall be for such period and subject to such
conditions or limitations as may be specified in any such notice. In the case of
any such waiver, the rights of the Agent and the Lenders shall be otherwise
unaffected and any Event of Default so waived shall be deemed to be cured and
not continuing only to the extent and on the conditions or limitations set forth
in such waiver (unless such waiver shall state to the contrary), but no such
waiver shall extend to any subsequent or other Event of Default, or impair any
right upon the occurrence of any Event of Default.
8.2.3 REGULATORY MATTERS. If counsel to the Agent, the Issuing
Bank or any Lender, as the case may be, reasonably determines that the consent
of the FCC, any PUC, or other applicable regulatory authority is required in
connection with any of the actions which may be taken by the Agent, the Issuing
Bank or any of the Lenders, as the case may be, in the exercise of their rights
hereunder or under the other Loan Documents, then the Company, at its sole cost
and expense, shall use its best efforts to secure such consent and to cooperate
fully with the Agent, the Issuing Bank or the Lenders, as the case may be, in
any action commenced by any such Person, to secure such consent. Upon the
occurrence and during the continuation of an Event of Default, the Company,
subject to the provisions of applicable law, shall promptly execute and file
and/or cause the execution and filing of all applications, certificates,
instruments and other documents that the Agent, the Issuing Bank or the Lenders
deem necessary or advisable to file in order to obtain any governmental consent,
approval, or authorization, and if the Company fails or refuses to execute, or
fails or refuses to cause another Person to execute, such documents, the clerk
of any court with jurisdiction over the Loan Documents may execute and file the
same on behalf of the Company. The Company recognizes that the FCC Licenses and
other Franchises held by the Company and its Subsidiaries are unique assets
which may have to be transferred in order for the Lenders and other Senior
Secured Parties adequately to realize the value of their security interests. The
Company further recognizes that a violation of this covenant would result in
irreparable harm to the Lenders and other Senior Secured Parties for which
monetary damages are not readily ascertainable. Therefore, in addition to any
other remedy which may be available to the Agent, the Lenders or other Senior
Secured Parties, as the case may be, at law or in equity, the Agent, the Lenders
or other Senior Secured Parties, as the case may be, shall have the remedy of
specific performance of the provisions of this Subsection. To enforce the
provisions of this Subsection 8.2.3, the Agent is authorized to request the
consent or approval of the FCC, any PUC or other regulatory authority to a
voluntary or an involuntary transfer of control of any FCC License or other
Franchise. In connection with the exercise of its remedies under the Loan
Documents, the Agent may obtain the appointment of a trustee or receiver to
assume, upon receipt of all necessary judicial, FCC, PUC or other regulatory
authority consents or approvals, control of the Company or any of its
Subsidiaries. Such trustee or receiver shall have all rights and powers provided
to it by law or by court order or provided to the Agent or the Lenders or other
Senior Secured Parties under the Loan Documents. In addition, the Company shall
take, or cause to be taken, any action which the Agent may reasonably request in
order to obtain and enjoy the full rights and benefits granted to the Agent, the
Lenders and other Senior Secured Parties by the Loan Documents, including,
without
- 75 -
85
limitation, at the Company's cost and expense, the exercise of its best efforts
to cooperate in obtaining FCC, any PUC, or other regulatory approval of any
action or transaction contemplated by the Loan Documents which is then required
by law.
8.2.4 CERTAIN LIMITATIONS. Notwithstanding anything to the
contrary contained in this Agreement or any of the other Loan Documents, the
Agent and the Lenders will not knowingly take any action pursuant to this
Agreement or any such documents which would constitute or result in assignment
of an FCC License or other Franchise or any transfer of control of the holder of
an FCC License or other Franchise if such assignment of license or transfer of
control would require under then existing law (including the written rules and
regulations promulgated by the FCC or any PUC), the prior approval of the FCC or
such PUC, without first obtaining such approval. In connection with this
provision, the Agent and the Lenders shall be entitled to rely upon the advice
of counsel of the Agent's choice whether or not the advice rendered is
ultimately determined to have been accurate.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
In order to induce the Issuing Bank and the Lenders to enter
into this Agreement and to make the Loans and other extensions of credit
contemplated by this Agreement, the Company hereby makes the following
representations, covenants and warranties, which representations, covenants and
warranties shall survive the execution and delivery of this Agreement, the Notes
and the other Loan Documents and shall not be affected or waived by any
inspection or examination made by or on behalf of the Agent, Issuing Bank or
Lenders:
9.1 STATUS.
9.1.1 ORGANIZATION AND QUALIFICATION. SPC, the Company and
each of the Company's Subsidiaries are duly organized and validly existing
corporations, partnerships or limited liability companies, as applicable, under
the laws of the respective states indicated on Schedule 9.1 and each is in good
standing under the laws of its state of formation. Each of SPC, the Company and
the corporate Subsidiaries of the Company, has perpetual corporate existence,
and each of SPC, the Company, and the Subsidiaries of the Company has the
corporate, partnership or limited liability company power and authority to own
its property and assets and to transact the business in which it is engaged or
presently proposes to engage. None of SPC, the Company, or any of the Company's
Subsidiaries has failed to qualify to do business in any state or jurisdiction
where the failure to so qualify could have a Material Adverse Effect.
9.1.2 STOCK OWNERSHIP. All of the common stock of the Company
is owned by SPC. The preferred stock of the Company is owned by the Other
Shareholders specified on Schedule 9.1. The classes of stock of the Company and
the principal characteristics of each such
- 76 -
86
class and the number and percentage interests of each class (and certificate
numbers by which such interests are designated) owned by SPC and the Other
Shareholders are listed on Schedule 9.1. The Company does not have any
Subsidiary and does not presently operate all or any portion of its businesses
through any Person, other than as disclosed on Schedule 9.1. Schedule 9.1 also
correctly lists as to each Subsidiary of the Company on the date of this
Agreement
(a) its name,
(b) the jurisdiction of its incorporation or
organization,
(c) the classes of stock or partnership or other
equity interest issued by such Person and the principal characteristics of each
such class, and
(d) the names of each of the Other Shareholders and
the number and percentage of the issued and outstanding shares or partnership
interests of each class (and certificate numbers by which such interests are
designated) owned by each of the holders of such shares or interests.
All the outstanding shares of capital stock of the Company and of each of its
Subsidiaries are validly issued, fully paid and nonassessable, and all such
shares owned by SPC and all such shares and partnership and other equity
interests indicated in Schedule 9.1 as owned by the Company or any of its
Subsidiaries are so owned beneficially and of record by SPC, the Company and
each such Subsidiary, free and clear of any Lien, except for the Lien created
pursuant to the Loan Documents. Schedule 9.1 also correctly lists as to the
Company and each Subsidiary of the Company any options, warrants or other
securities issued by the Company or any Subsidiary of the Company and the
identity of each holder of any such option, warrant or other security. No
Subsidiary owns any shares of the Company as of the date hereof. Except as set
forth on Schedule 9.1, there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction on the voting or transfer of
any shares of, capital stock of the Company or any Subsidiary of the Company
pursuant to the certificate or articles of incorporation, bylaws or other
governing document or any agreement or other instrument to which the Company or
any Subsidiary of the Company is a party or by which any of them may be bound.
Notwithstanding the foregoing, it is understood that Susquehanna Cable and, from
time to time, other Subsidiaries of the Company may have certain phantom equity
programs as part of their employee incentive programs, but such phantom equity
issued pursuant to such programs provides only an economic (rather than
ownership) benefit to the beneficiaries.
9.1.3 CERTAIN ENTITIES. Susquehanna Ad Net, Inc., a
Pennsylvania corporation, KTHX Radio, Inc., a Nevada corporation, KTHX License
Investment Co., a Nevada corporation, and Susquehanna Energy Ventures, Inc., a
Pennsylvania corporation, as of the Closing Date have substantially no assets or
liabilities and it is the current intent of the Company to dissolve those
entities. Accordingly, they are excluded as of the Closing Date from the
definition of "Subsidiaries" as that term applies to "Subsidiaries of the
Company". If at any time any of those
- 77 -
87
entities acquire assets, it shall automatically be deemed to be a "Subsidiary"
of the Company and the Company shall cause such entities to execute the
Subsidiary Pledge, the Subsidiary Suretyship, the Security Agreement and take
such other action as is required of Subsidiaries of the Company under this
Agreement.
9.2 POWER AND AUTHORITY.
SPC, the Company and each of the Company's Subsidiaries has
the corporate, partnership or other power to execute, deliver and carry out, as
the case may be, the terms and provisions of the Loan Documents to which each is
a party, and each such Person has taken all necessary corporate, partnership or
other action (including, without limitation, any consent of stockholders or
partners required by law or by their respective articles of incorporation or
bylaws or other organizational documents) to authorize (as applicable to such
Person) the execution, delivery and performance of the Loan Documents to which
each is a party. The Loan Documents, when executed and delivered by SPC, the
Company or the Company's Subsidiaries, as applicable, constitute or will
constitute the authorized, valid and legally binding obligations of such Person
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity (regardless of whether such enforcement is
sought in a court of law or at equity).
9.3 NO VIOLATION OF AGREEMENTS.
None of SPC, the Company or any Subsidiary of the Company is
in default under the provisions of any agreement to which it is a party, which
default could result in a Material Adverse Effect. The execution and delivery of
the Loan Documents, the consummation of the transactions contemplated by the
Loan Documents and compliance with the terms and provisions of the Loan
Documents, will not (x) violate any provision of law or any injunction or any
applicable regulation, order, writ, judgment or decree of any court or
governmental department, commission, board, bureau, agency or instrumentality
applicable to SPC, the Company or any of the Company's Subsidiaries, or (y)
require consent under, conflict or will be inconsistent with, or will result in
any breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to impose) any Lien, other than the Liens created under the Loan
Documents or Permitted Liens, upon any of the property or assets of SPC, the
Company or any of the Company's Subsidiaries pursuant to the terms of, any
agreement, indenture, franchise, license, permit, mortgage or deed of trust to
which any such Person is a party or by which any such Person may be bound, or to
which any such Person may be subject, or (z) violate any of the provisions of
the articles of incorporation, bylaws or other organizational document of any
such Person.
9.4 RECORDING, ENFORCEABILITY AND CONSENT; VALIDITY OF SECURITY
INTEREST.
- 78 -
88
(a) Assuming the due recording of the UCC-1 financing
statements delivered in connection herewith, no consent, approval or
authorization of any Person, or recording, filing, registration, notice or other
similar action with or to any Person, is required in order to insure the
legality, validity, binding effect or enforceability of any of the Loan
Documents as against all Persons, except (i) such consents, approvals or
authorizations as have been obtained and remain in effect, (ii) certain consents
respecting the pledge of specific franchises, minority interests and certain
other assets which in the aggregate, do not constitute a material amount of
assets and (iii) such filings as may be required as contemplated in Section 7.30
(Filings). No consent, approval or authorization of any Person which has not
been obtained is required for the continued conduct by the Company or any of its
Subsidiaries of their business as now conducted or as proposed to be conducted.
(b) The Company has delivered, or caused to be
delivered, to the Agent all UCC-1 financing statements in recordable form that
may be necessary to perfect the security interests granted pursuant to the Loan
Documents to the extent that such security instruments may be perfected by
filing. The Company has delivered, or caused to be delivered, to the Agent all
instruments, documents and investment property necessary to perfect the security
interest granted pursuant to the Loan Documents, to the extent that a security
interest therein may be perfected by delivery. The Agent has a valid, first
priority security interest in all of the equity and Material Assets of the
Company and its Subsidiaries (other than the non-voting stock of BlazeNet and
Susquehanna Radio issued pursuant to its employee stock option plans), subject
only to Permitted Liens.
9.5 LITIGATION; COMPLIANCE WITH LAWS.
There are no actions, suits, protests, reconsiderations or
proceedings pending, or to the knowledge of the Company, threatened, against or
affecting SPC, the Company or any of the Company's Subsidiaries before any court
or before any governmental or administrative body or agency, including without
limitation the FCC or any PUC, wherein unfavorable decisions, rulings or
findings individually or in the aggregate could have a Material Adverse Effect.
None of SPC, the Company or any of the Company's Subsidiaries is in default
under the provisions of any applicable statute, rule, order, writ, injunction,
judgment, decree, certificate or regulation of any governmental authority having
jurisdiction in respect of any such Person, which default could have a Material
Adverse Effect.
9.6 NO BURDENSOME AGREEMENTS.
None of SPC, the Company or any of the Company's Subsidiaries
is a party to any agreement or instrument or subject to any corporate or other
restrictions which, assuming compliance by such Persons with the terms of such
agreements or instruments, could have a Material Adverse Effect.
9.7 CONDITION OF PROPERTY.
- 79 -
89
All of the material properties, equipment and systems of the
Company and its Subsidiaries are in good repair, working order and condition and
are and will be in material compliance with all standards or rules imposed by
any governmental agency or authority (including, without limitation, the FCC,
any PUC, and state or other local governments or instrumentalities) and as
imposed under any Franchise or agreements with telephone companies, other
utility companies and other Persons.
9.8 FEES.
The Company and each of its Subsidiaries has paid all
franchise, license and other fees and charges which have become due pursuant to
any franchise or permit in respect of its business and has made appropriate
provision as is required by GAAP for any such fees and charges which have
accrued.
9.9 LICENSES.
The Company and each of its Subsidiaries has duly secured all
necessary Franchises from, and has filed all required registrations,
applications, reports and other documents with, and paid all required royalty
and other fees to, the FCC, United States Copyright Office, the Register of
Copyrights, the Copyright Royalty Tribunal, each PUC and other entities
exercising jurisdiction over the provision of cable television and broadcast
radio or the construction of delivery systems therefor, in respect of their
respective businesses as currently conducted, in each case, where the failure to
do any of the foregoing could have a Material Adverse Effect. Without limiting
the generality of the foregoing, the Company and its Subsidiaries hold the FCC
Licenses and Franchises specified on Schedule 9.9 hereto; all such FCC Licenses
and Franchises are valid and in full force and effect; no event has occurred
which could (i) result in the revocation or termination of any such FCC License
or Franchise, or (ii) materially and adversely affect any rights of the Company
or its Subsidiaries under any such FCC License or Franchise; and the Company has
no reason to believe and no knowledge that the FCC Licenses and Franchises
specified on Schedule 9.9 will not be renewed in the ordinary course. True and
correct copies of all FCC Licenses and all Franchises listed on Schedule 9.9
have been delivered to any Lender that has so requested, and true and correct
copies of any additional material FCC Licenses and Franchises secured after the
date of this Agreement by the Company or any of its Subsidiaries (including
renewals of existing FCC Licenses and Franchises) shall be promptly delivered to
any Lender that so requests.
Schedule 9.9 correctly lists (a) the FCC Licenses which are
held by the Company or its Subsidiaries and (b) the other Franchises which are
held by such Persons, (c) the geographical area to which each such FCC License
or other Franchise relates and (d) the expiration date, if any, of each such FCC
License or other Franchise. Each Franchise issued to the Company or its
Subsidiaries is in full force and effect and each of the Company and its
Subsidiaries has fulfilled and performed all of its material obligations with
respect to each such Franchise. No event has occurred which permits, or after
notice or lapse of time or both would permit, revocation or
- 80 -
90
termination of any such Franchise, or which materially adversely affects or, so
far as the Company can now foresee, will materially adversely affect the rights
of a holder of any such Franchise.
9.10 TITLE TO PROPERTIES; LIENS.
The Company and each of its Subsidiaries has good and
marketable title to its properties and assets, including the properties and
assets reflected in the financial statements referred to in Subsection 9.14.1
(Financial Statements) (except properties and assets disposed of since the date
thereof in the ordinary course of business and properties and assets held under
Capital Leases), and none of such properties or assets is subject to any Liens
except Permitted Liens. Each of the Company and its Subsidiaries enjoys peaceful
and undisturbed possession under all leases necessary in any material respect
for the operation of such properties and assets, and all such leases are valid
and subsisting and are in full force and effect.
9.11 PATENTS, TRADEMARKS, AGREEMENTS, ETC.
Each of the Company and its Subsidiaries holds or has agreed
to purchase all patents, trademarks, service marks, trade names, copyrights,
franchises, licenses (including FCC Licenses and Franchises) and authorizations,
and all rights with respect to the foregoing, necessary for the conduct of its
business as now conducted, without any known material conflict with the rights
of others and subject only to Permitted Liens. Each of the Company and its
Subsidiaries has obtained all material easements and equipment rental or other
agreements necessary for the operation of its business as now conducted.
9.12 NAMES.
None of SPC, the Company or any of the Company's Subsidiaries
uses or has used for any material purposes within the past five (5) years any
fictitious, trade or assumed name other than "BlazeNet" or has had a corporate
or partnership name.
9.13 MANAGEMENT AGREEMENT.
Except for management agreements permitted by Subsection 7.8.1
(Management Arrangements), the Company and its Subsidiaries are not parties to
any management or other similar agreement.
9.14 FINANCIAL STATEMENTS AND PROJECTIONS.
9.14.1 FINANCIAL STATEMENTS. The Company has delivered to each
of the Lenders and the Issuing Bank complete and correct copies of the audited
financial statements of SPC and its Subsidiaries for the fiscal year ended
December 31, 1998. Such financial statements delivered to the Lenders and the
Issuing Bank have been prepared in accordance with GAAP applied on a consistent
basis throughout the period specified and present fairly in all material
respects the
- 81 -
91
financial position of SPC and its Subsidiaries as of the date specified and the
results of operations and statements of cash flow for the period specified.
Officers' Certificates delivered to the Lenders and the Issuing Bank after the
date of this Agreement which certify the truth and accuracy of the
representations (including those set forth in Sections 9.14 and 9.15) shall be
deemed to apply to financial statements which the Company has most recently
delivered to the Lenders and the Issuing Bank as of the time of such
certification.
9.14.2 PROJECTIONS. The operating projections submitted on
behalf of the Company to the Lenders and the Issuing Bank pursuant to Subsection
4.1.18 (Projections) present to the best of the Company's knowledge and belief
based on the assumptions set forth in such projections the expected results of
operations and sources and uses of cash of the Company for the periods covered
by the projections.
9.15 CHANGES.
Since December 31, 1998, there has been no Material Adverse
Change. Neither the Company nor any of its Subsidiaries has since December 31,
1998 directly or indirectly declared, ordered, paid, made or set apart any sum
or property for any Restricted Payment or agreed to do so, except (a) prior to
the Closing Date, transactions permitted under the Existing Facilities, and (b)
after the Closing Date, transactions permitted by this Agreement.
9.16 TAX RETURNS AND PAYMENTS.
All tax returns required by law to be filed (including
extensions) by or in respect of each of SPC, the ESOP, the Company and the
Company's Subsidiaries have been filed and all taxes, assessments and other
governmental charges levied upon them and any of their respective properties,
assets, income or franchises which are due and payable have been paid, other
than those presently payable without penalty or interest. The Company knows of
no unpaid assessment for additional federal or state income or business and
occupation taxes for any period or any basis for any such assessment for which
adequate provision has not been made in its accounts or in the balance sheets
referred to in Section 9.14 (Financial Statements and Projections).
9.17 INDEBTEDNESS.
Schedule 9.17 correctly describes all secured and unsecured
Indebtedness of the Company and each of its Subsidiaries outstanding or for
which any such Person has commitments. The Company and its Subsidiaries are not
in default beyond any applicable grace period with respect to any Indebtedness
or any instrument or agreement relating to such Indebtedness. No instrument or
agreement relating to any Indebtedness and no instrument or agreement applicable
to or binding on the Company or any of its Subsidiaries contains any
restrictions on the incurrence by the Company or any Subsidiary of the Company
of additional Indebtedness, except the Loan Documents and the Senior
Subordinated Indenture.
- 82 -
92
9.18 FEDERAL RESERVE REGULATIONS.
No Indebtedness that is required to be, or will be, reduced or
retired from the proceeds of the Loans was incurred for the purpose of
purchasing or carrying any "margin stock" within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System (12 C.F.R. 221, as
amended), and neither the Company nor any of its Subsidiaries owns or has any
present intention to acquire any such margin stock.
9.19 INVESTMENT COMPANY ACT.
None of SPC, the Company or any of the Company's Subsidiaries
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
9.20 PUBLIC UTILITY HOLDING COMPANY ACT.
None of SPC, the Company or any Subsidiary of the Company is a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935, as amended.
9.21 COMPLIANCE WITH ERISA AND ESOP MATTERS.
9.21.1 PLANS. None of SPC, the Company, any of the Company's
Subsidiaries or any ERISA Affiliate maintains or contributes to any Plan or
other pension or similar employee benefit plan, except as disclosed in Schedule
9.21.
9.21.2 FAVORABLE DETERMINATION LETTERS. Each Plan as most
recently amended, which is intended to be qualified within the meaning of
Section 401 of the Code (other than the ESOP, as to which SPC shall apply for a
favorable determination letter), is the subject of a favorable determination by
the Internal Revenue Service with respect to its qualification under Section 401
of the Code.
9.21.3 COMPLIANCE WITH LAW. The Company, its Subsidiaries and
their respective ERISA Affiliates have operated each Plan in all material
respects in compliance with the requirements of the Code and ERISA and the terms
of each Plan.
9.21.4 ABSENCE OF CERTAIN CONDITIONS. Except as specifically
disclosed in Schedule 9.21: (1) no Plan has engaged in any transaction in
connection with which SPC, the Company or any of the Company's Subsidiaries
could be subject to either a material civil penalty assessed pursuant to Section
502(i) of ERISA or a material tax penalty imposed pursuant to Section 4975 of
the Code, (2) there is no Accumulated Funding Deficiency with respect to any
Employee Pension Plan, whether or not waived, or an unfulfilled obligation to
contribute to any
- 83 -
93
Multiemployer Plan or withdrawal from any Multiemployer Plan, (3) no Employee
Pension Plan has been terminated under conditions which resulted or could result
in any material liability to the PBGC, (4) no material liability to the PBGC has
been or is expected by the Company to be incurred with respect to any Plan
maintained by SPC, the Company or any of the Company's Subsidiaries or ERISA
Affiliates except for required premium payments to the PBGC, (5) there has been
(a) since January 1, 1995 no Reportable Event with respect to any Employee
Pension Plan (except to the extent that the PBGC has waived such reporting
requirement with respect to any such event), and (b) no event or condition which
presents a material risk of termination of any Employee Pension Plan by the
PBGC, in either case involving conditions which could result in any liability to
the PBGC, (6) none of SPC, the Company and any of the Company's Subsidiaries or
any ERISA Affiliate has incurred or anticipates incurring Withdrawal Liability
with respect to any Multiemployer Plan, (7) no Multiemployer Plan is in
Reorganization, (8) SPC, the Company and the Company's Subsidiaries have
complied in all material respects with the health continuation coverage
requirements of COBRA and the requirements of the Health Insurance Portability
and Accountability Act of 1996, (9) there is no unfunded liability in respect of
any Plan, and (10) there is not now, and has not been, any violation of the Code
or ERISA with respect to the filing of applicable reports, documents, and
notices regarding any Plan with the Secretary of Labor, the Secretary of the
Treasury, the PBGC or any other governmental entity or the furnishing of such
documents to the participants or beneficiaries of such Plan.
9.21.5 ABSENCE OF CERTAIN LIABILITIES. No liability (whether
or not such liability is being litigated) has been asserted against SPC, the
Company, any of the Company's Subsidiaries or any ERISA Affiliate in connection
with any Employee Pension Plan or any Multiemployer Plan by the PBGC other than
for required premium payments to the PBGC, by a trustee appointed pursuant to
Section 4042(b) or (c) of ERISA, or by a sponsor or an agent of a sponsor of a
Multiemployer Plan, and no lien has been attached and no Person has threatened
to attach a lien on any of SPC's, the Company's, any of the Company's
Subsidiaries' or any ERISA Affiliate's property as a result of failure to comply
with ERISA or as a result of the termination of any Plan.
9.21.6 ESOP VALUATION MATTERS. The ESOP has purchased or will
purchase the shares of stock subject thereto for fair market value as evidenced
by a valuation provided by an independent and nationally-respected third-party
appraiser.
9.21.7 INDEPENDENT REVIEW. The ESOP's purchase of shares, as
described in Subsection 9.21.6 above, was or will be reviewed and approved by an
independent fiduciary of the ESOP.
9.21.8 NO PROHIBITED TRANSACTION. The ESOP loan described in
Section 7.4(b)(i) will be exempt by Section 4975(d)(3) of the Code and by
Section 408(b)(3) of ERISA from the "prohibited transactions" listed in Section
4975(c) of the Code and in Section 406 of ERISA, respectively; and (ii) the
purchase of shares of stock in SPC by the ESOP will be exempt by
- 84 -
94
Section 4975(d)(13) of the Code and by Section 408(e) of ERISA from such
"prohibited transactions".
9.21.9 ESOP LIABILITIES. Under the terms of the ESOP and the
ESOP Sharing Agreement, the Company is not, and will not at any time (by means
of an amendment to the ESOP Plan or otherwise) be, liable for the ESOP
Compensation Expense or ESOP Repurchase Payments related to any Persons that are
not employees of the Company and its Subsidiaries.
9.21.10 ANNUAL CONTRIBUTION TO ESOP. Under the terms of the
ESOP, a participating employer in the ESOP is required to contribute the ESOP
Compensation Expense on an annual basis to the ESOP's trust fund.
9.21.11 FAILURE TO PAY ESOP COMPENSATION EXPENSE. Under the
terms of the ESOP and the ESOP Loan, if a party other than the Company fails to
contribute its ESOP Compensation Expense, it may result in the ESOP's default on
the ESOP loan, but will not have a Material Adverse Effect on the Company.
9.21.12 FIDUCIARY LIABILITY. Any breach of fiduciary
responsibilities under ERISA by a fiduciary of the ESOP will not have a Material
Adverse Effect on the Company.
9.21.13 QUALIFICATION FOR CODE SECTION 1042 TREATMENT. To the
extent the ESOP's purchase of shares, as described in Subsection 9.21.6 above,
is from outstanding shareholders, the purchase will allow such shareholders to
elect the non-recognition of gain provided in Section 1042 of the Code (provided
such shareholders meet the other requirements of that Section).
9.21.14 DISPOSITION OF CODE SECTION 1042 SHARES. During the
three-year period after the date the ESOP acquires shares from the outstanding
shareholders described in Subsection 9.21.13 above, the ESOP will not dispose of
such shares in any manner that would cause the imposition of an excise tax under
Section 4978 of the Code on SPC or any of its Affiliates.
9.22 ACCURACY AND COMPLETENESS OF DISCLOSURE.
Neither this Agreement nor any other document, certificate or
instrument delivered to the Agent or Lenders by or on behalf of SPC, the Company
or any of the Company's Subsidiaries in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained in this Agreement and in such other documents, certificates or
instruments not misleading in light of the circumstances under which such
statements were made.
9.23 ADEQUACY OF CAPITAL.
- 85 -
95
The proceeds of the Loans, together with the proceeds of
Indebtedness permitted under Section 7.1 (Indebtedness), will be sufficient
until satisfaction in full of the Loans to enable the Company and its
Subsidiaries to operate their respective businesses as currently contemplated by
the Company.
9.24 ABSENCE OF RESTRICTIVE PROVISIONS.
Other than this Agreement and the Senior Subordinated
Indenture, none of SPC, the Company or any of the Company's Subsidiaries is
subject or party to any agreement, lien or encumbrance, charter or bylaw,
regulatory, or other provision (except for applicable statutory corporate law),
restricting, directly or indirectly, (a) the payment of dividends by a
Subsidiary of the Company or the making of advances or other cash payments by
any Subsidiary to the Company, or (b) the ability of SPC, the Company or any of
the Company's Subsidiaries to create, incur, assume or permit to exist any Lien
on or with respect to any property or asset (including, without limitation, any
document or instrument in respect of goods or accounts receivable) of SPC, the
Company or any of the Company's Subsidiaries, provided that the representation
as to SPC in this clause (b) applies only with respect to SPC's ownership
interest in the Company.
9.25 ENVIRONMENTAL COMPLIANCE.
9.25.1 Except as set forth on Schedule 9.25, none of the real
property owned and/or occupied by the Company or any of its Subsidiaries has to
the knowledge of the Company ever been used by previous owners and/or operators
or ever been used by the Company or any of its Subsidiaries to treat, produce,
store, handle, transfer, process, transport, dispose or otherwise Release any
Hazardous Substances in violation of any Environmental Law;
9.25.2 Except as set forth on Schedule 9.25, to the knowledge
of the Company and its Subsidiaries, there is no condition which exists on the
real property owned and/or occupied by the Company or any of its Subsidiaries
which requires Remedial Action;
9.25.3 Neither the Company nor any of its Subsidiaries has
been notified of, or has actual knowledge of any notification having been filed
with regard to, a Release on or into any real property owned and/or occupied by
the Company or any of its Subsidiaries;
9.25.4 Neither the Company nor any of its Subsidiaries has
received a summons, citation, notice of violation, administrative order,
directive, letter or other communication, written or oral, from any governmental
or quasi-governmental authority concerning any intentional or unintentional
action or omission related to the generation, storage, transportation, handling,
transfer, disposal or treatment of Hazardous Substances in violation of any
Environmental Law;
9.25.5 There are no "friable" (as that term is defined in
regulations under the Federal Clean Air Act) asbestos or asbestos-containing
materials which have not been
- 86 -
96
encapsulated in accordance with accepted guidelines promulgated by the United
States Environmental Protection Agency existing in any real property owned
and/or occupied by the Company or any of its Subsidiaries;
9.25.6 No equipment containing polychlorinated biphenyls,
including electrical transformers, are located on any real property occupied by
the Company or any of its Subsidiaries in levels which exceed those permitted by
any and all governmental authorities with jurisdiction over such premises and
which are not properly labeled in accordance with requisite standards; and
9.25.7 Except as set forth on Schedule 9.25, to the knowledge
of the Company there are no tanks on any real property owned and/or occupied by
the Company or any of its Subsidiaries that have been used for the storage of
petroleum products or any other substance, nor, except as to sites set forth on
Schedule 9.25, have any such tanks been located on such property at any time in
which a Release in violation of any Environmental Laws has occurred.
9.25.8 Each of the tanks referred to on Schedule 9.25 have
been registered and tested to the extent required by, and in accordance with,
any applicable Environmental Laws and there is no evidence of leakage from any
such tanks. All tanks that have been removed or abandoned have been closed in
accordance with applicable standards under Environmental Laws.
9.26 SOLVENCY.
The Company and each of its Subsidiaries is Solvent and will
be Solvent after giving effect to the Restricted Payment contemplated by
paragraph (b) of Section 7.4 (Restricted Payments).
9.27 SUBORDINATION.
All of the obligations under the Senior Subordinated Indenture
and Senior Subordinated Notes (if any) are subordinated and junior in right of
payment to all of the Senior Secured Obligations. The Senior Secured Obligations
constitute "Designated Senior Indebtedness" within the meaning of the Senior
Subordinated Indenture. Each of the Subordination Agreements is in full force
and effect and the subordinated obligations referred to therein are subordinated
and junior in right of payment to all of the Senior Secured Obligations.
9.28 YEAR 2000 COMPLIANCE.
(a) The Company and each of its Subsidiaries have
reviewed the areas within their businesses and operations which could be
adversely affected by a "Year 2000 Problem" (i.e. the risk that applications
used by them or on which they rely may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999) and have developed or are developing a program to
address on a
- 87 -
97
timely basis any such Year 2000 Problem. Based upon such review, the Company and
each Subsidiary reasonably believe that the Year 2000 Problem will not have any
Material Adverse Effect.
(b) In addition to the steps taken as described in
paragraph (a) above, the Company has identified relationships with third
parties, including vendors, suppliers and service providers, which the Company
believes are critical to its business operations. The Company is in the process
of communicating with these third parties to determine the extent to which they
are addressing the Year 2000 Problem. The Company will continue to communicate,
assess and monitor the progress of these third parties in resolving the Year
2000 Problem.
ARTICLE 10
DEFINITIONS
10.1 DEFINED TERMS.
As used in this Agreement, the following terms shall have the
meanings specified in this Section unless the context otherwise requires.
Defined terms in this Agreement shall also mean in the singular number the
plural and in the plural the singular.
- Accumulated Funding Deficiency: any accumulated funding
deficiency as defined in Section 302(a) of ERISA.
- Acquisition: the meaning specified in Subsection 7.3.3
(Acquisitions).
- Actual EBITDA: the sum of (i) the Consolidated Net Income of
the Company and its Subsidiaries for a specified period, plus (ii) the sum of
the following to the extent deducted in such computation of such Consolidated
Net Income:
(a) depreciation expense;
(b) amortization expense;
(c) Interest Expense;
(d) income tax provision;
(e) ESOP Retirement Plan Expenses; and
(f) minority interests in Subsidiaries of the
Company, less interest income.
- 88 -
98
- Adjusted LIBOR: the meaning specified in Subsection 1.8.5.
- Adverse Event: the meaning specified in Subsection 8.1.11
(FCC Licenses and Other Franchises).
- Affected Lender: the meaning specified in Subsection 11.5.6.
- Affiliate: with reference to any Person, a spouse of such
Person, any relative (by blood, adoption or marriage) of such Person within the
third degree, any director, officer or employee of such Person, any other Person
of which such Person is a partner, member, trustee director, officer or
employee, and any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such Person. For purposes of
this definition "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean (i) the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise
or (ii) the beneficial ownership of 10% or more of the total voting power of the
Voting Stock (on a fully diluted basis) of such Person.
- Agent: the meaning specified in the preamble to this
Agreement.
- Agreement: this Agreement, as amended, modified or
supplemented from time to time.
- Applicable Margin: the meaning specified in Subsection
1.8.2.
- Application Date: the 365th day after the date the Company
or a Subsidiary of the Company receives the Net Proceeds from a disposition of
assets.
- Approved Fund: any investment fund that has been approved by
the Agent and Borrower prior to the Closing Date, it being understood that
receipt of an Assignment and Acceptance from the Agent is one form of conclusive
evidence of such approval.
- Assignment and Acceptance: the meaning specified in
Subsection 11.5.3.
- Available Commitment: the meaning specified in Subsection
1.1.2.
- Base Rate: the higher of (i) the rate of interest publicly
announced by the Agent from time to time at its principal office as its prime
commercial lending rate (which rate is not necessarily the lowest rate charged
by the Agent to its borrowers) and (ii) the Federal Funds Rate plus one-half of
one percent (1/2%).
- 89 -
99
- Basic Subscribers: with respect to any cable television
system, (i) all dwelling units, including separate units within an apartment
building, hotel, motel, condominium, cooperative or similar building, in respect
of which the Company or any Subsidiary of the Company is paid the full monthly
price for basic services offered in such cable television system in accordance
with standard basic rates generally charged by the Company or such Subsidiary in
respect of such cable television system and (ii) all Equivalent Basic
Subscribers in such cable television system.
- BlazeNet: Susquehanna Data Services, Inc. (d/b/a BlazeNet).
- Business Day: a day other than a Saturday, Sunday or day on
which commercial banks are required or permitted to close in Philadelphia,
Pennsylvania, New York, New York or Dallas, Texas.
- Capital Expenditures: expenditures for fixed or capital
assets, including, but not limited to, the purchase, construction or
rehabilitation of equipment or other physical assets or the expansion or
improvement of any cable television system or broadcast radio system or the
addition of capacity or versatility to such a system.
- Capital Lease: a lease with respect to which the lessee is
required to recognize the acquisition of an asset and the incurrence of a
liability in accordance with GAAP.
- Capital Lease Obligation: with respect to any Capital Lease,
the amount of the obligation of the lessee thereunder which would in accordance
with GAAP appear on a balance sheet of such lessee in respect of such Capital
Lease or otherwise be disclosed in a note to such balance sheet.
- CERCLA: the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time to time, and all
rules and regulations promulgated in connection therewith.
- Change of Control: (1) (A) the Permitted Holders cease to be
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, in the aggregate or at least 80% of the total
voting power of the voting stock of the Company or (B) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or
more Permitted Holders, is or becomes the "beneficial owner" (except that for
purposes of this clause (B) such person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 20% of the total voting power of the voting
stock of the Company (for purposes of this clause (1) the Permitted Holders
shall be deemed to beneficially own any voting stock of a corporation held by
any other corporation so long as the Permitted Holders beneficially own,
directly or indirectly, in the aggregate at least 80% of the voting power of the
voting stock of such other corporation);
- 90 -
100
(2) The Company merges with or into another Person or
sells or disposes of all or substantially all of its assets to any Person, or
any Person merges with the Company, in any such event pursuant to a transaction
in which the outstanding voting stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding voting stock of the Company is converted
into or exchanged for (i) voting stock (other than Disqualified Stock) of the
surviving or transferee corporation and/or (ii) cash, securities or other
property in an amount which could be paid by the Company as a Restricted Payment
under this Agreement and the Senior Subordinated Indenture and (B) immediately
after such transaction no person or group (other than the Permitted Holders) is
the beneficial owner of 20% or more of the voting power of the voting stock of
the surviving or transferee corporation on a fully diluted basis;
(3) during any period of two consecutive years,
individuals who at the beginning of such period constituted the board of
directors of the Company (together with any new directors whose election by such
board of directors or whose nomination for election by the shareholders of the
Company was approved by a vote of 66 2/3% of the directors of the Company at the
time of such approval who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the board of directors then in
office; or
(4) the liquidation or dissolution of the Company.
- Closing Date: the meaning specified in Section 4.1.
- COBRA: the group health plan continuation coverage
requirements of Section 4980B of the Code and Part 6 of Subtitle B of the Title
I of ERISA.
- Code: the Internal Revenue Code of 1986, as amended, or its
predecessor or successor, as applicable, and any Treasury regulations, revenue
rulings or technical information releases issued thereunder.
- Collateral: all property of any sort in which the Company or
any Subsidiary of the Company has granted, or purported to grant, a security
interest or other Lien pursuant to any of the Loan Documents.
- Commitment: the commitment of the Lenders to make advances
under this Agreement.
- Commitment Fee: the meaning specified in Subsection 1.7.1.
- Commitment Fee Base: the meaning specified in Subsection
1.7.1.
- 91 -
101
- Company: Susquehanna Media Co., a Delaware corporation.
- Company Pledge: the meaning specified in paragraph (b) of
Subsection 4.1.5.
- Company Required Payment: the meaning specified in Section
2.3.
- Consolidated: with respect to any Person and any specified
Subsidiaries, refers to the consolidation of financial statements of such Person
and such Subsidiaries and of particular items in such financial statements in
accordance with GAAP.
Consolidated Net Worth: means the total of the amounts shown
on the balance sheet of the Company and its Consolidated Subsidiaries, as of the
end of the most recent fiscal quarter of the Company ending at least 45 days
prior to the taking of any action for the purpose of which the determination is
being made, as:
(1) the par or stated value of all outstanding
capital stock of the Company, plus
(2) paid-in capital or capital surplus relating to
such capital stock, plus
(3) any retained earnings or earned surplus less (A)
any accumulated deficit and (B) any amounts attributable to Disqualified Stock.
Consolidated Principal Payments: with respect to any past
period, the aggregate amount of scheduled or required payments or prepayments of
principal due on, or with respect to, Consolidated Indebtedness of the Company
and its Subsidiaries for such period.
- Consolidated Senior Leverage Ratio: The ratio, as
applicable, of
(i) Senior Debt, as at the last day of each fiscal
quarter, to EBITDA for the four fiscal quarters ended on such
date or
(ii) Senior Debt, as at the day Indebtedness is
incurred after giving effect to such Indebtedness (or as at
the day another specified transaction occurs after giving
effect to such transactions), to EBITDA for the four fiscal
quarters ended on, or most recently prior to, such date.
- 92 -
102
- Consolidated Total Leverage Ratio: the ratio, as applicable,
of
(i) Total Debt, as at the last day of each fiscal
quarter to EBITDA for the four fiscal quarters ended on such
date, or
(ii) Total Debt as at the day Indebtedness is
incurred, after giving effect to such Indebtedness (or as at
the day another specified transaction occurs after giving
effect to such transactions), to EBITDA for the four fiscal
quarters ended on, or most recently prior to, such date.
- Debt Service Coverage Ratio: as at any date of
determination, the ratio of (i) EBITDA for the four fiscal quarters ended on, or
most recently prior to, such date of determination, to (ii) the sum of the
Projected Principal Payments (adjusted in 1999 to exclude principal payments on
the Existing Facilities) and Projected Interest Expense, in each case for the
four fiscal quarters immediately succeeding such date.
- Default Rate: the meaning specified in Subsection 1.8.8.
Disqualified Stock: means, with respect to any Person, any
capital stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable):
(1) matures or is mandatorily redeemable for any
reason,
(2) is convertible or exchangeable for Indebtedness
or Disqualified Stock, or
(3) is redeemable at the option of the holder
thereof, in whole or in part, in each case on or prior to the first anniversary
of the stated maturity of the Notes.
- EBITDA: Actual EBITDA, adjusted, if any Acquisition or
disposition is effected in accordance with the terms of this Agreement, as
follows:
(x) to include the net income (or net loss)
of any other Person (with adjustments for various
costs of such Person (such as executive salaries and
corporate overhead) that the Board of Directors of
the Company in good faith determines are appropriate
based on the structure and operation of such Person
as compared to the manner in which the Company and
its Subsidiaries are structured and operated) accrued
from the beginning of the period for which Net Income
is being measured to the date such other Person
became a Subsidiary of the Company, or to the date it
merged into or consolidated with the Company or a
Subsidiary of the Company, or to the date all or
substantially all of its assets were acquired by a
Subsidiary of the
- 93 -
103
Company; however, such net income (or net loss)
shall, at the option of the Company, not be included
if the business plan of such Person is being
materially modified by the Company or a Subsidiary of
the Company,
(y) to exclude net income (or net loss) of
any Subsidiary of the Company accrued from the
beginning of such period to the date it ceases to be
a Subsidiary of the Company or to the date it merged
into or consolidated with any other Person (other
than the Company or a Subsidiary of the Company), or
to the date substantially all of its assets were
sold, and
(z) to exclude net income (or net loss) of
any station or cable system which is subject to any
local marketing agreement or time brokerage agreement
entered into in connection with any disposition
permitted under Subsection 7.7.2(b) or (c) except to
the extent that such net income is received in cash.
- Eligible Assignee:
(i) a Lender;
(ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of
the United States, or any State thereof, and having a combined
capital and surplus of at least $1,000,000,000.00;
(iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State
thereof, and having a combined capital and surplus of at least
$1,000,000,000.00;
(v) a commercial bank organized under the laws of any
other country that is a member of the Organization for
Economic Cooperation and Development (the OECD) or has
concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to
Borrow or under the laws of a political subdivision of any
such country, and having a combined capital and surplus of at
least $1,000,000,000.00, so long as such bank is acting
through a branch or agency located in the United States;
(vi) a finance company, insurance company or other
financial institution or Fund (whether a corporation,
partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the
ordinary course of its business and having a
- 94 -
104
combined capital and surplus or total assets of at least
$250,000,000.00 or any Approved Fund; and
(vii) with respect to any Lender that is a Fund, any
other Person that is in the same Family of Funds;
provided, however, that neither SPC, the Company, any Subsidiary of the Company
nor any Affiliate of the foregoing shall qualify as an Eligible Assignee under
this definition and provided, further, that Funds described above shall be
Eligible Assignees only for Term A Loans or Term B Loans.
- Employee Pension Plan: any Plan which (1) is maintained by
the Company, any of its Subsidiaries or any ERISA Affiliate and (2) is subject
to Part 3 of Subtitle B of Title I of ERISA.
- Environmental Laws: any national, state or local law or
regulation (including, without limitation, CERCLA and RCRA) enacted in
connection with or relating to the protection or regulation of the environment,
including, without limitation, those laws, statutes, and regulations regulating
the disposal, removal, production, storing, refining, handling, transferring,
processing, or transporting of Hazardous Substances, and any regulations issued
or promulgated in connection with such statutes by any governmental authority
and any orders, decrees or judgments issued by any court of competent
jurisdiction in connection with any of the foregoing.
- Equivalent Basic Subscribers: with respect to each
subscriber (such as a hotel, a motel, a condominium, an apartment, a cooperative
and any other similar development) that purchases bulk basic subscription
services offered in a cable television system of the Company or any Subsidiary
of Company, the number of subscribers obtained by dividing the monthly basic
revenues of the Company or such Subsidiary from such bulk subscriber's account
by the average monthly basic subscription price for individual Basic Subscribers
in such cable television system.
- ERISA: the Employee Retirement Income Security Act of 1974,
as amended, and any regulations issued thereunder by the Department of Labor or
PBGC.
- ERISA Affiliate: (i) any corporation included with the
Company in a controlled group of corporations within the meaning of Section
414(b) of the Code, (ii) any trade or business (whether or not incorporated)
which is under common control with the Company within the meaning of Section
414(c) of the Code, and (iii) any member of an affiliated service group of which
the Company is a member within the meaning of Section 414(m) of the Code.
- ESOP: the meaning specified in Subsection 4.1.14 (Creation
of ESOP).
ESOP Compensation Expense: the expense related to funding
share allocations in the ESOP.
- 95 -
105
ESOP Loan: the meaning specified in Section 7.4(b) (Restricted
Payments/ESOP Loan) above.
- ESOP Retirement Plan Expenses: the sum of the following:
(i) the amount of ESOP Compensation Expense paid in
cash to the extent that such amount is no greater than the
amount of cash received by the Company from SPC within two (2)
business days of any such payment as repayment of principal
and interest on the ESOP Loan; and
(ii) the amount of ESOP Compensation Expense not paid
in cash.
ESOP Repurchase Payments: the expense related to
repurchase of shares allocated to individuals participating in the ESOP, whether
upon the retirement of such Persons or otherwise.
ESOP Sharing Agreement: the meaning specified in
Subsection 4.1.11 (ESOP Sharing Agreement).
- Eurodollar Business Day: a day on which the relevant London
international financial markets are open for the transaction of business
contemplated in this Agreement and which is also other than a Saturday, Sunday
or other day on which commercial banks are required or permitted to close in
Philadelphia, Pennsylvania, New York, New York or Dallas, Texas.
- Event of Default: the meaning specified in Section 8.1.
- Excluded Transactions: (1) Agreements in existence on or
prior to the Closing Date, (2) the ESOP Loan, (3) payments of Management Fees
permitted hereunder, (4) payments provided for by the Tax Sharing Agreement, (5)
SPC Reimbursement Expenses and (6) ESOP Compensation Expenses and ESOP
Repurchase Payments made in conformity with the ESOP Sharing Agreement.
- Existing Facilities: the meaning specified in Subsection
4.1.8.
- Family of Funds: a group of Funds that invests in bank loans
and is managed by a common investment advisor or an affiliate thereof or has a
common principal underwriter and that has a common individual who is designated
to receive financial statements, waivers and amendments and other notices under
this Agreement.
- FCC: the Federal Communications Commission or any
governmental body succeeding to the functions of such commission.
- 96 -
106
- FCC License: any radio, microwave, or other communications
license, permit, certificate of compliance, franchise, approval or authorization
granted or issued by the FCC for control, ownership, acquisition, construction
or operation of a Permitted Business.
- Federal Funds Rate: for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next Business Day as
so published on the next succeeding Business Day, and (b) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate charged to Agent on such day on such transactions as determined by the
Agent.
- Final Order: an action by the FCC, any PUC, court or other
governmental authority or other applicable state regulatory agency as to which:
(i) no request for stay of the action is pending, no such stay is in effect,
and, if any deadline for filing any such request is designated by statute or
regulation, it has passed; (ii) no petition for rehearing or reconsideration or
application for review or appeal of the action is pending and the time for
filing any such petition or application has passed; (iii) the FCC, any PUC,
court or other governmental authority or other state agency, as applicable, does
not have the action under reconsideration on its own motion and the time for
such reconsideration has passed; and (iv) no appeal to a court, or request for
stay by a court, of the action is pending or in effect, and, if any deadline for
filing any such appeal or request is designated by statute or rule, it has
passed.
- Financial Information: the meaning specified in Section 5.5.
- Fixed Charge Coverage Ratio: as of any date of
determination, the ratio of
(i) Actual EBITDA for the four fiscal quarters ended
on, or most recently prior to the date of determination to
(ii) the sum of
(a) Consolidated Principal Payments
(adjusted in 1999 to exclude principal
payments in respect of the Existing
Facilities and the senior notes which were
issued pursuant to a certain Note Purchase
Agreement on a pari passu basis with the
Existing Facilities),
(b) Interest Expense net of interest income,
- 97 -
107
(c) Capital Expenditures (which shall not
include Acquisitions but shall include
Capital Expenditures associated with
Acquisitions after the date of the
Acquisition),
(d) Restricted Payments (other than the
Restricted Payments relating to intercompany
payments referred to in clause (a) of
Section 7.4 (Restricted Payments) or
Restricted Payments relating to the ESOP
referred to in clause (b) of Section 7.4 ),
and
(e) cash taxes paid,
in each case made or incurred during the four (4) fiscal quarters ended on, or
most recently prior to, such date of determination.
- Franchise: a franchise, permit or license (including,
without limitation, an FCC License), designation or certificate granted by the
United States or any other country, territory or state or a city, town, county
or other municipality, PUC or any other regulatory authority pursuant to which a
Person has the right to own, control, acquire, construct or operate a Permitted
Business.
- Fronting Fees: the meaning specified in Subsection 3.1.5.
- Fund: an "investment company" within the meaning of Section
3(a)(1) of the Investment Company Act of 1940; notwithstanding any exemption
provided by that Act or any rules promulgated thereunder.
- GAAP: generally accepted accounting principles consistently
applied, which, as applied to the Company and its Subsidiaries shall be
consistent with those applied in the preparation of the financial statements
referred to in Subsection 4.1.18 (Financial Statements and Projections).
- Guaranty: as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another Person, including,
but not limited to, any such obligation directly or indirectly guaranteed,
endorsed (otherwise than for collection or deposit in the ordinary course of
business) or discounted or sold with recourse by such Person, or in respect of
which such Person is otherwise directly or indirectly liable, including, but not
limited to, any such obligation in effect guaranteed by such Person through any
agreement (contingent or otherwise) to purchase, repurchase or otherwise acquire
such obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain the solvency or
any balance sheet or other financial condition of the obligor of such
obligation, or to make payment for any products, materials or supplies or for
any transportation or services regardless of the non-delivery or nonfurnishing
- 98 -
108
thereof, in any such case if the purpose or intent of such agreement is to
provide assurance that such obligation will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected against loss in respect thereof. No Guaranty shall
be permitted by this Agreement unless the maximum dollar amount of the
obligation being guaranteed is readily ascertainable by the terms of such
obligation or the agreement or instrument evidencing such Guaranty specifically
limits the dollar amount of the maximum exposure of the guarantor thereunder,
and the amount involved in any Guaranty made during any period shall be the
aggregate amount of the obligation guaranteed (or such lesser amount as to which
the maximum exposure of the guarantor shall have been specifically limited),
less any amount by which the guarantor may have been discharged with respect
thereto (including any discharge by way of a reduction in the amount of the
obligation guaranteed).
- Guarantor: each direct and indirect Subsidiary of the
Company and each other Person that may become a guarantor under the Subsidiary
Suretyship from time to time.
- Hazardous Substances: any and all pollutants, contaminants,
toxic or hazardous wastes or any other substances that might pose a hazard to
health or safety, the removal of which may be required or the generation,
manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage
or filtration of which is or shall be restricted, prohibited or penalized by any
Environmental Law (including, without limitation, petroleum products, asbestos,
urea formaldehyde foam insulation and polychlorinated biphenyls and substances
defined as Hazardous Substances under CERCLA).
- Homes Passed: dwelling units, including separate units
within an apartment building, hotel, motel, condominium, cooperative, or similar
building passed by an operational portion of a cable television system of the
Company or any Subsidiary of the Company.
- Indebtedness: with respect to any Person (without
duplication):
(a) all indebtedness of such Person for
borrowed money;
(b) all obligations of such Person for the
deferred purchase price of capital assets or for any
part of the deferred purchase price of other property
or services which purchase price for other property
or services is due more than six months (or a longer
period of up to one year, if such terms are available
from suppliers in the ordinary course of business)
from the date of incurrence of the obligation in
respect thereof;
(c) all obligations of such Person evidenced
by notes, bonds (other than performance bonds),
debentures or other similar instruments;
- 99 -
109
(d) all indebtedness created or arising
under any conditional sale or other title retention
agreement with respect to property acquired by such
Person (even though the rights and remedies of the
seller or lender under such agreement in the event of
default are limited to repossession or sale of such
property) and all other indebtedness secured by a
Lien on the property or assets of such Person;
(e) all Capital Lease Obligations of such
Person;
(f) all obligations, contingent or
otherwise, of such Person under acceptance, letter of
credit or similar facilities;
(g) all obligations in respect of
Disqualified Stock or other obligations of such
Person to purchase, redeem, retire, defease or
otherwise acquire for value any capital stock of such
Person or any warrants, rights or options to acquire
such capital stock, which obligations shall be
valued, in the case of redeemable preferred stock, at
the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid
dividends and, in the case of other such obligations,
at the amount that, in light of all the facts and
circumstances existing at the time of determination,
can reasonably be expected to become payable;
(h) a Guaranty of such Person, provided that
a Guaranty shall not be considered Indebtedness if
the underlying obligation that is guaranteed is taken
into account in computing Consolidated Net Income of
the Company and its Subsidiaries (e.g., operating
leases of Subsidiaries guaranteed by the Company or
another Subsidiary);
(i) all Indebtedness referred to in clauses
(a) through (g) above secured by (or which the holder
of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien
on property (including, without limitation, accounts
and contract rights) owned by such Person, even
though such Person has not assumed or become liable
for the payment of such Indebtedness;
(j) all unfunded pension liabilities;
(k) all payments required by such Person
under non-compete agreements; and
(l) all obligations of such Person that are
the functional equivalent of the Indebtedness
referred to in clauses (a) through (d) such as
synthetic lease obligations.
- 100 -
110
- Indemnitees: the meaning specified in Section 11.15.
- Interest Coverage Ratio: as at any date of determination,
the ratio of (i) EBITDA for the four fiscal quarters on, or most recently prior
to, such date of determination, to (ii) Projected Interest Expense for the four
fiscal quarters immediately succeeding such date of determination.
- Interest Expense: for any period, the sum of (a) the amount
of interest accrued on, or with respect to, Consolidated Indebtedness for such
period, including without limitation imputed interest on Capitalized Leases and
imputed or accreted interest in respect of deep discount or zero coupon
obligations, plus (b) the net amount payable under all Interest Rate Protection
Agreements in respect of such period (or minus the net amount receivable under
Interest Rate Protection Agreements in respect of such period). For purposes of
calculating Interest Expense, it shall be assumed that any Guaranties
constituting Indebtedness will require payments of interest, if any, in the
amounts as called for in the underlying obligation which is the subject of the
Guaranty.
- Interest Period: the meaning specified in paragraph (a) of
Subsection 1.8.4.
- Interest Rate Protection Agreement: an interest rate swap,
cap or collar agreement or similar arrangement between any Person and a
financial institution providing for the transfer or mitigation of interest risks
either generally or under specific contingencies.
- Investment: as applied to any Person, any direct or indirect
purchase or other acquisition by such Person of stock or other securities of any
other Person, or any direct or indirect loan, advance (other than advances to
employees for moving and travel expenses in amounts which are immaterial both
individually and in the aggregate), or capital contribution by such Person to
any other Person, including all Indebtedness and accounts receivable from such
other Person which are not current assets or did not arise from sales to such
other Person in the ordinary course of business. For purposes of this Agreement,
as applied to the Company or any Subsidiary thereof, an Investment shall include
any purchase of a minority interest in any Subsidiary of the Company regardless
of how that purchase is structured including, without limitation, a repurchase
or redemption of shares that is expressly excluded from the definition of
"Restricted Payment".
- Issuing Bank: First Union so long as it is a Lender, or if
First Union is no longer a Lender, a Lender designated by the Company and
acceptable to the Agent.
- Lenders: each of the Persons that execute this Agreement as
a Lender (including, without limitation, the Swing Lender) together with any
other Persons which become parties to this Agreement as a Lender from time to
time.
- 101 -
111
- Lender's Interest: the meaning specified in the last
paragraph of Section 5.5.
- Lender Required Payment: the meaning specified in Section
2.2.
- Xxxxxxx: Xxxxxxx Communications, Inc. and Xxxxxxx York,
Inc., each a Delaware corporation.
- Xxxxxxx Agreement: an agreement dated November 6, 1992 by
and among Xxxxxxx, Susquehanna Cable and certain Subsidiaries of Susquehanna
Cable as amended by a Modification Agreement dated as of March 24, 1993, a
letter dated March 31, 1993, a Third Amendment dated May 17, 1993, a Fourth
Amendment dated November 30, 1993 and a Fifth Amendment dated April 22, 1999,
and as may be further amended, from time to time, by such amendments as shall
have been approved by the Requisite Lenders or such other amendments as are
permitted by the terms of this Agreement. The term "Xxxxxxx Agreement" shall
also include the shareholders agreement entered into pursuant to section 8(g) of
the Xxxxxxx Agreement, provided that references in the Loan Documents to
particular paragraphs or sections of the Xxxxxxx Agreement shall not be
references to paragraphs and sections of such shareholders agreement.
- Xxxxxxx Note: the meaning specified in Section 7.1(f).
- Xxxxxxx Pledge: the meaning specified in paragraph (e) of
Subsection 4.1.5.
- Xxxxxxx Programming Payments: payments made by Susquehanna
Cable and its Subsidiaries to Xxxxxxx to purchase cable television programming
pursuant to the first sentence of Section 18 of the Xxxxxxx Agreement as in
effect on May 28, 1993.
- Xxxxxxx Put: the meaning specified in Section 7.1(f).
- Xxxxxxx Subordination Agreement: the meaning specified in
paragraph (c) of Section 4.1.6.
- Letters of Credit: letters of credit issued pursuant to this
Agreement.
- Letter of Credit Fees: the meaning specified in Subsection
3.1.5.
- Letter of Credit Sublimit: the meaning specified in Section
3.1.1.
- Lien: as to any Person, any mortgage, lien, pledge, adverse
claim, charge, security interest or other encumbrance in or on, or any interest
or title of any vendor, lessor, lender or other Senior Secured Party to or of
such Person under any conditional sale or other title retention agreement or
Capital Lease with respect to, any property or asset of such Person.
- 102 -
112
- Loans: the amounts loaned to the Company pursuant to this
Agreement. Loans may be Revolving Loans, Swing Loans or Term Loans.
- Loan Documents: this Agreement, the Notes, the Subsidiary
Suretyship, the Pledge Agreements, the Subordination Agreements, the Security
Agreement and any and all agreements, documents and instruments executed,
delivered or filed pursuant to this Agreement, as the same may be amended,
modified or supplemented from time to time; in addition, solely for purposes of
the references to "Loan Documents" in the Subsidiary Suretyship, Subordination
Agreements, Security Agreement, the Trademark Collateral Agreement and Pledge
Agreements (or any other Loan Document to the extent necessary to afford the
obligations under the documents referred to below the status of being guaranteed
and secured pari passu with the other obligations hereunder), the term "Loan
Document" shall also be deemed to include Interest Rate Protection Agreements
which have been entered into in compliance with Section 7.32 (Interest Rate
Protection Agreements) in favor of one or more Lenders or their Affiliates and
all agreements, instruments and other documents relating to Letters of Credit.
- Management Agreement: the meaning specified in Section
4.1.10.
- Management Fees: for any period, all fees and other amounts
payable to SPC under the Management Agreement (including, without limitation,
fees due, amounts accrued, and overhead and administrative costs allocated by
SPC to the Company or any Subsidiary of the Company), but not SPC Expense
Reimbursement.
- Material Assets: Inventory, accounts receivable, equipment,
investment property, instruments (other than the note in respect of the ESOP
Loan) and general intangibles as defined in the Uniform Commercial Code,
provided, however, it is acknowledged that certain franchises and other rights
may not be able to be effectively pledged without third-party consent and the
Company and its Subsidiaries will not be required to seek or obtain such
third-party consent except in those cases specifically requested by the Agent.
Further, the Company and its Subsidiaries will not be required to file fixture
financing statements if it is burdensome for such entities to ascertain the
correct property descriptions.
- Material Adverse Change: either (a) any material adverse
change in the business, condition (financial or otherwise), operations or
properties of (i) the Company and its Subsidiaries taken as a whole, (ii)
Susquehanna Cable and its Subsidiaries taken as a whole, or (iii) Susquehanna
Radio and its Subsidiaries taken as a whole or (b) any material adverse change
in the business, condition (financial or otherwise), operations, properties or
prospects of the Company or any of its Subsidiaries, individually, if such
change could result in the insolvency or dissolution of such Person or in the
loss of control (by the current holder thereof) over such Person's assets.
- Material Adverse Effect: any material adverse effect on:
- 103 -
113
(a) the business, condition (financial or otherwise),
operations or properties of (i) the Company and its
Subsidiaries taken as a whole, (ii) Susquehanna Cable and its
Subsidiaries taken as a whole, (iii) Susquehanna Radio and its
Subsidiaries taken as a whole, or (iv) the Company or any of
its Subsidiaries, individually, if such material adverse
effect on the business (financial or otherwise), operations,
or properties of the Company or any of its Subsidiaries
individually, could result in the insolvency or dissolution of
such Person or in the loss of control (by the current holder
thereof) over such Person's assets,
(b) the ability of SPC, the Company or any of the
Company's Subsidiaries to perform their respective obligations
under the Loan Documents,
(c) the binding nature, validity or enforceability of
any of the Loan Documents as an obligation of SPC, the Company
or the Company's Subsidiaries to the extent they are parties
to such documents, or
(d) the validity, perfection, priority or
enforceability of the Liens granted to Agent for the benefit
of the Issuing Bank, the Lenders and other Senior Secured
Parties in respect of the property of SPC, the Company and the
Company's Subsidiaries.
- Maturity Date: the latest of the Revolver Maturity Date, the
Term A Maturity Date and the Term B Maturity Date.
- Month: shall mean a period from and including a given day in
a calendar month to the day in the subsequent calendar month numerically
corresponding to such given day except that (a) if there is no numerical
correspondent in such subsequent calendar month, or (b) if such given day is the
last day of a calendar month, such day shall be the last day of such subsequent
calendar month.
- Multiemployer Plan: means a multiemployer pension plan as
defined in Section 3(37) of ERISA to which Company, any of its Subsidiaries or
any ERISA Affiliate is or has been required to contribute subsequent to
September 25, 1980.
- Net Income: means, for any period, the aggregate net income
(or loss) of the Company and its Subsidiaries for such period on a consolidated
basis, provided, the following items shall be excluded from the calculation of
Net Income:
(1) after-tax gains and losses from asset sales or
abandonment or reserves relating thereto;
(2) items classified as extraordinary, nonrecurring
or unusual gains, losses or charges, and the related tax effects, each
determined in accordance with GAAP;
- 104 -
114
(3) the net income of any Person acquired in a
"pooling of interests" transaction accrued prior to the date it becomes a
Subsidiary of the Company or is merged or consolidated with the Company or any
Subsidiary of the Company;
(4) the net income (but not loss) of any Subsidiary
of the Company to the extent that the declaration of dividends, the making of
intercompany loans or similar payments by that Subsidiary of that income is
restricted by a contract, operation of law or otherwise;
(5) the net income of any Person, other than a
Subsidiary of the Company, except to the extent of cash dividends or
distributions paid to the Company or a Subsidiary of the Company by such Person;
(6) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time after December 31, 1998;
(7) income or loss attributable to discontinued
operations (including operations disposed of during such period whether or not
such operations were classified as discontinued); and
(8) in the case of a successor to the Company by
consolidation or merger or as a transferee of the Company's assets, any earnings
of the successor corporation prior to such consolidation, merger or transfer of
assets.
- Net Proceeds: means, for any sale, lease, transfer or other
disposition of any asset, or for any sale or issuance of any security, by any
Person, the aggregate amount of cash consideration received by such Person for
such asset or security, including cash payments received in respect of a
promissory note issued as part of the original consideration in such
transaction, after deducting therefrom
(a) the amount of such proceeds required to
be applied to repay Indebtedness secured by any asset
so disposed of, other than Indebtedness to the
Lenders under the Loan Documents (including
indebtedness in respect of Interest Rate Protection
Agreements),
(b) reasonable brokerage commissions, legal
fees, finders' fees and other similar fees and
commissions and related expenses incurred by such
Person in connection with such transaction,
(c) taxes payable in connection with or as a
result of such transaction or, if applicable, held in
reserve to pay taxes when due, and
- 105 -
115
(d) other reasonable out-of-pocket costs incurred in
connection therewith by such Person,
in the case of each of clauses (a), (b), (c) and (d) above to the extent, but
only to the extent, that the amounts so deducted are, at the time of receipt of
such cash, paid to a Person that is not an Affiliate of such Person (or, if paid
to such an Affiliate, to the extent the terms of such payment are no more
favorable to such Affiliate than such terms would be in an arm's-length
transaction) and are properly attributable to such transaction or to the asset
or security that is the subject thereof. All Net Proceeds received from sales or
dispositions of assets, payable to Lenders pursuant to this Agreement, shall be
in the form of cash, in U.S.
Dollars.
- Notes: the promissory notes delivered by the Company to the
Lenders (including any successors or assigns thereof) pursuant to this Agreement
(including any amendments, modifications or supplements which may from time to
time, be created in respect of such notes), and any replacement promissory notes
issued in lieu of the foregoing.
- Officers' Compliance Certificate: an Officers' Certificate
in the form of Exhibit Q.
- Officers' Certificate: a certificate executed on behalf of
the Company by its President or one of its Vice Presidents or its Treasurer.
- Other Shareholders: the meaning specified in paragraph (d)
of Subsection 4.1.5.
- Other Shareholders Pledge: the meaning specified in
paragraph (d) of Subsection 4.1.5.
- Paragon: Paragon Research Limited Partnership, a Delaware
limited partnership.
- PBGC: means Pension Benefit Guaranty Corporation, or any
governmental agency or instrumentality succeeding to the functions thereof.
- Permitted Businesses: means owning, operating, managing and
maintaining domestic cable television systems, radio broadcasting stations and
businesses directly related thereto, including marketing research, internet,
telephony and high speed data transmission services.
Permitted Holders: means (1) descendants, and spouses of
descendants, of Xxxxx X. Xxxxxx, Xx. (including any trusts established for the
benefit of one or more such descendants or spouses of such descendants of which
one or more of such descendants or spouses
- 106 -
116
of such descendants are trustees together with officers of SPC or its
Subsidiaries and/or the trust department of a financial institution) and (2) the
ESOP so long as executive officers of SPC constitute the majority of the ESOP
Committee under ESOP.
- Permitted Lien: the meaning specified in Subsection 7.2.1.
- Permitted Uses: (i) an Acquisition permitted under this
Agreement, and (ii) the incurrence of Capital Expenditures in connection with an
Acquisition permitted under this Agreement.
- Person: a corporation, an association, a partnership, an
organization, a Fund, a business, an individual, a government or political
subdivision thereof or a governmental agency.
- Plan: means an "Employee Pension Benefit Plan" (as defined
in Section 3(2) of ERISA) or an "Employee Welfare Benefit Plan" (as defined in
Section 3(3) of ERISA) which is or has been established or maintained, or to
which contributions are or have been made, by SPC, the Company, any of its
Subsidiaries or any ERISA Affiliate (or any predecessor thereof).
- Pledge Agreements: the Xxxxxxx Pledge, the Company Pledge,
the Subsidiary Pledge, the SPC Pledge and the Other Shareholders Pledge,
collectively.
- Potential Event of Default: any condition or event specified
in Article 8 which, with notice or lapse of time or both, would become an Event
of Default.
- Pro Forma Basis: calculation of the financial covenants
specified in Article 6 (Financial Covenants) other than the Fixed Charge
Coverage Ratio in connection with an Acquisition, disposition or other specified
transaction with the following adjustments: (i) EBITDA shall be adjusted in the
manner set forth in the last sentence of such definition to take account of such
Acquisition or disposition or other specified transaction and any other
Acquisition or disposition or other specified transaction which has occurred
during the period to which such calculations relate and (ii) Consolidated
Indebtedness of the Company and its Subsidiaries shall be adjusted to reflect
Indebtedness incurred or paid in connection with such Acquisition, disposition
or other specified transaction and any other Acquisition, disposition or other
specified transaction which has occurred during the relevant period.
- Projected Interest Expense: with respect to any future
period, Interest Expense payable during such period other than interest payable
on the Xxxxxxx Note. For purposes of calculating Projected Interest Expense, it
shall be assumed that (i) the interest rate on the Loans during a period is the
interest rate or rates in effect at the date of determination of Projected
Interest Expense, (ii) all required or mandatory prepayments of principal on
Consolidated Indebtedness are made in accordance with their terms during such
period and no optional prepayments of principal are made in respect of
Consolidated Indebtedness during such period, (iii) any Guaranties constituting
Indebtedness will require payments of principal and interest, if any, in the
amounts as
- 107 -
117
called for in the underlying obligation which is the subject of such Guaranty,
and (iv) in the case of Interest Rate Protection Agreements, the rates of
interest or other basis on which the parties' payment obligations are
determined, as in effect at the beginning of such period, shall remain in effect
throughout such period or if shorter the remaining term of such Interest Rate
Protection Agreement.
- Projected Principal Payments: with respect to any future
period, the aggregate amount of scheduled or required payments or prepayments of
principal due on, or with respect to, Consolidated Indebtedness of the Company
and its Subsidiaries for such period, including, without limitation, the amount
by which the outstanding principal amount of the Revolving Loan, face amount of
Letters of Credit and Unreimbursed Drawings as at the beginning of such period
exceeds the Revolving Credit Commitment as at the end of such period and imputed
principal payments on Capital Leases during such period but excluding principal
payments on the Xxxxxxx Note. For purposes of calculating Consolidated Principal
Payments, it shall be assumed that any Indebtedness constituting Guaranties will
require payments of principal in the amounts as called for in the underlying
obligation which is the subject of such Guaranty.
- PUC: any state or local regulatory agency or body that
exercises jurisdiction over the ownership, construction or operation of
Permitted Businesses.
- PUC Franchise: any Franchise granted or issued by any PUC.
- Quarterly Payment Date: the last Business Day of each March,
June, September and December.
- Radio License Subsidiaries: the Subsidiaries of the Company
whose sole activity is to hold FCC Licenses and grant rights to use such FCC
Licenses to other Subsidiaries of the Company that use such FCC Licenses to
operate their respective radio broadcast businesses.
- RC Lender: each Lender designated as an "RC Lender" on
Schedule 1.1 hereto and each successor and assign thereof.
- RCRA: the Resource Conservation and Recovery Act of 1976, as
amended, and any rules and regulations issued in connection therewith.
- Release: a release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment or into or out of any property, including the
movement of Hazardous Substances through or in the air, soil, surface water,
groundwater or property.
- Regulatory Change: with respect to any Lender, any change or
implementation after the date of this Agreement in United States federal, state
or foreign laws or regulations, including, without limitation, the issuance of
any final regulations or guidelines, or the
- 108 -
118
adoption or making after such date of any interpretations, directives or
requests applying to a class of banks, including any such Lender, of or under
any United States federal or state, or any foreign, laws or regulations (whether
or not having the force of law) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
- Remedial Action: actions necessary to comply with any
Environmental Law with respect to (1) clean up, removal, treatment or handling
Hazardous Substances in the indoor or outdoor environment; (2) prevention of
Releases or threats of Releases or minimization of further Releases of Hazardous
Substances so they do not migrate or endanger or threaten to endanger public
health or welfare or the indoor or outdoor environment; or (3) performance of
pre-remedial studies and investigations and post-remedial monitoring and care.
- Reorganization: any reorganization as defined in Section
4241(a) of ERISA.
- Reportable Event: means, with respect to any Employee
Pension Plan, an event described in Section 4043(c) of ERISA.
- Requisite Lenders: at any time, Lenders having greater than
or equal to Fifty-One percent (51%) of the Total Facility. For purposes of this
definition, "Total Facility" means, collectively, at any time (a) the Revolving
Credit Commitment (whether borrowed or not) and (b) the outstanding principal
amount of the Term Loans, but shall exclude any Revolving Credit Commitment or
Term Loans of Lenders who have forfeited their right to vote under the terms of
this Agreement.
- Reserve Percentage: The meaning specified in Subsection
1.8.5.
- Restricted Payment: (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock or ownership
interest of the Company or any of its Subsidiaries, as the case may be, now or
hereafter outstanding, except a dividend payable solely in shares of stock
(other than Disqualified Stock) of the Company or such Subsidiary, as the case
may be;
(b) any redemption, retirement, purchase or other
acquisition, direct or indirect, of any shares of any class of stock or
ownership interest of the Company or any of its Subsidiaries, as the case may
be, now or hereafter outstanding, or of any warrants, rights or options to
acquire any such shares or interests, except to the extent that the
consideration therefor consists solely of shares of stock (other than
Disqualified Stock) of the Company or such Subsidiary, as the case may be, and
other than purchases of minority interests in the Subsidiaries of the Company
from Persons that hold minority interests in the Company or its Subsidiaries on
the date of this Agreement (it being understood that such purchases are subject
to the provisions of Section 7.3 (Investments, Loans and Acquisitions) above and
other relevant provisions of this Agreement);
- 109 -
119
(c) any sinking fund, other prepayment or installment
payment on account of any shares of stock or ownership interests of the Company
or any of its Subsidiaries, as the case may be;
(d) any other payment, loan or advance to a
shareholder or other equity holder of the Company or of any Subsidiary of the
Company whether in the capacity of such Person as a shareholder or otherwise,
except
(i) Management Fees permitted to be
paid under this Agreement,
(ii) payments under the Tax Sharing
Agreement,
(iii) payments of royalties to the Radio
License Subsidiaries for the right
to use the FCC Licenses held by
them,
(iv) SPC Expense Reimbursement,
(v) Xxxxxxx Programming Payments,
(vi) salaries and other compensation,
the payment of which is not
otherwise restricted under the Loan
Documents, paid in the ordinary
course of business,
(vii) amounts paid to SPC in respect of
ESOP Compensation Expense allocated
to the Company in accordance with
the terms of the ESOP Sharing
Agreement provided, however, that
ESOP Repurchase Payments and other
amounts paid to SPC in respect of
the ESOP shall be deemed to be
Restricted Payments, and
(viii) payments made to purchase minority
interests in Subsidiaries of the
Company in accordance with the
provisions of Section 7.3.2(n)
(Investments) above, other than
payments made in respect of the
Xxxxxxx Note.
(e) any payments to Xxxxxxx under Section 15 of the
Xxxxxxx Agreement as in effect on May 28, 1993 or as subsequently amended and
payments made (whether principal or interest) in respect of the Xxxxxxx Note,
whether or not Xxxxxxx is then a shareholder of any Subsidiary of the Company;
and
- 110 -
120
(f) any forgiveness or release without adequate
consideration by the Company or any Subsidiary of the Company of any
Indebtedness or other obligation owing to the Company or such Subsidiary by a
Person (other than the Company or a Subsidiary) that is a shareholder or other
equity holder of the Company or a Subsidiary or an Affiliate of any such
shareholder or other equity holder.
The amount of the purchase price payable in cash at the time of the exercise of
the Xxxxxxx Put pursuant to clause (n) (vi) (B) of Subsection 7.3.2
(Investments) shall not be deemed to be a Restricted Payment.
- Revolving Credit Commitment: the meaning specified in
Subsection 1.1.1.
- Revolving Loans: the meaning specified in Subsection 1.1.1.
- Revolver Maturity Date: June 30, 2007 or such earlier date
as the Revolving Credit Commitment is terminated hereunder.
- Security Agreement: the meaning specified in Subsection
4.1.3.
- Senior Debt: Total Debt less Indebtedness under the Xxxxxxx
Note, Senior Subordinated Notes and any other unsecured subordinated
Indebtedness that is issued on subordination and other terms acceptable to the
Agent.
- Senior Secured Obligations: shall mean and include any and
all indebtedness, obligations and liabilities of any type or nature, direct or
indirect, absolute or contingent, related or unrelated, due or not due,
liquidated or unliquidated, arising by operation of law or otherwise, now
existing or hereafter arising or created of the Company, and/or any Subsidiary
of the Company, and/or any other Person, to any Senior Secured Party,
represented by or incurred pursuant or relating to the Loan Documents (which,
for this purpose only shall include Interest Rate Hedging Agreements required or
permitted by this Agreement and Letters of Credit issued pursuant to this
Agreement). Without limiting the generality of the foregoing, the term "Senior
Secured Obligations" shall include, without limitation:
(a) principal of, and interest on the Loans and the
Notes (including, without limitation, Swing Loans and Swing Notes);
(b) any and all other fees, indemnities, costs,
obligations and liabilities of the Company, each Subsidiary thereof and each and
every other Loan Party from time to time owing to the Senior Secured Parties;
- 111 -
121
(c) all obligations of the Company owing to any
Issuing Bank or Lender under Letters of Credit or other debt instruments issued
by any Issuing Bank or Lender under the terms of the Loan Agreement;
(d) obligations in respect of Interest Rate
Protection Agreements; and
(e) all amounts (including but not limited to
post-petition interest) in respect of the foregoing that would be payable but
for the fact that the obligations to pay such amounts are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving any Loan Party or any other Person.
- Senior Secured Parties: the Agent (in any capacity
including, without limitation, in its capacity as agent hereunder and as agent
under any other Loan Document), any Issuing Bank, any Lender (in any capacity
including, without limitation, as an issuer of Interest Rate Hedging Agreements
required or permitted under the terms of this Agreement for so long as such
issuer is a Lender hereunder), any Affiliate of a Lender that issues Interest
Rate Hedging Agreements required under the terms of this Agreement, any
Indemnitee, and any successor or assign of the foregoing.
- Senior Subordinated Indenture: the Indenture dated on or
about the date hereof, setting forth the terms of the issuance by the Company of
certain senior subordinated notes due 2009 described in that certain Offering
Memorandum, dated as of April 23, 1999.
- Senior Subordinated Notes: the promissory notes issued
pursuant to the Senior Subordinated Indenture.
- Senior Subordinated Noteholders: the holders of the Senior
Subordinated Notes.
- Shareholder Subordination Agreement: the meaning specified
in paragraph (b) of Subsection 4.1.6.
- Solvent or Solvency: a condition of a Person on a particular
date, whereby on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, but not limited to,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (d) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute an unreasonably small capital. In
computing the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount that, in light
- 112 -
122
of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
- SPC: Susquehanna Pfaltzgraff Co., a Delaware corporation.
- SPC Expense Reimbursement: the meaning specified in
Subsection 7.8.1.
- SPC Pledge: the meaning specified in paragraph (a) of
Subsection 4.1.5.
- SPC Subordination Agreement: the meaning specified in
paragraph (a) of Subsection 4.1.6.
- Subordinated Party: each party (and each other Person that
may, from time to time, become a party) to a Subordination Agreement, other than
the Agent.
- Subordination Agreements: collectively, the SPC
Subordination Agreement, the Shareholder Subordination Agreement and the Xxxxxxx
Subordination Agreement and any other subordination agreement hereafter executed
and delivered to the Agent pursuant to the terms of this Agreement.
- Subsidiary: with respect to any Person, (a) any corporation
of which more than 50% of the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries and (b) any
partnership, joint venture or other association of which more than 50% of the
equity interests having the power to vote to direct or control the management of
such partnership, joint venture or other association is at the time owned or
controlled, directly or indirectly, by such Person, by such Person and one or
more of the other Subsidiaries or by one or more of such Person's other
Subsidiaries. Notwithstanding the foregoing, KTHX Radio, Inc., Susquehanna Ad
Net, Inc., KTHX License Investment Co. and Susquehanna Energy Ventures, Inc.
will not be deemed to be Subsidiaries of the Company so long as such entities
have substantially no assets or liabilities.
- Subsidiary Pledge: the meaning specified in paragraph (c) of
Subsection 4.1.5.
- Subsidiary Suretyship: the meaning specified in Subsection
4.1.4.
- Susquehanna Cable: Susquehanna Cable Co., a Pennsylvania
corporation and a Subsidiary of the Company.
- 113 -
123
- Susquehanna Radio: Susquehanna Radio Corp., a Pennsylvania
corporation and a Subsidiary of the Company.
- Swing Lender: First Union so long as it is a Lender, or if
First Union is no longer a Lender, then a Lender designated by the Company and
acceptable to the Agent.
- Swing Loan: the meaning specified in Subsection 1.2.1.
- Tax Sharing Agreement: the meaning specified in Subsection
4.1.9.
- Term A Lender: each Lender designated as a "Term A Lender"
on Schedule 1.2 hereto and each successor and assign thereof.
- Term A Loan: the meaning specified in Subsection 1.3.1.
- Term A Loan Commitment: the meaning specified in Subsection
1.3.1.
- Term A Maturity Date: June 30, 2007 or such earlier date as
all Term A Loans are due and payable hereunder.
- Term B Lender: each Lender designated as a "Term B Lender"
on Schedule 1.2 hereto and each successor and assign thereof.
- Term B Loan: the meaning specified in Subsection 1.3.2.
- Term B Loan Commitment: the meaning specified in Subsection
1.3.2.
- Term B Maturity Date. June 30, 2008 or such earlier date as
all Term B Loans are due and payable hereunder.
- Term Loans: collectively the Term A Loans and Term B Loans.
- Total Debt: the aggregate principal amount of Consolidated
Indebtedness of the Company and its Subsidiaries. Obligations under Interest
Rate Protection Agreements shall not constitute Total Debt.
- Unapplied Net Proceeds: Net Proceeds received from a
disposition pursuant to Subsection 7.7.2(b), (c) or (d) (Sales and Other
Dispositions) that are not applied to a Permitted Use by the Application Date.
- Unreimbursed Drawings: drawings made under Letters of Credit
which, for any reason, have not been reimbursed by or on behalf of the Company
whether through borrowings of Loans hereunder or otherwise.
- 114 -
124
- U.S. Dollars and $: lawful money of the United States of
America.
- Voting Stock: means capital stock or other ownership
interests of any class or classes of a corporation or another entity the holders
of which are entitled to elect a majority of the corporate directors or Persons
performing similar functions.
- Withdrawal Liability: any withdrawal liability as defined in
Section 4201 of ERISA.
ARTICLE 11
MISCELLANEOUS
11.1 NOTICES.
All notices, requests, demands, directions and other
communications (collectively "notices") given to or made upon any party under
the provisions of this Agreement shall be by telephone or in writing (including
facsimile communication) unless otherwise expressly provided under this
Agreement. If in writing, it shall be delivered or sent by facsimile to the
respective parties at the addresses and numbers set forth under their respective
names on the signature pages of this Agreement or in accordance with any
subsequent unrevoked written direction from any party to the others. All notices
shall, except as otherwise expressly provided in this Agreement, be effective
(a) in the case of facsimile, when received, (b) in the case of hand-delivered
notice, when hand delivered, (c) in the case of telephone, when telephoned,
provided, however, that in order to be effective, telephonic notices must be
confirmed in writing no later than the next day by letter, facsimile or telex,
(d) if given by mail, four (4) days after such communication is deposited in the
mails with first class postage prepaid, return receipt requested, and (e) if
given by any other means (including by air courier), when delivered; provided,
that notices to the Agent shall not be effective until received. Any Lender
giving any notice to the Company shall simultaneously send a copy of such notice
to the Agent, and the Agent, if appropriate, shall promptly notify the other
Lenders of the receipt by it of any such notice. In the event of a discrepancy
between any telephonic or written notice, the written notice shall control.
All notices or demands given to the Company pursuant to
Section 8.1 (Events of Default) or Subsection 8.2.1 (Remedies) of this Agreement
shall also be given to Xxxxxxx at the address for Xxxxxxx set forth or given
pursuant to the Xxxxxxx Pledge, provided that the failure of the Agent, the
Issuing Bank or any Lender to give such notice shall not limit the exercise by
the Agent, the Issuing Bank or any Lender of their rights and remedies under the
Loan Documents or subject the Agent, the Issuing Bank or any Lender to any
liability.
11.2 DURATION; SURVIVAL.
- 115 -
125
All representations and warranties of SPC, the Company, any
Subsidiary of the Company or other pledgor or subordinated party contained in
the Loan Documents shall survive the making of the Loans and shall not be waived
by the execution and delivery of this Agreement, any investigation by the Agent
or the Lenders, the making of the Loans, or payment in full of the Loans. All
covenants and agreements of the Company and such Persons contained in the Loan
Documents shall continue in full force and effect from and after the date of
this Agreement so long as the Company may borrow or obtain Letters of Credit
under this Agreement and until termination of the Commitment and payment in full
of the Loans and all other Senior Secured Obligations.
11.3 NO IMPLIED WAIVER.
No failure or delay on the part of the Agent, the Issuing Bank
or any Lender in exercising any right, power or privilege under the Loan
Documents and no course of dealing between the Company and the Agent, the
Issuing Bank or any Lender shall operate as a waiver of any such right, power or
privilege; nor shall any single or partial exercise of any right, power or
privilege under the Loan Documents preclude any other or further exercise of any
such right, power or privilege or the exercise of any other right, power or
privilege. The rights and remedies expressly provided in the Loan Documents are
cumulative and not exclusive of any rights or remedies which the Agent, the
Issuing Bank or any Lender would otherwise have. No notice to or demand on the
Company in any case shall entitle the Company to any other or further notice or
demand in similar or other circumstances or shall constitute a waiver of the
right of the Agent, the Issuing Bank or any Lender to take any other or further
action in any circumstances without notice or demand.
11.4 ENTIRE AGREEMENT AND AMENDMENTS.
This Agreement, the Letters of Credit and related documents
and the other Loan Documents represent the entire agreement between the parties
to this Agreement with respect to the Commitment, the Letters of Credit, the
Loans and the transactions contemplated under the Loan Documents and, except as
expressly provided in the Loan Documents, shall not be affected by reference to
any other documents. Neither this Agreement nor any provision of this Agreement
may be changed, waived, discharged or terminated orally, but such may be
accomplished only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought, subject
to the provisions of Section 12.5 (Amendments, Waivers and Consents) in the case
of a waiver to be signed by the Agent. Subject to the provisions of said Section
12.5, as amended from time to time, the Agent and the Company may enter into
agreements amending, changing or supplementing any of the provisions of this
Agreement, the Notes or any other Loan Document. Similarly, subject to said
Section 12.5, the Agent may waive compliance with any provision of this
Agreement, the Notes or any other Loan Document. It is understood and agreed,
however, that Agent, the Issuing Bank and the Lenders may amend or modify the
provisions of Article 12 (other than the last sentence of Section 12.8
(Resignation; Termination) to the extent it refers to the Company) without the
need for any consent or approval from the Company, it being acknowledged that
the Company and its Subsidiaries are not third party
- 116 -
126
beneficiaries of the provisions of Article 12 (other than the last sentence of
Section 12.8 to the extent it refers to the Company).
11.5 SUCCESSORS AND ASSIGNS.
11.5.1 IN GENERAL; THE COMPANY. Whenever in this Agreement any
of the parties to this Agreement is referred to, such reference shall be deemed
to include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Company, the Agent, the Issuing Bank or
the Lenders that are contained in this Agreement shall bind and inure to the
benefit of their respective successors and assigns. Without the prior written
consent of the Agent, the Issuing Bank and the Lenders, the Company may not
assign any of its rights or delegate any of its duties or obligations under this
Agreement or the other Loan Documents.
11.5.2 PARTICIPATIONS. Each Lender may, upon giving prior
written notice to the Agent and, if no Event of Default or Potential Event of
Default has occurred and is continuing, the Company, sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement; provided, however, that (i) any RC Lender must
sell proportionate participation interests in its Revolving Credit Commitment,
outstanding Revolving Loans, Letters of Credit and Unreimbursed Drawings in
respect thereof to any participant, (ii) such Lender's obligations under this
Agreement shall remain unchanged, (iii) such Lender shall remain solely
responsible to the other parties to this Agreement for the performance of such
obligations, (iv) all amounts payable by the Company under this Agreement shall
be determined as if such transferor Lender had not sold such participation and
no participant shall be entitled to receive any greater amount pursuant to this
Agreement than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such participant had no such transfer occurred, and (v) the Company, the
Agent, the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such transferor Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right
and responsibility vis-a-vis the Company to enforce the obligations of the
Company relating to the Loans and Letters of Credit including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
with respect to the matters specifically referred to in clauses (a), (b), (c)
and (h) of Section 12.5 (Amendments, Waivers and Consents) hereof).
11.5.3 ASSIGNMENTS. Each Lender may assign to one or more
Eligible Assignees a portion of its interest, rights and obligations under this
Agreement and the other Loan Documents; provided, however, that (i) the Agent
and, if no Event of Default or Potential Event of Default has occurred and is
continuing, the Company must give their prior written consent to such assignment
(which consents shall not be unreasonably withheld) unless such assignment is to
an Affiliate of the assigning Lender and no increased cost to the Company shall
result from such assignment, (ii) any RC Lender must assign proportionate
interests in its Revolving Credit
- 117 -
127
Commitment, outstanding Revolving Loans, Letters of Credit and Unreimbursed
Drawings to any assignee, (iii) the amount of the interest in Loans, Letters of
Credit and Available Commitment of the assigning Lender subject to each such
assignment (determined as of the closing date of the Assignment and Acceptance)
shall be not less than Five Million Dollars ($5,000,000) unless
(1) the assigning Lender is assigning its entire
interest under this Agreement or
(2) a Lender that is a Fund is assigning an interest
to an other Fund in the same Family of Funds or (unless
consent has been obtained from the Agent and Borrower) there
are not more than four Funds in such Family of Funds that are
Lenders hereunder, or
(3) the assignee is an Approved Fund, or
(4) the assignee is one of no more than four
assignees that are in the same Family of Funds and which in
the aggregate, are being assigned an interest equal to at
least $5,000,000,
and (iv) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and the Company's acceptance, an Assignment and
Acceptance Agreement in substantially the form attached hereto as Exhibit R (an
"Assignment and Acceptance"), together with any Note requiring cancellation, a
processing and recordation fee of $3,500 (payable by the applicable assignor)
and reimbursement for fees of the Agent's counsel in connection with services
rendered in respect of such assignment (which amounts are payable by the
applicable assignee and assignor). Upon compliance with the conditions specified
in this Subsection 11.5.3 and the execution, delivery and acceptance of the
Assignment and Acceptance, from and after the closing date specified in such
Assignment and Acceptance, (x) the assignee shall be a party to this Agreement,
and to the extent provided in such Assignment and Acceptance have the rights and
obligations of a Lender under this Agreement and under the other Loan Documents
and (y) the assigning Lender shall, to the extent provided in such Assignment
and Acceptance, be released from its obligations under this Agreement.
11.5.4 MECHANICS OF ASSIGNMENTS. Upon its receipt of an
Assignment and Acceptance executed by an assigning Lender and the assignee and
fulfillment of such other conditions as are set forth on Subsection 11.5.3
above, the Agent shall (i) accept such Assignment and Acceptance, and (ii) give
prompt notice of such acceptance to the assignor and assignee Lenders and the
Company. Within five (5) Business Days after receipt of such notice, the
Company, at its own expense, shall execute and deliver to the Agent, if
necessary, a new Note to the order of such assignee. If the assignor has
assigned all of its interest in this Agreement and the Notes, it shall promptly
return its Note (if any) to the Borrower for cancellation.
- 118 -
128
11.5.5 CERTAIN PERMITTED PLEDGES. Notwithstanding any of the
terms of this Section 11.5, (i) any Lender may assign all or any portion of its
rights to payments in connection with this Agreement to a Federal Reserve Bank
as collateral in accordance with Regulation A of the Board of Governors of the
Federal Reserve System. Such assignment shall not affect any other rights or any
obligations of the assigning Lender, and (ii) any Lender that (x) is a Fund, (y)
pursuant to its organizational structure, must pledge its assets to its trustee
or the holders of its securities, and (z) invests in bank loans may, without
notice to or consent of the Agent or the Company, pledge all or any portion of
its rights in connection with this Agreement to any holders of obligations owed,
or securities issued, by such investment company as security for such
obligations or securities, or to any trustee for, or any other representative
of, such holders; provided that any foreclosure, transfer or similar action by
the pledgee shall be subject to the provisions of this Section concerning
assignments including, without limitation, the requirement that the transferee
be an Eligible Assignee.
11.5.6 AFFECTED LENDERS. In the event that the Company is
obligated to pay any material additional amounts to any Lender (the "Affected
Lender") pursuant to Subsections 1.8.6 (Additional Costs, Unavailability, Etc.),
or 1.10.2 (Breakage) as a result of any event or condition of the type referred
to in such Subsections (and such event or condition is not applicable to all
Lenders), then, so long as no Event of Default or Potential Event of Default
then exists, unless the Affected Lender has theretofore removed or cured the
conditions creating the cause for the obligations to pay such additional
amounts, the Company may, within one hundred eighty (180) days of a request for
compensation by the Affected Lender pursuant to either such Subsections,
designate one replacement lender which is acceptable in the reasonable judgment
of the Agent to (a) purchase, for a consideration equal to all amounts then due
or accrued in respect of all of the Company's obligations to the Affected Lender
pursuant to the Loan Documents, the Affected Lender's rights and (b) assume the
Affected Lender's obligations under the Loan Documents. Such replacement of a
Lender may be made only upon satisfaction of all of the conditions set forth in
this Section 11.5, except that with respect to the initial assignment to the
replacement lender, the $3,500 fee and attorneys' fees payable pursuant to
Subsection 11.5.3 shall be payable by the Company, and the aggregate amount of
the assignment shall be with respect to 100% of the Affected Lender's Commitment
participations in Letters of Credit and Loans; thereafter all conditions in this
Section 11.5 shall apply to all assignments to or by the replacement lender.
11.6 CALCULATIONS AND FINANCIAL DATA.
Except as otherwise provided in this Agreement, calculations
under this Agreement shall be made and financial data and terms referred to in
this Agreement shall be prepared and interpreted both as to classification of
items and as to amounts in accordance with GAAP. It is hereby acknowledged that
the unaudited quarterly financial statements required by Subsection 5.1.1 of
this Agreement shall be deemed to comply with this Section, notwithstanding that
they may not contain footnotes.
- 119 -
129
11.7 DESCRIPTIVE HEADINGS.
The descriptive headings of the several sections of this
Agreement are inserted for convenience only and shall not affect the meaning or
construction of any of the provisions of this Agreement.
11.8 GOVERNING LAW.
This Agreement and the rights and obligations of the parties
under this Agreement and under the Notes shall be construed in accordance with,
and shall be governed by the laws of, the Commonwealth of Pennsylvania.
11.9 ARBITRATION; CONSENT TO JURISDICTION, SERVICE AND VENUE; WAIVER OF
JURY TRIAL.
11.9.1 ARBITRATION.
(a) Upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any claim or controversy
arising out of, or relating to, the Loan Documents between any or all of the
parties hereto(a "Dispute") shall be resolved by binding arbitration conducted
under and governed by the Commercial Financial Disputes Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the "AAA") and the
Federal Arbitration Act. Disputes may include, without limitation, tort claims,
counterclaims, a dispute as to whether a matter is subject to arbitration,
claims brought as class actions, or claims arising from documents executed in
the future. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this arbitration provision does not
apply to disputes under related to Interest Rate Protection Agreements.
(b) All arbitration hearings shall be conducted in
the city of Philadelphia, State of Pennsylvania unless otherwise agreed by all
parties to such arbitration. A hearing shall begin within 90 days of demand for
arbitration and all hearings shall conclude within 120 days of demand for
arbitration. These time limitations may not be extended unless a party shows
cause for extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
the AAA. The parties do not waive applicable Federal or state substantive law
except as provided herein.
(c) Notwithstanding the preceding binding arbitration
provisions, the parties agree to preserve, without diminution, certain remedies
that any party may exercise before or after an arbitration proceeding is
brought. The parties shall have the right to proceed in any court of proper
jurisdiction or by self-help to exercise or prosecute the following remedies, as
applicable: (i) all rights to foreclose against any real or personal property or
other security by
- 120 -
130
exercising a power of sale or under applicable law by judicial foreclosure
including a proceeding to confirm the sales; (ii) all rights of self-help
including peaceful occupation of real property and collection of rents, set-off,
and peaceful possession of personal property; and (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and filing of involuntary bankruptcy
proceedings. Any claim or controversy with regard to any party's entitlement to
such remedies is a Dispute.
(d) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A
REMEDY OF SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER
PARTIES IN ANY DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TO SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN
THE FUTURE IN CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS RESOLVED BY
ARBITRATION OR JUDICIALLY.
11.9.2 CONSENT TO JURISDICTION, SERVICE AND VENUE; WAIVER OF
JURY TRIAL.
(a) With respect to any matters which may be heard
before a court of competent jurisdiction under paragraph (c) of the preceding
Subsection 11.9.1, each of the Company and its Subsidiaries hereby consents to
the jurisdiction and venue of the courts of the Commonwealth of Pennsylvania or
of any federal court located in such state, waive personal service of any and
all process upon it and consents that all such service of process be made by
certified or registered mail directed to the Company or such Subsidiary at the
address provided for in Section 11.1 (Notices) and service so made shall be
deemed to be completed upon actual receipt. Each of the Company and its
Subsidiaries hereby waives the right to contest the jurisdiction and venue of
the courts located in the county of Philadelphia, Commonwealth of Pennsylvania
on the ground of inconvenience or otherwise and, further, waives any right to
bring any action or proceeding against (a) the Agent in any court outside the
county of Philadelphia, Commonwealth of Pennsylvania, or (b) any other Lender
other than in a state within the United States designated by such Lender. The
provisions of this Section 11.9 shall not limit or otherwise affect the right of
the Agent, any Lender or other Senior Secured Party to institute and conduct an
action in any other appropriate manner, jurisdiction or court.
(b) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE,
SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY
TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR ANY
OTHER LOAN DOCUMENT OR ANY GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE
RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE AGENT NOR
ANY LENDER NOR ANY SUBSIDIARY OF THE COMPANY NOR THE COMPANY NOR ANY OTHER
PERSON WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
(c) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH (d)
OF THE PRECEDING SUBSECTION 11.9.1 EXCEPT AS PROHIBITED BY LAW,
- 121 -
131
EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER
IN ANY ARBITRATION OR OTHER LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
EACH PARTY TO THIS AGREEMENT (i) CERTIFIES THAT NEITHER THE AGENT NOR ANY
REPRESENTATIVE, OR ATTORNEY OF THE AGENT NOR ANY LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH LENDER WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.9.
THE PROVISIONS OF THIS SECTION 11.9 HAVE BEEN FULLY DISCLOSED TO THE PARTIES AND
THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED
WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 11.9
WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
For the purpose of enforcing payment and performance of the
Loan Documents, including without limitation, any of the Notes and performance
of the obligations under the Loan Documents, the Company hereby consents to the
jurisdiction and venue of the courts of the Commonwealth of Pennsylvania or of
any federal court located in such state, waives personal service of any and all
process upon it and consents that all such service of process be made by
certified or registered mail directed to the Company and the address provided
for in Section 11.1 (Notices) and service so made shall be deemed to be
completed upon actual receipt. The Company hereby waives the right to contest
the jurisdiction and venue of the courts located in the Commonwealth of
Pennsylvania on the ground of inconvenience or otherwise and, further, waives
any right to bring any action or proceeding against (a) the Agent or First Union
in any other capacity in any court outside the Commonwealth of Pennsylvania, or
(b) any other Lender other than in a state within the United States designated
by such Lender. The provisions of this Section shall not limit or otherwise
affect the right of the Agent or any Lender to institute and conduct action in
any other appropriate manner, jurisdiction or court.
NO PARTY TO THIS AGREEMENT SHALL SEEK A JURY TRIAL IN ANY
PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN
DOCUMENT, ANY COLLATERAL FOR THE PAYMENT OF THE INDEBTEDNESS TO THE LENDERS
UNDER THE LOAN DOCUMENTS OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG
SUCH PERSONS, OR ANY OF THEM. NO PARTY TO THIS AGREEMENT WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY
RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS
SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
- 122 -
132
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY
TO THIS AGREEMENT (i) CERTIFIES THAT NEITHER ANY REPRESENTATIVE, AGENT OR
ATTORNEY OF AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
AGENT OR LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS AGREEMENT. THE PROVISIONS OF THIS SECTION
HAVE BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE
SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO
ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED
IN ALL INSTANCES.
11.10 HOLIDAYS.
Except as provided in Subsection 1.8.4 (LIBOR Election) as to
payments with respect to Adjusted LIBOR, whenever any payment to be made under
the Loan Documents shall become due and payable on a day which is not a Business
Day, such payment may be made on the next succeeding Business Day and such
extension of time shall in such case be included in computing interest on such
payment.
11.11 COUNTERPARTS.
The Loan Documents and any notice or communication under the
Loan Documents may be executed in one or more counterparts, each of which shall
constitute an original, but all of which together shall constitute one and the
same instrument. Delivery of a photocopy or telecopy of an executed counterpart
of a signature page to any Loan Document shall be effective as delivery of a
manually executed counterpart of such Loan Document.
11.12 MAXIMUM LAWFUL INTEREST RATE.
Notwithstanding any provision contained in this Agreement or
the Notes, the total liability of the Company for payment of interest pursuant
to this Agreement and the Notes shall not exceed the maximum amount of such
interest permitted by law to be charged, collected, or received from the
Company, and if any payments by the Company include interest in excess of such a
maximum amount, each Lender shall apply such excess to the reduction of the
unpaid principal amount due pursuant to this Agreement and the Notes, or if none
is due, such excess shall be refunded to the Company.
- 123 -
133
11.13 SET-OFF.
The Company hereby pledges and gives to each Lender a lien and
security interest for the amount of the Indebtedness owing to such Lender under
the Loan Documents upon and in the balance of any account maintained by the
Company with such Lender or any other liability of Lender to the Company. Upon
the occurrence of and throughout the period in which there is continuing an
Event of Default, in such Lender's sole option, at any time and from time to
time, the Company hereby authorizes such Lender to apply any such account
balances now or hereafter in the possession of such Lender and/or a credit in
the amount of any such other liability to the payment of the Indebtedness owing
to Lender under the Loan Documents. The provisions of this Section shall not be
deemed or construed to limit rights of set-off or liens or similar rights which
any Lender may otherwise have by reason of applicable law.
11.14 SEVERABILITY.
Every provision of the Loan Documents is intended to be
severable, and if any term or provision of the Loan Documents shall be invalid,
illegal or unenforceable for any reason, the validity, legality and
enforceability of the remaining provisions shall not be affected or impaired
thereby, and any invalidity, illegality or unenforceability in any jurisdiction
shall not affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction. In the event that any provisions affecting
the Lenders' remedies or security interests shall be held illegal, invalid or
unenforceable, the Lenders shall be entitled, among other things, to reduce the
Available Commitment to the lesser of (a) the outstanding principal amount of
the Revolving Loan, as of the date of the rendering of such decision as to
illegality, invalidity or unenforceability or (b) the amount of such outstanding
principal as of the date on which such reduction is made.
11.15 PAYMENT AND REIMBURSEMENT OF COSTS AND EXPENSES; INDEMNIFICATION.
11.15.1 INDEMNIFICATION AND REIMBURSEMENT IN GENERAL. Whether
or not any Loans are made or Letters of Credit are issued under this Agreement,
the Company shall, unconditionally upon demand, pay or reimburse the Agent and
Lenders for, and indemnify and save the Agent, Lenders, and their respective
Affiliates, officers, directors, employees, agents, attorneys, shareholders,
partners and consultants (collectively, "Indemnitees") harmless against, any all
liabilities, losses, costs, expenses, claims and/or charges (including without
limitation fees and disbursements of legal counsel, accountants, investigators
and other experts, whether or not they are employees of the Agent or the
Lenders, including fees and disbursements of counsel for such Indemnitees in any
investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be a party thereto) imposed on, incurred by or asserted
against such Indemnitees (whether direct, indirect or consequential and whether
based on any federal, state, or local laws and regulations, under common law or
at equity, or on contract, tort or otherwise, arising from or connected with the
past, present or future operations of the Company, its Subsidiaries or their
respective predecessors in interest, or the past, present or future
- 124 -
134
environmental condition of property of the Company and its Subsidiaries) and
arising out of, relating to or connected with:
(a) (i) the negotiation, preparation, execution and
delivery of (A) the Loan Documents and (B) whether or not executed, any waiver,
amendment or consent under or with respect to any of the Loan Documents, (ii)
consulting with respect to any matter in any way arising out of, related to, or
connected with, the Loan Documents, including (A) the protection or preservation
of the collateral securing the Senior Secured Obligations, (B) the protection,
preservation, exercise or enforcement of any of the rights of the Agent and
Lenders in, under or related to such collateral or the Loan Documents or (C) the
performance of any of the obligations of the Agent or Lenders under or related
to the Loan Documents, (iii) protecting or preserving such collateral or (iv)
protecting, preserving, exercising or enforcing any of the rights of the Agent
and Lenders in, under or related to such collateral or the Loan Documents,
including defending the security interest granted to Lenders as a valid,
perfected, first priority security interest in such collateral, provided that,
anything in this Agreement to the contrary notwithstanding, the Company shall
only be responsible for the Agent's costs and expenses, and not those of any
other Lenders, arising out of, relating to or connected with the matters
referred to clauses (i) and (ii) of this paragraph;
(b) all transfer, documentary, stamp and similar
taxes, and all recording and filing fees and taxes payable in connection with,
arising out of, or in any way related to, the execution, delivery and
performance of the Loan Documents or the making of the Loans;
(c) (i) the Company's failure to borrow, convert or
prepay a portion of the Loans with respect to which an interest rate based on
Adjusted LIBOR (or a fixed rate, in the case of Swing Loans) has been elected
pursuant to a notice given with respect thereto, (ii) the Company's repayment of
any portion of the Loans upon acceleration or prepayment, including without
limitation, prepayment of principal bearing interest at a rate based upon
Adjusted LIBOR, (iii) the Company's failure to make any repayment (including any
voluntary prepayment which it notifies Agent it intends to make) pursuant to
this Agreement or the Notes, (iv) any payment, prepayment or conversion of a
portion of the Loans with respect to which an interest rate based on Adjusted
LIBOR has been elected required by any other provision of this Agreement or
otherwise made on a date other than the last day of the Interest Period
applicable thereto or (v) the occurrence of any Event of Default;
(d) any Regulatory Changes which (A) impose, modify
or deem applicable any reserve, asset, special deposit, deposit insurance or
assessment, capital or similar requirements (other than reserve requirements
included in the Reserve Percentage used to calculate Adjusted LIBOR) relating to
or in respect of (i) any category of liabilities which includes deposits by
reference to which Adjusted LIBOR is to be determined as provided in the
definition of such term, (ii) any category of extensions of credit or other
assets which include any portion of the Loans as to which a rate based on
Adjusted LIBOR has been elected, or (iii) the
- 125 -
135
Commitment, the Letters of Credit or the Loans, (B) subject a Lender to any tax
(including without limitation United States withholding tax) with respect to
this Agreement or change the basis of taxation (including without limitation
United States withholding tax) of payments to a Lender of principal, interest or
fees payable under this Agreement (except for local franchise taxes or changes
in the rate of tax on a Lender's net income imposed by the United States or any
other government of the principal place of business of a Lender or any political
subdivision or taxing authority thereof) or (C) impose on any Lender or the
London Interbank Eurocurrency Market any other condition with respect to this
Agreement or any portion of the Loans, including without limitation the
maintenance by such Lender of capital in respect of its portion of the
Commitment or Loans. The Company's indemnification obligations under this clause
(d) shall include, without limitation, an amount equal to any reduction of the
rate of return on assets or equity of a Lender to a level below that which such
Lender could have achieved but for such laws, executive orders, regulations,
interpretations, directives or requests or guidelines;
(e) (i) the Loan Documents, or any act, event or
transaction or alleged act, event or transaction relating or attendant thereto;
(ii) any acquisition or proposed acquisition of stock or assets by the Company
or any of its Subsidiaries; and/or (iii) any use made or proposed to be made by
the Company or any of its Subsidiaries of all or any portion of the Loans; and
(f) commissions or claims by or on behalf of brokers,
finders or agents not retained by Lenders. The Company represents that it has
not engaged or used any such broker, finder or agent in connection with this
Agreement.
11.15.2 CERTIFICATION OF AMOUNTS. The certification by a
Lender hereunder of the amount of liabilities, losses, costs, expenses, claims
and/or charges shall be conclusive if such amounts have been computed or reached
in a reasonable manner.
11.15.3 INTEREST ON OBLIGATIONS. The Company's payment
obligations under this Section shall, together with all of Company's other
payment obligations under this Agreement, effective at the time of demand made
therefor in accordance with this Agreement, bear interest at the Base Rate plus
the Applicable Margin, or if not paid within ten (10) days after such demand, at
the Default Rate.
11.15.4 OBLIGATIONS ABSOLUTE. All of the foregoing obligations
shall continue to apply with respect to and during the collection of amounts due
under the Loan Documents or the proof and allowability of any claim arising
under this Agreement or any other Loan Document, whether in bankruptcy or
receivership proceedings or otherwise, and in any workout, restructuring or in
connection with the protection, preservation, exercise or enforcement of any of
the terms of this Agreement or of any rights under this Agreement or under any
other Loan Document or in connection with any foreclosure, collection or
bankruptcy proceedings.
- 126 -
136
11.15.5 LIMITATIONS ON INDEMNIFICATION. Notwithstanding the
foregoing, the Company shall not be required to indemnify any Indemnitee with
respect to a claim or liability that arises as the result of the gross
negligence or willful misconduct of any Indemnitee as shall have been determined
in a nonappealable judgment of a court of competent jurisdiction.
ARTICLE 12
AGENT
12.1 AUTHORITY.
The Lenders hereby irrevocably appoint First Union to act as
Agent as specified in the Loan Documents, and each of the Lenders hereby
irrevocably authorizes, and each of the holders of a Note by the acceptance of
the Notes shall be deemed irrevocably to authorize First Union, for such Lender
and such holder, to execute and take such action on its behalf under the
provisions of this Agreement, the Notes, and the other Loan Documents and to
exercise such powers under the Loan Documents as are specifically delegated to
the Agent by the terms of the Loan Documents and such powers as are reasonably
incidental thereto.
12.2 EXPENSES.
In default of reimbursement or indemnification by the Company,
the Lenders will, in proportion to their respective portions of the Commitment,
reimburse the Agent for and against all expense, liability, penalty and damage
of any nature whatsoever (including but not limited to reasonable attorneys'
fees) which may be incurred or sustained by the Agent in any way in connection
with the Loan Documents or its duties under the Loan Documents provided that (i)
no Lender shall be liable for any portion of the foregoing items resulting from
the gross negligence or willful misconduct of the Agent and (ii) unless an Event
of Default has occurred and is continuing (or is reasonably believed by the
Agent to have occurred and be continuing), no Lender shall be liable for the
normal administrative costs and expenses of the Agent incident to the
performance of its duties as Agent under the Loan Documents, but Lenders shall
be liable for all out of pocket costs and expenses of the Agent (including out
of pocket administrative costs) during the existence of an Event of Default
(including one reasonably believed to exist by Agent) after demand and failure
by the Company to pay promptly. The Agent shall not have any obligation to take
any action in connection with the performance of its duties as Agent under the
Loan Documents which, in its opinion, requires the payment of expenses or the
incurrence of liability, if there is a reasonable ground for belief that
reimbursement of such expenses or liability is not reasonably assured to it.
12.3 EXCULPATORY PROVISIONS.
Neither the Agent, nor any Lender constituting the Agent, nor
any of its or their officers, directors, employees or agents, shall be liable
for any action taken or omitted under the Loan Documents or in connection with
the Loan Documents unless caused by its or their gross
- 127 -
137
negligence or willful misconduct. The Agent shall not be responsible for any
recitals, warranties or representations in the Loan Documents or for the
validity, enforceability, collectibility or due execution of this Agreement or
any of the other Loan Documents. The Lenders hereby acknowledge that they have
reviewed this Agreement and the other Loan Documents and are fully aware of the
terms thereof. The Agent may execute any of its duties by or through agents or
employees and shall be entitled to advice of counsel, accountants or other
professionals of its selection concerning all matters pertaining to the Loan
Documents and its duties under the Loan Documents. The Agent shall be entitled
to rely upon any writing or other document, telegram or telephone conversation
believed by it to have been signed, sent or made by the proper person or persons
and, in respect of legal matters, upon the advice of counsel selected by the
Agent. With respect to the portion of the Loans made by it and Notes issued to
it, the Agent shall have the same rights and powers under the Loan Documents as
any other Lender or holder of a Note and may exercise the same as though it were
not the Agent, and the term "Lenders" or "holders of Notes" or any similar term
shall, unless the context otherwise indicates, include the Agent in its capacity
as a Lender.
12.4 INVESTIGATION BY LENDERS.
Each Lender expressly acknowledges that the Agent has not made
any representation or warranty to it and that no act taken by the Agent shall be
deemed to constitute a representation or warranty by the Agent to the Lenders.
Each Lender further acknowledges that it has taken and will continue to take
such action and to make such investigation as it deems necessary to inform
itself of the affairs of the Company and that it has made and will continue to
make its own independent investigation of the creditworthiness and the business
and operations of the Company. In entering into this Agreement, and in making an
advance under this Agreement, each Lender represents that it has not relied and
will not rely upon any information or representations furnished or given by the
Agent or by any other Lender. The Agent shall be under no duty or responsibility
to the Lenders to ascertain or to inquire into the performance or observance by
the Company of any of the provisions of this Agreement or any document or
instrument now or hereafter executed in connection with this Agreement. It is
expressly understood and agreed that the Agent shall not be deemed to have
knowledge of the existence, occurrence or continuance of an Event of Default or
Potential Event of Default, unless the officers of such Agent immediately
responsible for matters concerning this Agreement shall have actual knowledge of
such occurrence or the Agent shall have been notified in writing by any Lender
or the Company that such Lender or the Company, as applicable, considers that an
Event of Default or Potential Event of Default has occurred and is continuing
and specifying the nature of such Event of Default or Potential Event of
Default.
12.5 AMENDMENTS, WAIVERS AND CONSENTS.
- 128 -
138
With the written consent of the Requisite Lenders, the Agent
may, on behalf of the Lenders, enter into agreements which change, amend or
supplement this Agreement or any other Loan Document, and with such consent, the
Agent may waive compliance with any provision of any of the Loan Documents, all
as referred to in this Section 12.5. However, no such change, amendment,
supplement or waiver shall, without the consent of each Lender:
(a) change the maximum amount of (i) the Loans, (ii)
the Available Commitment or (iii) the Commitment, except as specifically
provided in this Agreement,
(b) extend the Revolver Maturity Date, the Term A
Maturity Date, the Term B Maturity Date, the Maturity Date or any scheduled
amortization or date for payment of interest or fees of the Loans,
(c) decrease the rate of interest, provided that the
written consent of the Requisite Lenders, rather than the consent of all
Lenders, shall be sufficient to waive imposition of the Default Rate pursuant to
clause (c) of Subsection 1.8.8,
(d) reduce the amount of the fees payable under
Subsection 1.7.1 (Commitment Fees) or other fees, other than any fee payable
solely to Agent,
(e) modify the provisions of this Section,
(f) amend the definition of "Requisite Lenders",
(g) change the number of Lenders which are required
to consent to any proposed action under this Agreement before such action may be
taken under this Agreement,
(h) release any guaranty, any guarantor, any pledgor
or any collateral security granted pursuant to the Loan Documents; provided
however, the Agent may without the consent of any Person release any guarantor
or any collateral security granted pursuant to the Loan Documents and file UCC-3
termination statements or statements of amendment or take other appropriate
action (i) as a court of competent jurisdiction may direct, (ii) in connection
with a disposition (other than to the Borrower or a Subsidiary thereof)
permitted under Subsection 7.7.2 (which subsection may be amended by the
Requisite Lenders) or as otherwise provided under the Loan Documents, (iii) if
in accordance with this Agreement cash proceeds from any sale or transfer of the
collateral are used to prepay outstanding sums due under the Loans or are
reinvested in the Company and its Subsidiaries, (iv) if such collateral security
is of little or no value (such as certificates representing stock redeemed or
exchanged consistent with the terms of this Agreement or assets which have been
abandoned) as certified by the Company in a written statement requesting such
release or (v) where a filing is no longer required because collateral has been
moved away from the subject jurisdiction or for a similar reason, or
- 129 -
139
(i) waive an Event of Default under Subsection 8.1.1
(Payment of Principal) or 8.1.2 (Payment of Interest, Etc.) after such Event of
Default shall have occurred, or
(j) change any provision that requires payments to be
made on a pro rata basis among the Lenders; or
(k) forgive any principal or interest on the Loans.
12.6 ACTION UPON DEFAULTS.
12.6.1 ACTIONS BY AGENT. Upon the occurrence and during the
continuation of an Event of Default, the Agent upon (a) (i) the request of any
three Lenders (which are not affiliates of each other) upon the occurrence of an
Event of Default under Subsection 8.1.1 (Payment of Principal) or 8.1.2 (Payment
of Interest; Etc.) or (ii) the request of the Requisite Lenders in the event of
any other Event of Default (other than a default under Subsection 8.1.1 or 8.1.2
as to which clause (a)(i) above shall govern and other than a default under
Subsection 8.1.10 (Insolvency) as to which the first sentence of Subsection
8.2.1 (Remedies) provides for automatic acceleration) and (b) the Lenders (in
proportion to their respective portions of the Loans) providing an indemnity in
form and substance reasonably satisfactory to the Agent (the Agent acknowledging
that an indemnity substantially in the form of the indemnity set forth in
Section 11.15 will be satisfactory) of all expenses to the extent not reimbursed
by the Company (including but not limited to reasonable attorneys' fees and
disbursements), shall declare the Notes to be due and payable and shall, subject
to Subsections 8.2.3 (Regulatory Matters) and 8.2.4 (Certain Limitations),
proceed to enforce the rights of the holders of the Notes by such proceedings as
the Agent may deem appropriate, whether at law or in equity. Upon any request as
aforesaid, the Agent shall declare the Notes to be due and payable, but the
Agent shall be justified in failing or refusing to take any further action
unless it shall be indemnified to its satisfaction as aforesaid. It is agreed
that if the Agent, having been so indemnified to its satisfaction as aforesaid,
or not having been so indemnified, shall fail to so proceed, any Lender shall be
entitled to take such action as it shall deem appropriate to enforce its rights.
If the exigencies of the circumstances so require, the Agent may (but is under
no circumstances obligated to) declare the Notes due and payable after an Event
of Default without any Lender's direction. For the purposes of clause (a)(i)
above, all Lenders which are part of the same Family of Funds shall be treated
as one Lender.
12.6.2 PROCEEDS OF COLLATERAl. The Agent, on behalf of all the
Lenders, shall hold in accordance with the Loan Documents all items of
collateral or interests therein received or held by the Agent. Subject to the
Agent's rights to reimbursement for its fees, costs and expenses (including,
without limitation, reasonable attorneys fees) and subject to any terms in this
Agreement specifically directing that proceeds be applied otherwise, each Lender
shall have an interest in any collateral or interests therein in the same
proportions that the aggregate outstanding principal amount of the Loans and
obligations under or in respect of Letters of Credit and Interest Rate
Protection Agreements owed such Lender bear to the aggregate outstanding
- 130 -
140
principal amount of the Loans and obligations under or in respect of Letters of
Credit and Interest Rate Protection Agreements owed to all the Lenders, without
priority or preference among the Lenders.
12.7 INSTRUCTIONS.
The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under the Loan Documents in accordance with written
instructions of the Requisite Lenders or all Lenders, as applicable.
12.8 RESIGNATION; TERMINATION.
The Agent may resign at any time by giving prior written
notice to the Company and the Lenders and the Agent may be removed at any time
with or without cause by the Requisite Lenders. Such resignation or removal
shall take effect at the end of the sixty (60) day period after such notice of
resignation or removal has been given or upon the earlier appointment of a
successor agent by the Requisite Lenders. The Lenders shall, upon receipt of
such notice, appoint a successor agent from among the Lenders, and the Lenders
and the Company shall execute such documents as shall be necessary to effect
such appointment. During any period that there shall not be a duly appointed and
acting Agent, the Company agrees to make each payment due under this Agreement
and under the Notes directly to each Lender entitled thereto and to provide
copies of each certificate or other document required under this Agreement
directly to each Lender. Any appointment under this Section shall require the
consent of all Lenders and, so long as no Event of Default exists, the Company
(which consent of the Company shall not be unreasonably withheld or delayed).
12.9 SHARING.
If any Lender shall at any time receive payment of or on
account of all or a part of any Note held by it, whether by set-off or
otherwise, in a greater proportion than the payments made on the Notes held by
the other Lenders, such Lender shall simultaneously purchase, without recourse,
for cash, ratably from each of the other Lenders, such portion of the Notes held
by such other Lenders so that, after such purchase, each Lender will hold an
unpaid principal amount of Notes in the same proportion that the outstanding
principal balance due to such Lender immediately prior to such payment bore to
the aggregate outstanding principal balance due to all Lenders immediately prior
to such payment. In the event that, at any time, any Lender shall be required to
refund any amount which has been paid to or received by it on account of any
Note held by it, and which has been applied to the purchase of a portion of the
Notes held by other Lenders pursuant to this Section, then, upon notice from
such Lender, each of the other Lenders shall simultaneously purchase, without
recourse, its portion for cash, to the extent of its ratable share thereof, of
the Notes held by the Lender required to make such refund.
12.10 FAILURE OF A LENDER TO MAKE AN ADVANCE.
- 131 -
141
In addition to other ramifications of a Lender failing to fund
as set forth elsewhere in this Agreement, each Lender agrees that if, in breach
of its obligations to the Company under this Agreement, it fails to pay its full
share of any Loans or other amounts that it is obligated to fund hereunder, as a
result of which the unpaid principal amount of the Notes held by it shall be
proportionately less than the unpaid principal amount of the Notes held by the
other Lenders, (a) it shall be deemed to have simultaneously purchased from the
other Lenders a participation in the Notes held by such other Lenders so that
the aggregate unpaid principal amount of all Notes held by all Lenders shall be
in the same proportion to the aggregate unpaid principal amount of the Loans as
is each such Lender's percentage of the Commitment and the Term Loan Commitment,
and (b) it shall promptly reimburse the appropriate amounts (including, without
limitation, interest) due in connection with such purchase to the other Lenders;
provided that if thereafter the Lender pays to the Company the amount which it
failed to pay, then such purchase shall be deemed rescinded and the purchase
price shall be repaid by the other Lenders without interest. Nothing contained
in this Agreement or any other Loan Document and no action taken by the Agent or
the Lenders or any of them pursuant to this Agreement or any other Loan Document
may, or may be deemed to, make the Lenders a partnership, an association, a
joint venture, or other entity, either among themselves or with the Company. A
default by any Lender will not increase the commitment of any other Lender. Any
Lender not in default may, if it desires, assume any such proportion as the
non-defaulting Lenders agree of the obligations of any Lender in default, but no
Lender is obligated to do so. Nothing in this Section shall affect the rights of
the Company as to any such defaulting Lender.
12.11 OTHER RELATIONSHIPS.
It is acknowledged that the Agent and the Lenders may now or hereafter have
lending or other relationships with the Company and Affiliates of the Company,
and it is agreed that the Agent and the Lenders are free to act with respect
thereto without consulting with one another and without regard to the effect of
any such action or relationship upon the Loans or obligations hereunder.
- 132 -
142
IN WITNESS WHEREOF, the Company, the Agent and the Lenders
have caused this Loan Agreement to be duly executed by their respective, duly
authorized officers as of the date first above written.
SUSQUEHANNA MEDIA CO.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
Notice Information
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
FIRST UNION NATIONAL BANK, in its capacity
as Agent and a Lender
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
Notice Information
Address: Communications/Media Group
PA 4829
Xxx Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx, Senior Vice President
- 133 -
143
Wire Transfer Information
First Union Bank, N.A.
Commercial Loans
Philadelphia, PA
ABA Number 000-0000-00
Account Number 0132-0452
Attention: Xxxxx Xxxxxx
Re: Susquehanna Media Co.
Any notices relating to the administration of the Loan, including, without
limitation, requests for fundings and selection of a rate of interest based on
Adjusted LIBOR, should also be sent to the Agent at:
First Union Investment Banking
PA 4830
Xxx Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Phone No. (000) 000-0000
Fax No. (000) 000-0000
Attention: Xxxxx Xxxxxx, Associate Director
- 134 -
144
NATIONSBANK, N.A., in its capacity as a
Managing Agent and a Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Address: NationsBank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
UNION BANK OF CALIFORNIA, N.A., in its
capacity as a Managing Agent and a Lender
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
Address: Union Bank of California, N.A.
Communications/Media Group
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Senior Vice President
- 135 -
145
KEY CORPORATE CAPITAL INC. in its
capacity as a Managing Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Address: 000 Xxxxxx Xxxxxx
Mailcode: OH-01-27-0602
Xxxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Vice President
MELLON BANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Officer
Address: Mellon Bank, N.A.
One Mellon Bank Center
Room 4440
Xxxxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx
- 136 -
146
SUMMIT BANK
By: /s/ Xxxxx X. Xxxx, Xx.
-----------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Vice President
Address: Summit Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxx, Xx., Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
Address: The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
- 137 -
147
ABN AMRO BANK N.V.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
Address: ABN AMRO BANK N.V.
000 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Credit Administration
With a copy to:
Address: ABN AMRO BANK N.V.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxx
BANK OF MONTREAL
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director of Communication
Address: Bank Of Montreal
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxxx
- 138 -
148
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
Address: PNC Bank, National Association
Communications Banking Division
21st Floor, Mail Stop: F2-F070-21-1
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Asst. Vice President
CRESTAR BANK
By: /s/ J. Xxxx Xxxxxxx
-----------------------------------
Name: J. Xxxx Xxxxxxx
Title: Vice President
Address: Crestar Bank
000 Xxxx Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: J. Xxxx Xxxxxxx
- 139 -
149
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Address: U.S. Bank National Association
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Vice President
BANK OF HAWAII
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
Address: Bank of Hawaii
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxxx
With a copy to:
Address: Bank of Hawaii
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
- 140 -
150
FIRST HAWAIIAN BANK
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Address: First Hawaiian Bank
0000 Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Vice President
FMB BANK
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address: FMB Bank
00 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Vice President
- 141 -
151
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/ X.X. Xxxxxx
-----------------------------------
Name: X.X. Xxxxxx
Title: Assistant Vice President
Address: The CIT Group/Equipment Financing, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Asst. Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
Address: General Electric Capital Corporation
Commercial Finance
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxx
- 142 -
152
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx and Xxxxxxx Xxxx
Title:
Address: Compagnie Financiere de CIC et
de l'Union Europeenne
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/ W. Xxxxxxxxxxx Xxxxxx
-----------------------------------
Name: W. Xxxxxxxxxxx Xxxxxx
Title: Corporate Banking Officer
Address: National City Bank of Pennsylvania
00 Xxxxxxx Xxxxxx
XXX. #00-000
Xxxxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: W. Xxxxxxxxxxx Xxxxxx,
Corporate Banking Officer
- 143 -
153
MICHIGAN NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Relationship Manager
Address: Michigan National Bank
00000 Xxxxxxx Xxxx 00-00
Xxxxxxxxxx Xxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
XXXXXX XXXXXXX XXXX XXXXXX PRIME
INCOME TRUST
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Address: Xxxxxx Xxxxxxx Xxxx Xxxxxx Prime Income
Trust
c/o Morgan Xxxxxxx Xxxx Xxxxxx Advisors,
Inc.
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxx
- 144 -
154
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Investment Officer
Address: The Travelers Insurance Company
Xxx Xxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxxxx, 0-XX
Xxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
NEW YORK LIFE INSURANCE COMPANY
By: /s/ S. Xxxxxx Xxxxx
-----------------------------------
Name: S. Xxxxxx Xxxxx
Title: Director
Address: New York Life Insurance Company
00 Xxxxxxx Xxxxxx, Xxxx 000
Xxx Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxx Xxxxx, Director
- 145 -
155
FIRSTRUST BANK
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Address: Firstrust Bank
00 X. Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxx Xxxxxx
- 146 -
156
INTENTIONALLY LEFT BLANK
- 147 -
157
CITY NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Address: City National Bank
000 X. Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxx, Asst. Vice President
XXXXX BROTHERS XXXXXXXX & CO.
By: /s/ X. Xxxxx X'Xxxxxxxx
-----------------------------------
Name: X. Xxxxx X'Xxxxxxxx
Title: Manager
Address: Xxxxx Brothers Xxxxxxxx & Co.
Private Bankers
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: X. Xxxxx X'Xxxxxxxx, Manager
- 148 -
158
TRAVELERS CORPORATE LOAN FUND INC.
BY: TRAVELERS ASSET MANAGEMENT
INTERNATIONAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Investment Officer
Address: Travelers Corporate Loan Fund Inc.
c/o Xxxxxxx Xxxxx Barney
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
- 149 -
159
LIST OF ADDENDA (EXHIBITS AND SCHEDULES)
EXHIBITS
Exhibit A-1 - Form of RC Note - (Section 1.5)
Exhibit A-2 - Form of Term A Note - (Section 1.5)
Exhibit A-3 - Form of Term B Note - (Section 1.5)
Exhibit A-4 - Form of Swing Note - (Section 1.5)
Exhibit B - Request for Advance - (Section 1.6)
Exhibit C - LIBOR Election - (Section 1.8.4)
Exhibit D Form of Officer's Certificate as to Applicable Margin -(Section
1.8.3(a))
Exhibit E - Form of Security Agreement - (Section 4.1.3)
Exhibit F - Form of Guaranty and Suretyship Agreement - (Section 4.1.4)
Exhibit G - Form of SPC Pledge Agreement - (Section 4.1.5(a))
Exhibit H - Form of Company Pledge Agreement - (Section 4.1.5(b))
Exhibit I - Form of Subsidiary Pledge Agreement - (Section 4.1.5(c))
Exhibit J - Form of Other Shareholder Pledge Agreement (Section 4.1.5(d))
Exhibit K - Form of Xxxxxxx Pledge Agreement - (Section 4.1.5(e))
Exhibit L - Form of SPC Subordination Agreement - (Section 4.1.6(a))
Exhibit M - Form of Shareholder Subordination Agreement - (Section 4.1.6(b))
Exhibit N - Form of Xxxxxxx Subordination Agreement - (Section 4.1.6(c))
Exhibit O - Form of Trademark Collateral Agreement - (Section 4.1.7)
Exhibit P - Form of Subscriber Penetration Levels Report - (Section 5.1.4(b))
Exhibit Q - Form of Officer's Compliance Certificate - (Section 10.1)
Exhibit R - Form of Assignment and Acceptance - (Section 11.5.3)
SCHEDULES
Schedule 1.1 - Revolving Credit Commitment
Schedule 1.2 - Term Loan Commitment
Schedule 7.3 - Existing Investments
Schedule 7.6 - Permitted Transactions with Shareholders and Affiliates
Schedule 7.8 - SPC Expense Reimbursement
Schedule 9.1 - Equity Ownership, Etc.
Schedule 9.9 - Franchises and Licenses
Schedule 9.17 - Outstanding Indebtedness
Schedule 9.21 - ERISA
Schedule 9.25 - Environmental Compliance
- 150 -
160
EXHIBIT A-1
to
Credit Agreement
dated as of ____________ __, 1999
by and among
Susquehanna Media Co.
as Borrower,
the Lenders party thereto,
and
First Union National Bank,
as Agent
FORM OF REVOLVING CREDIT NOTE
161
REVOLVING CREDIT NOTE
___________ __, 1999
FOR VALUE RECEIVED, the undersigned, Susquehanna Media Co., a
corporation organized under the laws of Delaware (the "Borrower"), promises to
pay to the order of _________________________________, (the "Lender"), the
principal amount of the Revolving Credit Loans of the Lender, together with
interest thereon, all as set forth in that certain Credit Agreement, dated as of
even date herewith (as amended, extended, supplemented, restated or otherwise
modified or refinanced, the "Credit Agreement") among the Borrower, the Lenders
who are or may become a party thereto (collectively, the "Lenders") and First
Union National Bank, as Agent. All payments shall be made at the place and times
provided in the Credit Agreement. Capitalized terms used herein and not defined
herein shall have the meanings assigned thereto in the Credit Agreement.
The unpaid principal amount of this Revolving Credit Note from time to
time outstanding is subject to mandatory repayment from time to time as provided
in the Credit Agreement and, as set forth above, shall bear interest as provided
in the Credit Agreement. As more fully set forth in the Credit Agreement, all
obligations evidenced hereby, to the extent not due and payable before, shall be
due and payable on the Revolver Maturity Date. All payments of principal and
interest on this Revolving Credit Note shall be payable in lawful currency of
the United States of America in immediately available funds to the account
designated in the Credit Agreement.
This Revolving Credit Note is entitled to the benefits of, and
evidences Senior Secured Obligations incurred under, the Credit Agreement, to
which reference is made for a description of the security for this Revolving
Credit Note and for a statement of the terms and conditions on which the
Borrower is permitted and required to make prepayments and repayments of
principal of the Senior Secured Obligations evidenced by this Revolving Credit
Note and on which such Senior Secured Obligations may be declared to be
immediately due and payable.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REFERENCE
TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
The obligations evidenced by this Revolving Credit Note are senior in
right of payment to all Senior Subordinated Notes and any other subordinated
debt referred to in the Credit Agreement. The obligations evidenced hereby are
"Designated Senior Indebtedness" within the meaning of the Senior Subordinated
Indenture and Senior Subordinated Notes.
162
The Company hereby waives all requirements as to diligence,
presentment, demand of payment, protest and (except as required by the Credit
Agreement) notice of any kind with respect to this Revolving Credit Note.
IN WITNESS WHEREOF, the undersigned has executed this Revolving Credit
Note under seal as of the day and year first above written.
SUSQUEHANNA MEDIA CO.
[CORPORATE SEAL]
By: _________________________________
Name:____________________________
Title:___________________________
163
EXHIBIT A-2
to
Credit Agreement
dated as of ____________ __, 1999
by and among
Susquehanna Media Co.
as Borrower,
the Lenders party thereto,
and
First Union National Bank,
as Agent
FORM OF TERM A NOTE
164
TERM A NOTE
___________ __, 1999
FOR VALUE RECEIVED, the undersigned, Susquehanna Media Co., a
corporation organized under the laws of Delaware (the "Borrower"), promises to
pay to the order of _________________________________, (the "Lender"), the
principal amount of the Term A Loans of the Lender, together with interest
thereon, all as set forth in that certain Credit Agreement, dated as of even
date herewith (as amended, extended, supplemented, restated or otherwise
modified or refinanced, the "Credit Agreement") among the Borrower, the Lenders
who are or may become a party thereto (collectively, the "Lenders") and First
Union National Bank, as Agent. All payments shall be made at the place and time
provided in the Credit Agreement. Capitalized terms used herein and not defined
herein shall have the meanings assigned thereto in the Credit Agreement.
The unpaid principal amount of this Term A Note from time to time
outstanding is subject to mandatory repayment from time to time as provided in
the Credit Agreement and, as set forth above, shall bear interest as provided in
the Credit Agreement. As more fully set forth in the Credit Agreement, all
obligations evidenced hereby, to the extent not due and payable before, shall be
due and payable on the Term A Maturity Date. All payments of principal and
interest on this Term A Note shall be payable in lawful currency of the United
States of America in immediately available funds to the account designated in
the Credit Agreement.
This Term A Note is entitled to the benefits of, and evidences Senior
Secured Obligations incurred under, the Credit Agreement, to which reference is
made for a description of the security for this Term A Note and for a statement
of the terms and conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Senior Secured Obligations
evidenced by this Term A Note and on which such Senior Secured Obligations may
be declared to be immediately due and payable.
THIS TERM A NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REFERENCE
TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
The obligations evidenced by this Term A Note are senior in right of
payment to all Senior Subordinated Notes and any other subordinated debt
referred to in the Credit Agreement. The obligations evidenced hereby are
"Designated Senior Indebtedness" within the meaning of the Senior Subordinated
Indenture and Senior Subordinated Notes.
165
The Company hereby waives all requirements as to diligence,
presentment, demand of payment, protest and (except as required by the Credit
Agreement) notice of any kind with respect to this Term A Note.
IN WITNESS WHEREOF, the undersigned has executed this Term A Note under
seal as of the day and year first above written.
SUSQUEHANNA MEDIA CO.
[CORPORATE SEAL]
By: _______________________________
Name:__________________________
Title: ________________________
166
EXHIBIT A-3
to
Credit Agreement
dated as of ____________ __, 1999
by and among
Susquehanna Media Co.
as Borrower,
the Lenders party thereto,
and
First Union National Bank,
as Agent
FORM OF TERM B NOTE
167
TERM B NOTE
___________ __, 1999
FOR VALUE RECEIVED, the undersigned, Susquehanna Media Co., a
corporation organized under the laws of Delaware (the "Borrower"), promises to
pay to the order of _________________________________, (the "Lender"), the
principal amount of the Term B Loans of the Lender, together with interest
thereon, all as set forth in that certain Credit Agreement, dated as of even
date herewith (as amended, extended, supplemented, restated or otherwise
modified or refinanced, the "Credit Agreement") among the Borrower, the Lenders
who are or may become a party thereto (collectively, the "Lenders") and First
Union National Bank, as Agent. All payments shall be made at the place and times
provided in the Credit Agreement. Capitalized terms used herein and not defined
herein shall have the meanings assigned thereto in the Credit Agreement.
The unpaid principal amount of this Term B Note from time to time
outstanding is subject to mandatory repayment from time to time as provided in
the Credit Agreement and, as set forth above, shall bear interest as provided in
the Credit Agreement. As more fully set forth in the Credit Agreement, all
obligations evidenced hereby, to the extent not due and payable before, shall be
due and payable on the Term B Maturity Date. All payments of principal and
interest on this Term B Note shall be payable in lawful currency of the United
States of America in immediately available funds to the account designated in
the Credit Agreement.
This Term B Note is entitled to the benefits of, and evidences Senior
Secured Obligations incurred under, the Credit Agreement, to which reference is
made for a description of the security for this Term B Note and for a statement
of the terms and conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Senior Secured Obligations
evidenced by this Term B Note and on which such Senior Secured Obligations may
be declared to be immediately due and payable.
THIS TERM B NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REFERENCE
TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
The obligations evidenced by this Term B Note are senior in right of
payment to all Senior Subordinated Notes and any other subordinated debt
referred to in the Credit Agreement. The obligations evidenced hereby are
"Designated Senior Indebtedness" within the meaning of the Senior Subordinated
Indenture and Senior Subordinated Notes.
168
The Company hereby waives all requirements as to diligence,
presentment, demand of payment, protest and (except as required by the Credit
Agreement) notice of any kind with respect to this Term B Note.
IN WITNESS WHEREOF, the undersigned has executed this Term B Note under
seal as of the day and year first above written.
SUSQUEHANNA MEDIA CO.
[CORPORATE SEAL]
By: _______________________________
Name: _________________________
Title: ________________________
169
EXHIBIT A-4
to
Credit Agreement
dated as of ____________ __, 1999
by and among
Susquehanna Media Co.
as Borrower,
the Lenders party thereto,
and
First Union National Bank,
as Agent
FORM OF SWING NOTE
170
SWING NOTE
__________ __, 1999
FOR VALUE RECEIVED, the undersigned, Susquehanna Media Co., a
corporation organized under the laws of Delaware (the "Borrower"), promises to
pay to the order of FIRST UNION NATIONAL BANK (the "Lender"), the principal
amount of the Swing Loans of the Lender, together with interest thereon, all in
the amounts and as set forth in that certain Credit Agreement, dated as of even
date herewith (as amended, extended, supplemented, restated or otherwise
modified or refinanced, the "Credit Agreement") among the Borrower, the Lenders
who are or may become a party thereto (collectively, the "Lenders") and First
Union National Bank, as Agent. All payments shall be made at the place and times
provided in the Credit Agreement. Capitalized terms used herein and not defined
herein shall have the meanings assigned thereto in the Credit Agreement.
The unpaid principal amount of this Swing Note from time to time
outstanding is subject to mandatory repayment on the date that demand is made
therefor as provided in the Credit Agreement and, as set forth above, shall bear
interest as provided in the Credit Agreement. As more fully set forth in the
Credit Agreement, all obligations evidenced hereby, to the extent not due and
payable before, shall be due and payable on the Revolver Maturity Date. All
payments of principal and interest on this Swing Note shall be payable in lawful
currency of the United States of America in immediately available funds to the
account designated in the Credit Agreement.
This Swing Note is entitled to the benefits of, and evidences Senior
Secured Obligations incurred under, the Credit Agreement, to which reference is
made for a description of the security for this Swing Note and for a statement
of the terms and conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Senior Secured Obligations
evidenced by this Swing Note and on which such Senior Secured Obligations may be
declared to be immediately due and payable.
THIS SWING NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REFERENCE TO THE
CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
The obligations evidenced by this Swing Note are senior in right of
payment to the Senior Subordinated Notes and any other subordinated debt
referred to in the Credit Agreement. The obligations evidenced hereby are
"Designated Senior Indebtedness" within the meaning of the Senior Subordinated
Indenture and Senior Subordinated Notes.
The Company hereby waives all requirements as to diligence,
presentment, demand of payment, protest and (except as required by the Credit
Agreement) notice of any kind with
171
respect to this Swing Note.
IN WITNESS WHEREOF, the undersigned has executed this Swing Note under
seal as of the day and year first above written.
SUSQUEHANNA MEDIA CO.
[CORPORATE SEAL]
By: ________________________________
Name: Xxxx X. Xxxxxxx
Title: Treasurer
172
EXHIBIT B
to
Credit Agreement
dated as of ____________ __, 1999
by and among
SUSQUEHANNA MEDIA CO.,
as Borrower,
the Lenders party thereto,
and
First Union National Bank,
as Agent
FORM OF NOTICE OF BORROWING
173
NOTICE OF BORROWING
Dated as of: ______________
First Union National Bank, as Agent
One South Penn Square
PA 4830
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Associate Director
Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you under Section
1.6 of the Revolving Credit and Term Loan Agreement dated as of __________ __,
1999 (as amended, restated or otherwise modified, the "Credit Agreement"), by
and among SUSQUEHANNA MEDIA CO, a Delaware corporation ("Company"), the lenders
party thereto (the "Lenders") and First Union National Bank, as Agent.
1. Company hereby requests that the Lenders make a Revolving Loan to
Company in the aggregate principal amount of $___________. (COMPLETE WITH AN
AMOUNT IN ACCORDANCE WITH SECTION 1.6 OF THE CREDIT AGREEMENT.)
2. Company hereby requests that such Revolving Loan be made on the
following Business Day: _____________________. (COMPLETE WITH A BUSINESS DAY IN
ACCORDANCE WITH SECTION 1.6 OF THE CREDIT AGREEMENT).
3. Company hereby requests that the Revolving Loan bear interest at the
following interest rate, plus the Applicable Margin, as set forth below:
Interest Rate Interest Period Termination Date for
Component (Base Rate or (LIBOR Interest Period
of Loan LIBOR Rate) Rate only) (if applicable)
------- ----------- ---------- ---------------
(A NOTICE OF BORROWING FOR A BORROWING TO BEAR INTEREST AT A RATE BASED UPON
ADJUSTED LIBOR MUST ALSO BE ACCOMPANIED BY AN ELECTION FOR ADJUSTED LIBOR.)
(A NOTICE OF BORROWING FOR A BORROWING IN EXCESS OF $25,000,000 FOR THE PURPOSE
OF EFFECTING AN ACQUISITION OR PURCHASING A MINORITY INTEREST AS MORE FULLY SET
FORTH IN SUBSECTION 1.8.3 OF THE CREDIT AGREEMENT, SHALL BE ACCOMPANIED BY THE
OFFICERS' CERTIFICATE REQUIRED BY SAID SUBSECTION 1.8.3.)
4. Company hereby requests that the Lenders make a Term A Loan to
Company in
174
the aggregate principal amount of $___________ on _________, 1999.(1) (COMPLETE
WITH AN AMOUNT IN ACCORDANCE WITH SECTION 1.3 OF THE CREDIT AGREEMENT.)
5. Company hereby requests that the Term A Loan bear interest at the
following interest rate, plus the Applicable Margin, as set forth below:
Interest Rate Interest Period Termination Date for
Component (Base Rate or (LIBOR Interest Period
of Loan LIBOR Rate) Rate only) (if applicable)
------- ----------- ---------- ---------------
6. Company hereby requests that the Lenders make a Term B Loan to
Company in the aggregate principal amount of $___________ on _________, 1999.(2)
(COMPLETE WITH AN AMOUNT IN ACCORDANCE WITH SECTION 1.3 OF THE CREDIT
AGREEMENT.)
7. Company hereby requests that the Term B Loan bear interest at the
following interest rate, plus the Applicable Margin, as set forth below:
Interest Rate Interest Period Termination Date for
Component (Base Rate or (LIBOR Interest Period
of Loan LIBOR Rate) Rate only) (if applicable)
------- ----------- ---------- ---------------
8. The principal amount of all Loans, Letters of Credit and
Unreimbursed Drawings outstanding as of the date hereof (including the requested
Loan) does not exceed the maximum amount permitted to be outstanding pursuant to
the terms of the Credit Agreement.
9. Please disburse the proceeds of the Loans requested above by [insert
requested method of disbursement].
10. All of the conditions applicable to the Loans requested herein as
set forth in the Credit Agreement have been satisfied as of the date hereof and
will remain satisfied to the date of such Loans.
11. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
--------
(1) A Term Loan may only be made on the Closing Date.
(2) A Term Loan may only be made on the Closing Date.
-3-
175
[Signature Page Follows]
-4-
176
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Borrowing on behalf of Company this ____ day of _______, ____.
SUSQUEHANNA MEDIA CO.
By:
Name:
Title:
-5-
177
EXHIBIT C
to
Credit Agreement
dated as of ____________ __, ____
by and among
SUSQUEHANNA MEDIA CO.,
as Borrower,
the Lenders party thereto,
and
First Union National Bank,
as Agent
FORM OF NOTICE OF CONVERSION/CONTINUATION
178
NOTICE OF CONVERSION/CONTINUATION
(LIBOR Loans)
Dated as of: ______________
First Union National Bank, as Agent
One South Penn Square
PA 4830
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Associate Director
Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (the "Notice") is
delivered to you under Subsection 1.8.4(a) of the Revolving Credit and Term Loan
Agreement dated as of __________ __, 1999 (as amended, restated or otherwise
modified, the "Credit Agreement"), by and among SUSQUEHANNA MEDIA CO., a
Delaware corporation ("Company"), the lenders party thereto (the "Lenders") and
First Union National Bank, as Agent.
1. This Notice is submitted for the purpose of: (CHECK ONE AND COMPLETE
APPLICABLE INFORMATION IN ACCORDANCE WITH THE CREDIT AGREEMENT.)
Converting all or a portion of a Base Rate Loan into a LIBOR
Rate Loan
(a) The aggregate outstanding principal balance of the
[Revolving Loan] [Term A Loan] [Term B Loan] to be
converted is $_______________.
(b) The principal amount of such Loan to be converted is
$_______________.
(c) The requested effective date of the conversion of
such Loan is _______________.
(d) The requested Interest Period applicable to the
converted Loan is [one] [two][three][six] [months]
[one year].
Converting a portion of LIBOR Rate Loan into a Base Rate
Loan(1)
(a) The aggregate outstanding principal balance of the
[Revolving Loan] [Term A Loan] [Term B Loan] to be
converted is $_______________.
--------
(1) If no election to continue a LIBOR Rate Loan as a new LIBOR Rate Loan is
made prior to the end of the applicable Interest Period, it will be assumed that
the Loan will convert to a Base Rate Loan whether or not this section is
completed.
179
(b) The last day of the current Interest Period for such
Loan is _______________.
(c) The principal amount of such Loan to be converted is
$_______________.
(d) The requested effective date of the conversion of
such Loan is _______________.
Continuing all or a portion of a LIBOR Rate Loan as a LIBOR
Rate Loan
(a) The aggregate outstanding principal balance of the
[Revolving Loan] [Term A Loan] [Term B Loan] to be
converted is $_______________.
(b) The last day of the current Interest Period for such
Loan is _______________.
(c) The principal amount of such Loan to be continued is
$_______________.
(d) The requested effective date of the continuation of
such Loan is _______________.
(e) The requested Interest Period applicable to the
continued Loan is [one] [two][three][six] [months]
[one year].
2. The principal amount of all Loans, Letters of Credit and
Unreimbursed Drawings outstanding as of the date hereof does not exceed the
maximum amount permitted to be outstanding pursuant to the terms of the Credit
Agreement.
3. All of the conditions applicable to the conversion or continuation
of the Loan requested herein as set forth in the Credit Agreement (including,
without limitation, Section 1.8.4 (LIBOR Election) thereof) have been satisfied
or waived as of the date hereof and will remain satisfied or waived to the date
of such Loan.
4. "LIBOR Rate Loan" means a Loan bearing interest based on Adjusted
LIBOR plus the Applicable Margin and "Base Rate Loan" means a Loan bearing
interest based on the Base Rate plus the Applicable Margin. Other capitalized
terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.
[Signature Page Follows]
-3-
180
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation this ____ day of __________, ____.
SUSQUEHANNA MEDIA CO.
By:
Name:
Title:
-4-
181
EXHIBIT D
to
Credit Agreement
dated as of May 11, 1999
by and among
SUSQUEHANNA MEDIA CO.,
as Borrower,
the Lenders party thereto,
and
First Union National Bank,
as Agent
FORM OF OFFICER'S CERTIFICATE
REGARDING APPLICABLE MARGIN
182
OFFICER'S CERTIFICATE
REGARDING APPLICABLE MARGIN
The undersigned, on behalf of SUSQUEHANNA MEDIA CO. ("Company"), hereby
certifies to the Administrative Agent and the Lenders (each as defined in the
Credit Agreement referred to below), as follows:
1. This Certificate is delivered to you pursuant to Section 1.8.3 of
the Revolving Credit and Term Loan Agreement dated as of May __, 1999 (as
amended, restated or otherwise modified, the "Credit Agreement"), by and among
Company, the lenders party thereto and First Union National Bank, as Agent.
Capitalized terms used herein and not defined herein shall have the meanings
assigned thereto in the Credit Agreement.
Company hereby certifies:
1. There exists no Event of Default or Potential Event of
Default.
2. Effective ______, the Applicable Margins and Commitment Fees
will be as set forth below. This [is] [is not] a change from the existing
Applicable Margins.
REVOLVING LOANS
AND TERM A LOANS TERM B LOANS
---------------- ------------
Applicable Margin for Base Rate Loans:
Applicable Margin for LIBOR Loans:
Commitment Fee Rate:
3. The calculations determining such Applicable Margins and Commitment
Fees are set forth on the attached Schedule 1.
4. Company is in compliance with the financial covenants contained in
Article 6 of the Credit Agreement and Company and its Subsidiaries are in
compliance with the other covenants and restrictions contained in the Credit
Agreement.
[5. This Certificate is delivered to you in connection with a request
for a Loan, or one in a series of related Loans, in an amount in excess of
$25,000,000 for the purpose of effecting an Acquisition or purchasing a minority
interest in any direct or indirect Subsidiary of Company. The calculations set
forth on Schedule 1 are on a Pro Forma Basis after giving effect to the
183
proposed Loan and transactions contemplated in connection therewith.]
[6. This Certificate is delivered to you in connection with a
disposition of assets in accordance with Section 7.7 of the Credit Agreement and
a prepayment of the Loans in accordance with [Subsection 1.1.5] [Subsection
1.3.6] of the Credit Agreement in an amount in excess of $25,000,000 (whether in
one prepayment or a series of related prepayments). The calculations set forth
on Schedule 1 are on a Pro Forma Basis after giving effect to the proposed
prepayment of the Loans, the disposition of the assets and transactions
contemplated in connection therewith.
WITNESS the following signature as of the _____ day of _________, ____.
SUSQUEHANNA MEDIA CO.
By:
Name:
Title:
-3-
184
SCHEDULE 1
to
OFFICER'S CERTIFICATE
REGARDING APPLICABLE MARGIN
185
SECURITY AGREEMENT
SECURITY AGREEMENT made as of the 12th day of May, 1999, by and between
SUSQUEHANNA MEDIA CO. (the "Borrower"), and all of its Subsidiaries (other than
Paragon Research Limited Partnership ("Paragon")), which are listed on the
signature pages to this Security Agreement (the foregoing, including the
Borrower, together with any other entity that becomes a Debtor hereunder
pursuant to the terms hereof, individually a "Debtor" and collectively the
"Debtors"), and FIRST UNION NATIONAL BANK, a national banking association as
agent on behalf of the Senior Secured Parties (as defined in the Credit
Agreement). First Union National Bank in its capacity as agent hereunder,
including its successors and assigns, is hereinafter referred to as "Agent."
BACKGROUND OF AGREEMENT
On the date hereof certain lenders and issuers of letters of credit and
FIRST UNION NATIONAL BANK as agent have entered into a Credit Agreement (as
amended, extended, supplemented, restated, or otherwise modified or refinanced,
including, without limitation, any amendment involving an increase in principal,
interest rate or other amount, the "Credit Agreement") with the Borrower,
pursuant to which such lenders and issuers agreed to extend certain credit to
the Borrower upon the terms and conditions specified in the Credit Agreement
under (1) a Revolving Credit Facility with a swing line subfacility, and (2) two
separate Term Loan Facilities and to issue, and/or participate in the issuance
of, certain letters of credit. In addition, the Credit Agreement under certain
circumstances requires the Borrower to enter into certain interest rate hedging
agreements.
Each of the Debtors (other than the Borrower itself) is a Subsidiary,
direct or indirect, of the Borrower. The Subsidiaries, wishing to induce the
certain lenders and issuers of letters of credit to enter into the financings
described above to enable the Borrower to (among other things) make loans to
them, and the Borrower and the Subsidiaries having determined that they can
obtain their borrowings more economically by combining their financing needs
into a single borrowing unit on the parent company level, borrowing funds from
institutional lenders on that basis, and then entering into the requisite
intercompany financings, the Subsidiaries other than Paragon agreed to jointly
and severally guaranty the Borrower's obligations under and in connection with
the Credit Agreement and to grant the liens set forth below in order to
facilitate such financings. Each Debtor determined that it was in its best
interests and in pursuant of its business purposes that it do so and that it was
and will be Solvent before and after giving effect to the transactions
contemplated by the Credit Agreement.
One of the prerequisites to the making of advances and the issuing of
letters of credit by the certain lenders and issuers under the Credit Agreement
was that the Debtors enter into this Security Agreement and grant to the Agent
for the benefit of the Senior Secured Parties a security interest in and to
substantially all of their assets, properties and rights (as more fully
186
described below) to secure the obligations of the Debtors under the Credit
Agreement and certain related documents and agreements as more fully set forth
below.
NOW, THEREFORE, the Debtors, jointly and severally, intending to be
legally bound hereby, and in consideration of the mutual covenants herein
contained and other good and valuable consideration receipt of which is hereby
acknowledged, agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in, or by reference in, the Credit
Agreement or (except for the definition of "Proceeds" which is defined more
broadly herein than in the Uniform Commercial Code) in the Uniform Commercial
Code. The following terms shall have the following meanings:
"Collateral" shall mean (without duplication):
(a) all franchises, including without limitation, all cable
television franchises and rights, all FCC licenses (including without
limitation, all radio broadcast licenses), all rights to operate any
telecommunications business and all other franchises now or hereafter granted by
any local franchising authority or any other local, state or federal authority
or other entity, including, without limitation, those franchises and licenses
described in Schedule 9.9 to the Credit Agreement, and all other authorizations,
licenses, permits and franchises;
(b) all Equipment and Fixtures, including without limitation
(and whether or not the same constitutes Equipment or Fixtures), all machinery,
furniture, antennas, towers, systems or apparatus, microwave equipment,
electronic amplification transmission and filtering equipment, coaxial cable (in
stock, underground and affixed to utility poles), subscriber connection
equipment, office equipment, computers, electronic testing equipment, electronic
communications equipment, transmitting equipment, wiring, appliances, cable
connections, pole attachment appliances and, with respect to all of the
foregoing, all accessions, parts, substitutions, improvements, accessories,
replacements, additions, renewals, filings, components, tools, dies, patterns,
molds, attachments, and appurtenances in any way used with, attached or related
to, or installed in, or intended to be so used, attached, related to or
installed in, any of the foregoing;
(c) all Accounts and Chattel Paper of whatever kind or nature,
including without limitation (and whether or not the same constitute Accounts or
Chattel Paper), all accounts receivable and rights to receive money of any kind
including, without limitation, all accounts, notes receivable arising out of,
existing or acquired in connection with the operation of one or more cable
television systems, radio broadcast systems, or any other activities of such
Debtor;
(d) all contract rights of any nature including, without
limitation, all leases (for real property, personal property or a combination
thereof), licenses, easements and
-2-
187
agreements permitting the attachment of coaxial cable to utility poles or in
underground or similar conduits or granting access rights as to such able (such
as cable duct agreements, multidwelling unit agreements, pole attachment
agreements and equipment/cost sharing agreements), all contracts for goods or
services, all network affiliation, programming, advertising and similar
agreements and all agreements with common carriers or others for the
transmission and delivery of programming, Internet access or other services to
subscribers (all such property described in this clause (d) collectively, the
"Contracts");
(e) All General Intangibles, including, without limitation
(and whether or not the same constitute General Intangibles), all of the items
referred to in paragraphs (a) and (d) above and all partnership and other equity
interests, intellectual property and intangibles, manufacturing and processing
rights, patents, patent rights, licenses, trademarks and service marks,
goodwill, trade names, other names, trade styles, trade dress, call letters,
trade secrets, copyrights, rights to receive payment of money of any kind,
invoices, brands, license agreements and rights, confidential or proprietary
information, know-how, secret formulas, technical information, computer
software, programs, source code, object code, tape disks and related materials,
business and marketing plans, customer lists, registrations and applications
thereafter, logos and slogans and tax and other refunds, together with any
certificates, agreements, instruments or other documents of any nature
evidencing or related to the foregoing;
(f) all Goods, Inventory and Documents, including, without
limitation (and whether or not the same constitute Goods, Inventory or
Documents), the items referred to in paragraph (b) above, warehouse receipts,
bills of lading, telephones, and satellite dishes, together with all deeds,
bills of sale, manuals of operation, maintenance or repair, computer records,
printouts, drawings, blueprints and other documents and written materials
related thereto;
(g) all Instruments, Deposit Accounts, Investment Property,
cash and cash equivalents, including without limitation (and whether or not the
same constitute Investment Property or cash or cash equivalents), Securities,
Securities Entitlements, Securities Accounts, Commodities Contracts, Commodities
Accounts and mortgages, provided, however, that the note in respect of the ESOP
Loan (as defined in the Credit Agreement) shall not constitute collateral;
(h) all books, ledgers, computerized information, records of
any kind and other personal property, assets and things of value of every kind
and nature, tangible or intangible, absolute or contingent, legal or equitable;
(i) all Proceeds of any of the foregoing.
If for any reason any security interest in any of the property described in (a)
through (i) above is deemed invalid, the Senior Secured Party nonetheless shall
have and retain a security interest in the Proceeds of such assets.
All the property described in (a) through (i) above, whether now owned or
hereafter acquired, and wherever located, tangible or intangible, is
collectively referred to herein as the "Collateral."
-3-
188
"Event of Default" hereunder shall mean any "Event of Default"
as defined in the Credit Agreement, but in any event shall include (a) any
failure to make any payment in respect of the Senior Secured Obligations within
the applicable grace period, if any, related thereto; (b) any breach of any
covenant contained in the Credit Agreement which shall remain in effect beyond
the applicable grace period, if any, related thereto; and (c) any breach of any
covenant by the Borrower or any of its Subsidiaries under any of the Loan
Documents, which breach shall remain in effect past the applicable grace period,
if any, related thereto.
"FCC" shall mean the Federal Communications Commission or any
governmental body succeeding to the functions of such commission.
"FCC License" shall mean any radio, microwave, or other
communications license, permit, certificate of compliance, franchise, approval
or authorization granted or issued by the FCC for control, ownership,
acquisition, construction, operation, management or maintenance of Systems.
"Franchise" shall mean a franchise, permit or license
(including, without limitation, an FCC License), designation or certificate
granted by the United States or any other country, territory or state or a city,
town, county or other municipality, PUC or any other regulatory authority
pursuant to which a Person has the right to own, control, acquire, construct,
operate, manage or maintain a domestic cable television system, radio
broadcasting system or business directly related thereto.
"Lien" shall mean, as to any Person, any mortgage, lien,
pledge, adverse claim, charge, security interest or other encumbrance in or on,
or any interest or title of any vendor, lessor, lender or other Senior Secured
Party to or of such Person under any conditional sale or other title retention
agreement or capital lease with respect to, any property or asset of such
Person.
"Proceeds" shall mean both proceeds within the meaning of the
Uniform Commercial Code and, in addition, the proceeds of any sale or other
disposition of any assets in which any Debtor has an interest whether or not
such assets constitute Collateral and any other rights to receive money or other
consideration in respect of any asset, including all rights to receive moneys
due to the Debtors in connection with any sale or other disposition and, in any
event, shall include without limitation (i) any and all proceeds of any
guarantee, insurance or indemnity payable to a Debtor from time to time with
respect to any of the Collateral; (ii) any and all payments (in any form
whatsoever) made or due and payable to a Debtor from time to time in connection
with any requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Collateral by any governmental authority (or any person
acting under color of governmental authority); (iii) all proceeds of any sale or
other disposition of any of the Collateral and of any of the assets, properties
and rights whether or not such assets, properties or rights constitute
Collateral and whether or not the lien therein purportedly granted hereunder is
valid or attaches or is perfected; and (iv) any and all other amounts from time
to time paid or payable with respect to or in connection with any of the
Collateral.
-4-
189
"PUC" shall mean any state or local regulatory agency or body
that exercises jurisdiction over the ownership, construction, operation,
acquisition, management or maintenance of domestic cable television systems,
radio broadcasting systems or businesses directly related thereto.
"Systems" means any domestic cable television systems, radio
broadcasting systems, businesses related thereto and any other
telecommunications systems.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code, as amended, as is in effect in the Commonwealth of Pennsylvania or in any
applicable state, as the case may be.
SECTION 2. CREATION OF SECURITY INTEREST
(a) As security for the due and punctual payment and performance in full of each
and all of the Senior Secured Obligations, each Debtor hereby hypothecates,
pledges, assigns, sets over and delivers unto the Agent, and grants to the
Agent, for the equal (in priority) and ratable benefit of the Senior Secured
Parties, a continuing first priority security interest in all its right, title
and interest in, to and under each item and portion of and all of the
Collateral, TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Agent, pursuant to the terms, covenants and conditions hereinafter set
forth.
(b) This Security Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until terminated
pursuant to Section 10 below, (ii) be binding upon each Debtor, its successors
and assigns, and (iii) inure to the benefit of the Agent, the other Senior
Secured Parties and their respective successors, transferees and assigns,
provided, however, that no Debtor shall be permitted to transfer or delegate any
of its obligations hereunder.
SECTION 3. ACKNOWLEDGEMENT OF REGULATORY CONSIDERATIONS; UNIQUE NATURE OF ASSETS
3.1 FCC/PUC Approval. It is hereby acknowledged that transfer of certain
Collateral and the exercise of certain other remedies provided herein may
constitute a transfer of an FCC License or other Franchise or a sale or transfer
of control of a holder of an FCC License or other Franchise, requiring approval
of the FCC or a PUC, pursuant to rules and regulations of the FCC or such PUC.
Notwithstanding anything to the contrary contained in this Agreement, the Agent
will not knowingly take any action pursuant to this Agreement which would
constitute or result in assignment of an FCC License or other Franchise or any
transfer of control of the holder of an FCC License or other Franchise if such
assignment of license or transfer of control would require under then existing
law (including the written rules and regulations promulgated by the FCC or any
PUC), the prior approval of the FCC or such PUC, without first obtaining such
approval. In connection with this provision, the Agent shall be entitled to rely
without liability upon the advice of counsel of Agent's choice whether or not
the advice rendered is ultimately determined
-5-
190
to have been accurate.
3.2 FCC Licenses. With respect to any FCC License held by a Debtor, currently
applicable law may render the grant of a security interest in any such FCC
License ineffective. The grant contained herein is intended to confer upon the
Agent all rights in the FCC Licenses which can be granted under currently
applicable law. If the law is subsequently changed or interpretation of existing
law is changed to permit the granting of security interests in the FCC Licenses,
then the Debtor's FCC Licenses, whether now held or hereafter acquired, shall
automatically become subject to the effective security interest provided for
hereunder to the maximum extent permitted by the law as then in effect. To the
extent applicable law permits, a security interest in all Proceeds of the FCC
Licenses is intended to be granted hereby even if there is a limitation of the
Agent's rights with respect to its security interest in the FCC Licenses.
3.3 Debtor and Subsidiary of Debtor Assistance in Obtaining Approval. Without
limiting the generality of Sections 3.1 and 3.2 above, if counsel to the Agent
reasonably determines that the consent of the FCC or a PUC is required in
connection with any of the actions hereunder or under any other Loan Document,
then each Debtor and each Subsidiary thereof (at its cost and expense) agrees to
use its best efforts to secure such consent and to cooperate fully with the
Agent in any action to secure such consent. Without limiting the generality of
the foregoing, after an Event of Default has occurred and is continuing each
Debtor and each Subsidiary thereof shall promptly execute and file and/or cause
the execution and filing of all applications, certificates, instruments, and
other documents and papers that the Agent deems necessary or advisable to file
in order to obtain any necessary governmental consent, approval, or
authorization, and if Borrower, any Debtor or any Subsidiary thereof fails or
refuses to execute (or fails or refuses to cause another Person to execute) such
documents, the Agent or the clerk of any court of competent jurisdiction may
execute and file the same on behalf of the Debtor or such other Person.
3.4 Unique Nature of Assets. It is agreed that the FCC Licenses and other
Franchises held by each Debtor and its Subsidiaries are unique assets which (or
the control of which) may have to be transferred for the Agent to adequately
realize the value of its security interest. A violation of the covenants set
forth in this Section would result in irreparable harm to the Agent for which
monetary damages are not readily ascertainable. Therefore, in addition to any
other remedy which may be available to the Agent at law or in equity, Agent
shall have the remedy of specific performance of the provisions of this Section.
To enforce the provisions of this Section, the Agent is authorized to request
the consent or approval of the FCC or any PUC to a voluntary or an involuntary
transfer of control of any FCC License or other Franchise or sale or transfer of
control of a holder of an FCC License or other Franchise.
3.5 Selection by Collateral Agent of Different Transferee. If, for any reason,
the FCC or a PUC does not approve within a reasonable period of time (which
period shall be determined conclusively by the Agent), the initial application
for approval of the transfer of the Collateral, the Agent shall then have the
right to transfer the Collateral to such other Person as the Agent shall select
(subject to the prior approval of the FCC or such PUC). With respect to such
subsequent selection, each Debtor agrees to cooperate fully in the manner set
forth above. Exercise by the
-6-
191
Agent of the right to such cooperation shall not be exhausted by the initial or
any subsequent exercise thereof.
3.6 Responsibility of Secured Party. It is the intent of the parties that the
Agent will not, solely by reason of the execution, delivery and performance of
this Security Agreement (other than the enforcement of certain remedies) or any
other instrument or agreement referred to herein, be subject to the regulation
or control of the FCC or any PUC. Neither the Agent nor any Senior Secured Party
shall incur any liability in connection with the matters described in this
Section except for such liability as arose solely out of its gross negligence or
willful misconduct as finally determined by a court of competent jurisdiction.
3.7 Certain Consents. The parties acknowledge that certain General Intangibles
are not assignable, or are not assignable without the consent of certain third
parties, and nothing in this Agreement shall be construed in such a manner as to
cause the Debtors to lose their rights with respect to those General Intangibles
or to incur liability to third parties in connection with the security interest
granted hereunder. However, the Debtors represent that the necessary third party
consents that have not been obtained do not affect the rights of the Agent and
the Senior Secured Parties under this Agreement with respect to any material
amount of the assets of the Debtors.
SECTION 4. REPRESENTATIONS AND COVENANTS OF DEBTORS
Each Debtor represents and warrants that each representation,
warranty and covenant set forth in the Loan Documents that relates to or refers
to a Debtor or the Collateral subject hereto (or, in either case, any other term
that is used with the same or similar meaning) is incorporated herein by
reference and is true and correct on and as of the date hereof and shall be
performed after the date hereof. Without limiting the generality of the
foregoing, each Debtor further represents, warrants and covenants as follows:
4.1 Locations of Debtors and Collateral. The principal place of business and all
additional places of business, if any, of each Debtor and the locations of
substantially all the Collateral and the locations where all books and records
of each Debtor are kept are listed on Schedule 4.1 attached hereto. Each Debtor
will not change its principal place of business or any other place of business
or keep Collateral at any location not listed on Schedule 4.1 without taking
such action as is necessary to maintain the perfected status of the Senior
Secured Parties' security interest in the Collateral.
4.2 Head-End Facilities and Broadcast Towers. Without limiting the generality of
the provisions set forth in the preceding Section 4.1, no Debtor will cause or
permit any of its head-end facilities or broadcast towers to be located
otherwise than as set forth on Schedule 4.1, without taking all such action as
is necessary to maintain the perfected status of the Senior Secured Parties'
security interest therein. Schedule 4.1 also sets forth the locations of such
head-end facilities and towers to the extent available from the Debtors'
records.
4.3 Security Interest, Perfection, Etc.
-7-
192
(a) Security Interest. This Security Agreement creates in favor of the Senior
Secured Parties, a valid security interest in all the right, title and interest
of each Debtor in and to all of the Collateral.
(b) Perfection, Etc. Upon the filing of the UCC-1 financing statements in the
jurisdictions listed on Schedule 4.1, no further action is or will be necessary
to establish, perfect and maintain the Senior Secured Parties' duly perfected
security interests in the Collateral, except for the periodic filing of
continuation statements with respect to such UCC-1 financing statements that
must be filed at the end of five (5) years to maintain the perfected status of
certain Collateral. The security interest granted herein is a first priority
Lien, subject only to Permitted Liens and subject to, with respect to certain
leased property, the rights of certain lessors.
4.4 UCC Filings, Recordings, Etc. Each Debtor has previously executed and
delivered to the Agent the financing statements referred to in Section 4.3 above
and will cause such financing statements to be filed and all fees in connection
therewith to be paid. Each Debtor will, from time to time, execute and cause to
be filed such additional financing statements (and provide copies to the Agent)
and perform such other and further acts as may be necessary to perfect the
security interests contemplated hereby. Upon request of the Agent at any time
(which request has not been made as of the Closing Date), each Debtor shall
cause notations of the security interest created hereby to be made on
certificates of title with respect of any vehicles now or hereafter from time to
time constituting Collateral.
4.5 Disposition and Condition of Collateral. No Debtor will sell, lease or
otherwise dispose of any of the Collateral or any interest therein (including,
without limitation, pursuant to the grant of a Lien thereon), except as
specifically permitted under the terms of the Credit Agreement, and each Debtor
will keep the Collateral owned, leased or used by it in such order as is
required by the Credit Agreement.
4.6 Fixtures. It is the intention of the Debtors and the Agent that none of the
Collateral shall become fixtures, and without limiting the generality of the
foregoing, each Debtor agrees that it will, if requested by the Agent, use its
best efforts to obtain waivers of liens and claims in form reasonably
satisfactory to the Agent, from each lessor, landlord, mortgagee, co-owner,
encumbrancer and other party in interest with respect to real property on which
any of the Collateral is or is to be located, and, if so requested, will obtain
a legal description of such real property together with a reasonably detailed
description of the Collateral attached thereto or otherwise located thereon.
4.7 Further Assurances. At the Debtors' sole cost and expense (after a Potential
Event of Default or Event of Default or, if applicable, prior to such time) at
the request of the Agent each Debtor will at any time and from time to time,
duly and promptly execute and deliver or cause to be duly executed and delivered
to the Agent such further instruments and documents, and do or cause to be done
such further acts as may be necessary or proper in the sole discretion of the
Agent, to carry out more effectively the provisions and purposes of this
Security Agreement and to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Agent to exercise and enforce
its rights and remedies hereunder with respect to any Collateral including,
-8-
193
without limitation, (a) using its best efforts to cooperate in obtaining any
FCC, PUC, or other governmental approval of any action or transaction
contemplated hereby or thereby (it being understood that no application for
transfer of any franchise or other FCC License is contemplated hereby prior to
an Event of Default); (b) using its best efforts to cause any third parties to
grant consents or approvals and obtaining and recording assignments respecting
the Contracts, (c) using its best efforts to obtain landlord's consents and
waivers, memoranda of lease and mortgagee waivers, all in recordable form and
otherwise satisfactory to the Agent, (d) executing and delivering security
agreements relating to intellectual property and related documents to be
recorded with the Patent & Trademark Office.
4.8 General Representations and Warranties.
(a) Title to Collateral. Each Debtor has, and at all times will continue to
have, good legal and equitable title to all of the Collateral now or hereafter
purported to be owned by it, subject to no Liens except Permitted Liens.
(b) Right to Pledge; Defense of Title. Each Debtor (i) has, and at all times
will have, the right and legal authority to pledge the Collateral in the manner
hereby contemplated and (ii) will defend its and the Senior Secured Parties'
respective title and interest thereto or therein against any and all
attachments, claims, impediments and (without duplication) Liens of any nature
howsoever arising except Permitted Liens.
(c) Absence of Conflicts. The execution and delivery of this Security Agreement,
the consummation of the transactions contemplated hereby and compliance with the
terms and provisions hereof, will not (x) violate any provision of law or any
injunction or any applicable regulation, order, writ, judgment or decree of any
court or governmental department, commission, board, bureau, agency or
instrumentality applicable to any Debtor, or (y) conflict or be inconsistent
with, or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to impose) any Lien, other than the Liens
created hereunder, upon any of the property or assets of any Debtor, pursuant to
the terms of any agreement, indenture, franchise, license, permit, mortgage or
deed of trust to which any Debtor is a party or by which it may be bound or
subject, or (z) violate any of the provisions of the articles of incorporation,
bylaws or other organizational documents of any Debtor. No material consents
(other than those that have been duly obtained) are required for the execution,
delivery and performance of this Agreement including the creation of the first
priority security interest in the Collateral, which is subject to any Permitted
Liens.
(d) Binding Obligations. This Security Agreement constitutes the authorized,
valid and legally binding obligations of each Debtor, enforceable in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
(e) Representations. All representations herein and all information herein and
Exhibits hereto are true, correct and complete. Debtors shall promptly update
all Exhibits hereto so they are at all times true, correct and complete.
-9-
194
4.9 Inspection. Each of the Debtors will keep accurate and complete
books and records concerning the Collateral, and will keep its books and records
concerning its Inventory in accordance with GAAP. The Agent shall have the right
to review the books and records of each of the Debtors concerning the Collateral
and to copy the same and make excerpts therefrom, and to inspect the Collateral,
at any time during regular business hours; except during the continuance of an
Event of Default, such review and inspection shall be carried out upon
reasonable prior written notice without substantial disruption of the operations
of each of the Debtors. In particular, each of the Debtors shall furnish to the
Agent at such times and in such form and substance as may be reasonably
requested by the Agent, information concerning the unpaid invoiced amounts and
the age and collectibility of the Accounts and Contracts, the names and
addresses of those liable herein (the "Account Debtors"), the location, cost and
fair market value of the Inventory, and such information as the Agent may deem
relevant concerning the Proceeds received or receivable by the Debtors.
SECTION 5. INSURANCE AND PROCEEDS
5.1 Risk of Loss; Insurance.
(a) Risk of loss of, damage to, or destruction of, the Collateral shall be on
each of the Debtors at all times. Each of the Debtors shall maintain all risk
hazard insurance on the Collateral at all times against loss or damage by fire
and other casualty, with extended coverage, for their insurable value with
replacement cost endorsement. All policies of insurance covering the Collateral
shall contain loss payable clauses in favor of the Agent for the benefit of the
Senior Secured Parties as its interest may appear. Certificates evidencing the
policies covering the Collateral as well as all renewals and modifications
thereof, providing for thirty (30) days' notice of cancellation or other lapse
to the Agent, shall be delivered to the Agent. If any of the Debtors fails to
obtain and continuously keep in full force and effect such insurance, or fails
to pay the premiums thereon when due, the Agent may (but shall not be obligated
to) do so for the account of such Debtors and the cost thereof shall be added to
the Obligations.
(b) Each of the Debtors hereby assigns and sets over unto the Agent all moneys
which may become payable on account of such insurance, excluding any return of
unearned premiums which may be due upon cancellation of any such insurance, and
irrevocably directs the insurers to pay the Agent any amount so due to the
extent provided below. In the event of any casualty loss of any Collateral:
(i) If the loss is in excess of $250,000, the Debtors will give notice thereof
within three (3) Business Days to the Agent, and the Agent may make proof of
loss if not made promptly by Debtors;
(ii) any adjustment of a proof of loss exceeding such amount by an amount in
excess of $ 1,000,000 shall require the prior written consent of the Agent;
(iii) the Agent, its officers, employees and authorized agents are hereby
irrevocably appointed the attorneys-in-fact of each of the Debtors to endorse
any draft or check which may be payable to it
-10-
195
as set forth in paragraph (c) below in order to collect the proceeds of such
insurance or any return of unearned premiums; and
(iv) any sum paid with respect to any casualty loss shall be paid directly to
the Agent (and if nonetheless received by any of the Debtors, shall be held in
trust for the Agent until paid over) to the extent provided by paragraph (c)
below.
(c) Any proceeds or return which are paid with respect to any casualty loss with
respect to which the higher of the insurance proceeds therefor or the
replacement cost thereof exceeds $5,000,000 (a "Major Casualty Loss"), or,
regardless of amount, during the continuance of an Event of Default, may be
applied in whole or in part, as deemed desirable by the Agent in the exercise of
its reasonable discretion, toward (i) the repair or replacement of any property
or assets of any of the Debtors that have been damaged or destroyed and in
respect of which the insurance proceeds were payable, or (ii) the payment or
prepayment of any of the Senior Secured Obligations, whether or not otherwise
due. Any balance of insurance proceeds remaining in the possession of the Agent
after payment in full of the Senior Secured Obligations shall be paid to the
appropriate Debtor.
(d) If subsection (c) above is not applicable, all insurance proceeds or return
shall be promptly applied by the Debtors toward the replacement of the property
that has been damaged or destroyed.
5.2 Operating Account Consent Letter. During continuance of a Potential
Event of Default or Event of Default, at Agent's request, each of the Debtors
will promptly execute and deliver to the Agent an Operating Account Consent
Letter executed by each bank at which any of the Debtors has an account, in the
form of Schedule 5.2 annexed hereto.
5.3 Proceeds of Collateral Disposition. During the continuance of a
Potential Event of Default or an Event of Default, at the Agent's request, each
or all of the Debtors shall establish and maintain at all times a trust account
with the Agent, and all Proceeds before or after an Event of Default, shall be
deposited directly and immediately into such account. The Debtors shall be
responsible for all costs and fees arising with respect to such account at the
standard rates. Each of the Debtors expressly and irrevocably authorizes and
consents to the ability of the Agent to charge the account, in its sole
discretion, and recover from the funds on deposit therein, from time to time and
at any time, and apply those funds against any and all Senior Secured
Obligations. All Senior Secured Obligations, as well as chargebacks to any
Debtor for protested remittances, negative float charges and other such items,
may also be charged as Advances by the Senior Secured Parties to the Borrower to
be repaid in accordance with the Loan Documents. All funds in the possession of
any Senior Secured Party pursuant to this Section or otherwise, whether in the
account referred to herein, a lock-box, any Senior Secured Party's general
ledger account or any concentration or operating account of any Debtor, are
hereby pledged to the Agent for the benefit of the Senior Secured Parties as
Collateral for the payment of the Senior Secured Obligations, independent of any
right of banker's lien or set-off.
SECTION 6. RIGHTS AND LIABILITIES OF COLLATERAL AGENT AND
-11-
196
SECURED PARTIES
6.1 Appointment as Attorney-in-fact. Effective upon the occurrence of an Event
of Default, and so long as Agent reasonably believes such Event of Default is
continuing, each Debtor hereby appoints the Agent as its true and lawful agent,
proxy, and attorney-in-fact for the purpose of carrying out this Security
Agreement and taking any action and executing any instrument which the Agent may
deem necessary or advisable to accomplish the purposes hereof including, without
limitation, the execution on behalf of each Debtor of any financing or
continuation statement with respect to the security interest created hereby and
the endorsement of any drafts or orders which may be payable to a Debtor in
respect of, arising out of, or relating to any or all of the Collateral. This
power shall be valid until the termination of the security interests created
hereunder, any limitation under law as to the length or validity of a proxy to
the contrary notwithstanding. This appointment is irrevocable and coupled with
an interest and any proxies heretofore given by any Debtor to any other Person
are revoked. The designation set forth herein shall be deemed to amend and
supersede any inconsistent provision in the articles of incorporation, bylaws or
other documents to which any Debtor or any Subsidiary of a Debtor is subject or
to which any is a party.
6.2 Performance of Debtor's Duties. In furtherance, and not by way of
limitation, of the foregoing Section 6.1 if (at any time either before or after
the occurrence of an Event of Default) a Debtor fails to perform any agreement
contained herein, the Agent may (but under no circumstance is obligated to)
perform such agreement and any expenses incurred shall be payable by the Debtors
and shall be Senior Secured Obligations; provided, however, that nothing herein
shall be deemed to relieve a Debtor from fulfilling any of its obligations
hereunder.
6.3 Acts May Be Performed By Agents and Employees. Any act of the Agent to be
performed pursuant to this Section 6 or elsewhere in this Security Agreement may
be performed by agents or employees of the Agent.
6.4 In General. No act or omission of any Senior Secured Party (or agent or
employee thereof) shall give rise to any defense, counterclaim or offset in
favor of a Debtor or any claim or action against any such Senior Secured Party
(or agent or employee thereof), in the absence of gross negligence or willful
misconduct of such Senior Secured Party as determined in a final, nonappealable
judgment of a court of competent jurisdiction. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which the Agent accords to its own property, it being understood that it
has no duty to take any action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral or to preserve
any rights of any parties and shall only be liable for losses that are a result
of its gross negligence or willful misconduct as determined in a final,
nonappealable judgment of a court of competent jurisdiction.
6.5 Reliance on Advice of Counsel. In taking any action under this Security
Agreement, the Agent shall be entitled to rely upon the advice of counsel of
Agent's choice and shall be fully protected in acting on such advice whether or
not the advice rendered is ultimately determined to have
-12-
197
been accurate.
6.6 Duties Respecting Collateral, etc. Neither the Agent nor any other Senior
Secured Party shall be under any duty or liability with respect to the
Collateral, other than to use reasonable care to prevent the damage or
destruction thereof while in its own possession or control. Anything herein or
in any other Loan Document to the contrary notwithstanding, neither the Agent
nor any other Senior Secured Party shall have any obligation or liability by
reason of or arising out of this Security Agreement to make any inquiry as to
the nature or sufficiency of, to present or file any claim with respect to, or
to take any action to collect or enforce the payment of, any amounts to which it
may be entitled at any time or times by virtue of this Security Agreement.
Neither the Agent nor any other Senior Secured Party makes any representations
or warranties with respect to the Collateral or any part thereof, nor shall it
be chargeable with any obligations or liabilities of any Debtor or any other
Person with respect thereto. Neither the Agent nor any other Senior Secured
Party shall have any liability or obligation arising out of any claims with
respect to the Collateral settled by any such person. Neither the Agent nor any
other Senior Secured Party shall incur any liability to any Debtor or any other
Person for the care or maintenance of the Collateral or any actions (or failure
to act) of the Senior Secured Party in connection with the Collateral or in
connection with this Security Agreement, except for the gross negligence or
willful misconduct of such Person as finally determined by a court of competent
jurisdiction.
6.7 This Security Agreement is executed only as security for the Senior Secured
Obligations. THEREFORE (NOTWITHSTANDING ANYTHING ELSE SET FORTH IN THIS SECURITY
AGREEMENT WHICH, IF INCONSISTENT WITH THIS SECTION, SHALL BE DEEMED MODIFIED TO
THE EXTENT NECESSARY TO BE CONSISTENT WITH THIS SECTION), THE EXECUTION AND
DELIVERY OF THIS AGREEMENT SHALL NOT SUBJECT THE AGENT OR THE OTHER SENIOR
SECURED PARTIES TO, OR IN ANY WAY RELIEVE ANY DEBTOR OF, ANY LIABILITY OR
OBLIGATION RELATING TO, OR ARISING FROM, THE COLLATERAL. IT IS UNDERSTOOD AND
AGREED THAT, NOTWITHSTANDING THIS SECURITY AGREEMENT, ALL THE DEBTORS'
LIABILITIES OR OTHER OBLIGATIONS RELATING TO ANY COLLATERAL SHALL BE AND REMAIN
ENFORCEABLE AGAINST, BUT ONLY AGAINST THE DEBTORS, UNLESS AND TO THE EXTENT,
AFTER AN EVENT OF DEFAULT, NOTICE IS GIVEN BY THE AGENT AND APPROPRIATE ACTION
IS TAKEN TO TRANSFER THE INTEREST IN THE SUBJECT COLLATERAL TO A PERSON
DESIGNATED BY THE AGENT, WHICH SPECIFICALLY ASSUMES CERTAIN LIABILITIES.
SECTION 7. DEFAULT
In addition to any other rights accorded to the Agent and the
Senior Secured Parties hereunder, under the Loan Documents or under applicable
law, upon the occurrence and during the continuation of an Event of Default:
7.1 In General.
(a) The Agent shall have all the rights and remedies of a Senior Secured Party
under the Uniform
-13-
198
Commercial Code, as amended, or under any other applicable law and all rights
and remedies under the Loan Documents and other agreements. In any event, to the
fullest extent permitted by applicable law, the Agent shall have the right
(without any obligation) to seek performance of any guaranty or resort to any
other security, right or remedy granted to it, to take possession of the
Collateral, to enter upon any premises on which the Collateral or any part
thereof may be situated and to remove the same therefrom, to receive, collect,
appropriate and realize upon the Collateral or any part thereof, and to sell,
assign, give an option or options to purchase, contract to sell or otherwise
dispose of and deliver the Collateral or any part thereof, in one or more
parcels at public or private sale or sales, at any exchange, brokers board or
otherwise, for cash, upon credit or for future delivery, as the Agent may
determine. The Agent may require the Debtor to assemble and to make the
Collateral available to the Agent at a place to be designated by the Agent in a
commercially reasonable manner.
(b) The Agent shall have the right, with full power of substitution either in
the Agent's name or the name of a Debtor, to ask for, demand, xxx, collect and
receive any and all moneys due or to become due under and by virtue of the
Collateral and to settle, compromise, prosecute or defend any action, claim or
proceeding with respect thereto, provided, however, that nothing herein shall be
construed as requiring the Agent to take any action, including, without
limitation, requiring or obligating the Agent to make any inquiry as to the
nature or sufficiency of any payment received, or to present or file any claim
or notice, or to take any action with respect to the Collateral or any part
thereof or the moneys due or to become due in respect thereof or any property
covered thereby.
7.2 Public or Private Sale. Unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, the Agent will give the Debtor or Debtors which own the specific
property of which the Agent intends to dispose at least ten (10) Business Days'
prior notice of the time and place of any public sale thereof or of the time
after which any private sale or any other intended disposition thereof is to be
made. Any such notice shall be deemed to meet any requirement hereunder or under
any applicable law (including the Uniform Commercial Code) that reasonable
notification be given of the time and place of such sale or other disposition.
7.3 Purchasers at Sale. At any public or private sale, the Agent, or any other
Senior Secured Party may, to the fullest extent permitted by applicable law, bid
for and purchase the Collateral offered for sale and, upon compliance with the
terms of such sale, may hold, retain and dispose of such property without
further accountability therefor to the Debtors or any other party. The receipt
given by such Senior Secured Party for purchase money paid at any sale shall be
a sufficient discharge therefor to any purchaser of all or any part of the
Collateral sold. No such purchaser, after paying such purchase money and
receiving such receipt, shall be bound in such capacity to see to the
application of such purchase money or any part thereof, or in any manner be
answerable for any loss, misapplication or nonapplication of any such purchase
money, or any part thereof, or be bound to inquire as to the authorization,
necessity, expediency or regularity of any such sale. Each such purchaser at any
such sale shall hold the property so sold absolutely free from any claim or
right on the part of the Debtors (other than rights that any Debtor may have
against such purchaser generally and without regard to this Security Agreement
or such
-14-
199
sale) and (without limiting the generality of other waivers set forth herein)
each Debtor hereby waives (to the fullest extent permitted by law) all rights of
redemption, stay and appraisal which such Debtor may now have or may at any time
in the future have under any rule of law or statute now existing or hereafter
enacted.
7.4 Proceeds of Sale. After deducting all reasonable costs and expenses of
collection, storage, custody, sale or other disposition and delivery (including
legal costs and attorneys fees) and all other reasonable charges against the
Collateral, the residue of the proceeds of any such sale or disposition shall be
applied as provided in the Credit Agreement. If the Credit Agreement fails to
designate the manner in which proceeds of Collateral are to be applied, then
they shall be applied (1) first, to pay all expenses and costs of the Agent (and
any Person acting on behalf of the Agent) and all other amounts owing to the
Agent in its capacity as Agent or Senior Secured Party or any other similar
capacity, (2) second, to interest and fees constituting Senior Secured
Obligations (and if there is insufficient proceeds to repay all such interest
and fees, then to each creditor thereof ratably in proportion to its percentage
interest in all such interest and fees) and (3) last, to all other Senior
Secured Obligations (and if there is insufficient proceeds to repay all such
Senior Secured Obligations, then to each creditor thereof ratably in proportion
to its percentage interest in all such Senior Secured Obligations). In the event
the proceeds of any sale, lease or other disposition of the Collateral hereunder
are insufficient to pay all of the Senior Secured Obligations in full, the
Debtors will be liable for the deficiency in accordance with and to the extent
set forth in the Credit Agreement and the other Loan Documents, together with
interest thereon at the maximum rates provided in the Credit Agreement, and the
cost and expenses of collection of such deficiency, including (to the extent
permitted by law), without limitation, reasonable attorneys fees, expenses and
disbursements.
7.5 Rights of Collateral Agent to Use and Operate Collateral. The Agent shall
have the right and power, to the fullest extent permitted by applicable law, to
take possession of all or any part of the Collateral, and to exclude the
Debtors, and all Persons claiming under them wholly or partly therefrom, and
thereafter to hold, store, and/or use, operate, manage and control the same.
Upon any such taking of possession, the Agent may (but shall not be obligated
to) from time to time, at the expense of the Debtors, make all such repairs,
replacements, alterations, additions and improvements to and of the Collateral
as the Agent may reasonably deem proper. In any such case, subject as aforesaid,
the Agent shall have the right to manage and control the Collateral and to carry
on the business and to exercise all rights and powers of any Debtor in respect
thereto, as the Agent shall deem best, including, without limitation, the right
to enter into any and all such agreements with respect to the sale, leasing or
subleasing, management and/or operation of the Collateral or any part thereof as
the Agent may reasonably see fit; and the Agent shall be entitled to collect and
receive all rents, issues, profits, fees, revenues and other income of the same
and every part thereof.
7.6 Collection of Accounts Receivable, etc. The Agent may, at any time or from
time to time, notify or may require any Debtor to notify Account Debtors
obligated (including, without limitation, any or all subscribers and
advertisers), whether now existing or hereafter arising, to make payment
directly to the Agent, and may take possession of all Proceeds of any Accounts
in any Debtor's possession. With respect to instruments issued to any Debtor,
the Agent may, in the
-15-
200
name of such Debtor, endorse (or require the applicable Debtor to endorse) for
deposit and deposit, and otherwise reduce to possession, or may protest, demand
payment upon and bring suit to collect on any checks, notes or other instruments
and take any other steps which the Agent deems reasonably necessary or advisable
to collect, realize upon or reduce to possession any or all Accounts or other
Collateral.
7.7 Certain Rights Respecting Contracts. The Agent shall have the right (but not
the obligation) to assume any Debtor's rights under any (or all) Contracts of
such Debtor, it being in the Agent's sole discretion whether to do so and as to
which Contracts are to be so assumed. Without limiting the generality of the
foregoing, the Agent may notify (or require the applicable Debtor to notify)
other parties to any such Contract that it has assumed the applicable Debtor's
rights under the Contract, may perform and discharge any or all such Debtor's
obligations under any such Contract and in the exercise of such rights, may pay
any costs and expenses and employ agents and legal counsel, all at the sole cost
and expense of the Debtors. The Agent shall not be obligated to perform or
discharge any obligation or duty to be performed or discharged by any Debtor
under any Contract, and each Debtor hereby agrees to indemnify the Agent, its
nominee and each other Principal for, and hold each such Person harmless from,
any and all liability arising from said Contracts. Nothing herein shall be
construed to place responsibility for the control, care, management, or repair
of any property to which any Debtor has rights under the Contracts upon the
Agent or make it liable for any negligence in the management, operation, upkeep,
repair or control of such property.
7.8 Appointment of Receiver. Without limiting the generality of the foregoing or
any rights in the Credit Agreement or any other Loan Document, upon the
occurrence of an Event of Default, the Agent shall have the right to apply for
and have a receiver appointed by a court of competent jurisdiction in any action
taken by the Agent to enforce its rights and remedies hereunder in order to
manage, protect and preserve the Collateral and continue all revenues and
profits thereof and apply the same to the payment of all expenses and other
charges of such receivership, including, without limitation, the compensation of
the receiver, and to the payment of the Senior Secured Obligations as aforesaid
until a sale or other disposition of such Collateral shall be finally made and
consummated as more fully set forth in the Credit Agreement.
7.9 Action by Debtors. Each Debtor and each of its Subsidiaries shall take any
action necessary or required or requested by the Agent from time to time in
order to allow it fully to enforce the security interest in the Collateral
hereunder and to realize thereof to the fullest extent possible, including, but
not limited to, the filing of any claims with any court, liquidator, trustee,
guardian, receiver or other like person or party. In addition, in the event
that, upon an occurrence of an Event of Default, the Agent shall sell all or any
of the Collateral to another party or parties (herein called "Transferee") or
shall purchase or retain all or any of the Collateral, each Debtor and each
Subsidiary of each Debtor shall:
(a) Deliver to the Agent or Transferee, as the case may be, all Collateral and
all related documents and records of each Debtor and each Subsidiary of each
Debtor;
(b) Use its best efforts to obtain any approvals that are required by any
governmental or regulatory
-16-
201
body in order to permit the sale of the Collateral to the Transferee or the
purchase or retention of the Collateral by the Agent and allow the Transferee or
the Agent to continue the business of each Debtor.
7.10 Agreement to Sell. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof; the Agent
shall be free to carry out such sale pursuant to such agreement, and no Debtor
shall be entitled to the return of the Collateral or any portion thereof,
notwithstanding the fact that after Agent shall have entered into such an
agreement, any and all Events of Default shall have been remedied and the Senior
Secured Obligations paid in full.
7.11 Collateral Agent May Exercise Less Than All Rights. Each Debtor hereby
acknowledges and agrees that the Agent is not required to exercise all remedies
and rights available to it equally with respect to all of the Collateral, and
the Agent may select less than all of the Collateral with respect to which the
remedies as determined by the Agent may be exercised.
SECTION 8. SECURITY INTEREST ABSOLUTE; WAIVERS BY DEBTOR
8.1 Absolute Nature of Security Interest. All rights of the Agent hereunder, the
grant of the security interest in the Collateral and all obligations of each
Debtor hereunder, shall be absolute and unconditional irrespective of (i) any
lack of validity or enforceability of any of the terms of the Loan Documents or
any other instrument or document relating hereto or thereto, (ii) any change in
the amount of the Senior Secured Obligations (including, without limitation, any
increase in the principal amount of the Loans), or any change in the time,
manner or place of payment of, or in any other term of, all or any of the Senior
Secured Obligations, or any other amendment or waiver of any terms related
thereto, (iii) any exchange, release or nonperfection of any other collateral,
or any release or amendment or waiver of any guaranty, (iv) any failure by the
Senior Secured Party or any other Person to demand payment or performance by any
Loan Party or to exercise or enforce any right or remedy in respect thereof, or
(v) any other circumstance that might otherwise constitute a defense available
to, or a discharge of, any Debtor or any other Person in respect of the Senior
Secured Obligations or in respect of this Security Agreement or any other Loan
Document or any obligations hereunder or thereunder.
8.2 No Duty To Marshal Assets. The Agent shall have no obligation to marshal any
assets in favor of any Debtor or any other Person or against or in payment of
any or all of the Senior Secured Obligations.
8.3 Waiver of Subrogation, Etc. Each Debtor acknowledges that until all the
Senior Secured Obligations shall have been indefeasibly paid in full, such
Debtor shall have no right (or hereby waives any such right) of subrogation,
reimbursement, or indemnity whatsoever, in respect of any Debtor, arising out of
remedies exercised by the Agent hereunder.
8.4 Waivers. Each Debtor hereby:
(a) waives presentment, demand, notice of acceptance, protest and, except as is
otherwise
-17-
202
specifically provided herein or in the Credit Agreement, all other demands and
notices in connection with this Security Agreement or the enforcement of the
rights of the Agent or any other Senior Secured Party hereunder or in connection
with any Senior Secured Obligation or any Collateral;
(b) consents to and waives notice of (i) the granting of renewals, extensions of
time for payment or other indulgences to any account debtor in respect of any
account receivable, (ii) substitution, release or surrender of any Collateral,
(iii) the addition or release of Persons primarily or secondarily liable on any
Senior Secured Obligation or on any account receivable or other Collateral, (iv)
the acceptance of partial payments on any account or note receivable or other
Collateral and/or the settlement or compromise thereof, (v) any requirement of
diligence or promptness on the part of the Agent or any other Senior Secured
Party or any holder of Senior Secured Obligations in the enforcement of any
rights in respect of any Collateral or any other agreement or instrument
directly or indirectly relating thereto, and (vi) any enforcement of any present
or future agreement or instrument relating directly or indirectly to the
Collateral;
(c) to the extent that it may lawfully do so, covenants that it shall not at any
time insist upon or plead, or in any manner claim or take the benefit or advance
of, any stay (except in connection with a pending appeal), valuation, appraisal,
redemption or extension law now or at any time hereafter in force that, but for
this waiver, might be applicable to any sale made under any judgment, order or
decree or based on this Security Agreement or any other Loan Document;
(d) to the extent that it may lawfully do so hereby expressly waives and
relinquishes all benefit and advance of any and all such laws and hereby
covenants that it will not hinder, delay or impede the execution of any power in
this Security Agreement or therein granted and delegated to the Senior Secured
Party, but that it will suffer and permit the execution of every such power as
though no such law or laws had been made or enacted; and
(e) waives, to the fullest extent permitted by law, any right it may have under
the constitutions of the Commonwealth of Pennsylvania or under the constitution
of any other state in which any of the Collateral may be located, or under the
Constitution of the United States of America, to notice (except for notice
specifically required hereby or specifically required to be given to a Debtor
pursuant to the Credit Agreement, if any) or to a judicial hearing prior to the
exercise of any right or remedy provided by this Security Agreement to the
Senior Secured Party, and waives its rights, if any, to set aside or invalidate
any sale duly consummated in accordance with the foregoing provisions hereof on
the grounds (if such be the case) that the sale was consummated without a prior
judicial hearing.
EACH DEBTOR'S WAIVERS UNDER THIS SECTION HAVE BEEN MADE VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY AND AFTER SUCH DEBTOR HAS BEEN APPRISED AND
COUNSELED BY ITS ATTORNEYS AS TO THE NATURE THEREOF AND ITS POSSIBLE ALTERNATIVE
RIGHTS.
SECTION 9. NON-WAIVER AND NON-EXCLUSIVE REMEDIES
-18-
203
9.1 Non-Exclusive Remedies. No remedy or right herein conferred upon, or
reserved to the Agent is intended to be to the exclusion of any other remedy or
right, but each and every such remedy or right shall be cumulative and shall be
in addition to every other remedy or right given hereunder or under any other
Loan Document or under law.
9.2 Delay and Non-Waiver. No delay or omission by the Agent to exercise any
remedy or right hereunder shall impair any such remedy or right or shall be
construed to be a waiver of any Event of Default, or an acquiescence therein,
nor shall it affect any subsequent Event of Default of the same or of a
different nature.
9.3 Actions by Senior Secured Party. Whether or not explicitly stated, any
action required or permitted to be taken by any Senior Secured Party hereunder
may be taken by any one or more Person or Persons designated by such Senior
Secured Party (whether as nominee, employee, agent or otherwise) and such Person
or Persons shall have all rights (including, without limitation, all rights to
indemnification and other protections), powers and privileges granted to such
Senior Secured Party hereunder (except as may be limited by such Senior Secured
Party in its sole discretion).
SECTION 10. TERMINATION OF AGREEMENT; RELEASE OF COLLATERAL
10.1 Termination of Agreement. At such time as (a) the Senior Secured Parties
have no obligation to make further loans or extensions of credit to the Borrower
or any other Debtor and (b) all the Senior Secured Obligations have been
indefeasibly paid and/or performed in full, then this Security Agreement shall
terminate and the Collateral shall be released pursuant to Section 10.2;
provided that if at the time of the payment in full of the Senior Secured
Obligations (i) such payment and performance is not subject to any filed or
threatened claim, contest, avoidance or offset of any kind whatsoever, (ii) the
chief financial officer of the Borrower so certifies in writing to the Agent and
(iii) the Borrower supplies to the Agent such valuations, information, evidence,
certifications and opinions as the Agent may request in connection therewith,
this Security Agreement shall terminate upon satisfaction of the conditions in
clauses (a) and (b) above without giving effect to the requirement that the
payment in full be indefeasible.
10.2 Duties of Agent With Respect To Release of Collateral. When this Agreement
terminates pursuant to Section 10.1 above, the Agent shall reassign and deliver
to each Debtor, or to such Person as each Debtor shall designate, against
receipt, such of the Collateral (if any) as shall not have been sold or
otherwise applied by the Agent pursuant to the terms hereof and shall still be
held by it hereunder, together with appropriate instruments of reassignment and
release, all without any recourse to, or warranty whatsoever by, the Agent, at
the sole cost and expense of the Debtors.
10.3 Release of Certain Collateral. There shall be a partial release of
Collateral under the following circumstances:
(i) as a court of competent jurisdiction may
direct;
-19-
204
(ii) in connection with a disposition (other than
to the Borrower or a Subsidiary thereof)
permitted under Subsection 7.7.2 of the
Credit Agreement or as otherwise provided
under the Loan Documents,
(iii) if in accordance with the Credit Agreement
cash proceeds from any sale or transfer of
the collateral are used to prepay
outstanding sums due under the Loans or are
reinvested in the Company and its
Subsidiaries, and
(iv) if such collateral security is of little or
no value (such as certificates representing
stock redeemed or exchanged consistent with
the terms of this Agreement or assets which
have been abandoned) as certified by the
Company in a written statement requesting
such release.
In addition, the Agent will terminate a UCC filing if
that filing is no longer required because the subject collateral has
been moved or for a similar reason, and the Debtor so certifies to that
fact.
The Agent shall thereupon reassign and deliver to the
applicable Debtor, or to such Person as such Debtor shall designate, against
receipt, the released Collateral, together with appropriate instruments or
reassignment and release, all without any recourse to, or warranty whatsoever
by, the Agent, at the sole cost and expense of the Borrower and its
Subsidiaries.
10.4 Survival of Representations. All representations, warranties and covenants
of Debtors herein (including, without limitation, those incorporated by
reference) shall survive the execution and delivery of this Security Agreement
and shall continue until this Security Agreement is terminated as provided
herein and shall not be affected or waived by any inspection or examination made
by or on behalf of Agent or any Senior Secured Party.
SECTION 11. PAYMENT OF COSTS AND EXPENSES; INDEMNITIES
11.1 Costs and Expenses. Upon demand, each Debtor shall pay to the Agent the
amount of any and all reasonable expenses incurred by the Agent hereunder or in
connection herewith, including, without limitation those that may be incurred in
connection with (i) the administration of this Security Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of the Agent hereunder or (iv) the failure of a Debtor to
perform or observe any of the provisions hereof.
11.2 Fees. The Debtors will, upon demand, pay to the Agent such reasonable fees
(in addition to its expenses) for its services as Agent as may be agreed upon
from time to time between the Agent and the Borrower.
11.3 Indemnification. The Debtors jointly and severally agree to indemnify and
hold harmless the
-20-
205
Agent and other Senior Secured Parties (and, in each case, its directors,
officers, agents and employees) to the fullest extent permitted by law, from and
against any and all claims, losses, liabilities, actions, judgments, demands,
costs and expenses of whatever nature incurred by the Agent or such Senior
Secured Party hereunder or in connection herewith, unless such claim, loss,
liability, action, judgment, demand, cost or expense is the result of the
willful misconduct or gross negligence of said indemnified party as shall have
been determined in a final, nonappealable judgment of a court of competent
jurisdiction. This indemnification shall survive the termination of this
Agreement.
11.4 Taxes. The Borrower and its Subsidiaries hereby jointly and severally agree
to pay to the Agent, upon demand, the amount of any taxes which the Agent may
have been required to pay by reason of the security interests established
pursuant to this Security Agreement (including any applicable transfer taxes).
11.5 Interest. All monetary obligations of the Borrower and its Subsidiaries
under this Section shall bear interest following demand at the Base Rate (as
defined in the Credit Agreement) plus two per cent (2%).
11.6 Additional Obligations. Any amounts payable pursuant to this Section shall
be additional Senior Secured Obligations secured hereby.
SECTION 12. MISCELLANEOUS PROVISIONS
12.1 Notices. All notices, requests, demands, directions and other
communications (collectively "notices") given or made upon any party under the
provisions of this Security Agreement shall be by telephone or in writing
(including facsimile communication) unless otherwise expressly provided under
this Security Agreement and if in writing, shall be delivered or sent by
facsimile to the respective parties at the addresses and numbers set forth under
their respective names on the signature pages to this Security Agreement or in
accordance with any subsequent unrevoked written direction from any party to the
others. All notices shall, except as otherwise expressly provided in this
Security Agreement, be effective (a) in the case of facsimile, when received,
(b) in case of hand-delivered notice, when hand delivered, (c) in the case of
telephone, when telephoned, provided, however, that in order to be effective,
telephonic notices must be confirmed in writing no later than the next day by
letter, facsimile or telex, (d) if given by mail, four (4) days after such
communication is deposited in the mails with first class postage prepaid, return
receipt requested, and (e) if given by any other means (including air courier),
when delivered; provided, that notices to the Agent shall not be effective until
received. In the event of a discrepancy between any telephonic or written
notice, the written notice shall control.
12.2 Entire Agreement. This Security Agreement sets forth all of the promises,
covenants, agreements, conditions and understandings among the parties hereto
with respect to the subject matter hereof, and supersedes all prior agreements
and understandings, inducements or conditions, express or implied, oral or
written, with respect thereto, except as contained or referred to herein.
-21-
206
12.3 Amendments. The terms of this Security Agreement may be amended,
terminated, modified, supplemented or waived only upon the written consent of
the Agent and each Debtor. The rights of the Agent to so change, modify, waive,
discharge or terminate any provision hereof is subject to the terms of Section
12.5 of the Credit Agreement, it being understood, however, that the Debtors are
not third party beneficiaries of Section 12.5 of the Credit Agreement.
12.4 Governing Law. This Security Agreement and the rights and obligations of
the parties hereunder shall be construed and enforced in accordance with and
shall be governed by the laws of the Commonwealth of Pennsylvania.
12.5 Arbitration; Consent to Jurisdiction, Service and Venue; Waiver of Jury
Trial. 12.5.1 Arbitration.
(a) Upon demand of any party hereto, whether made before or after institution of
any judicial proceeding, any claim or controversy arising out of, or relating
to, the Loan Documents between any or all of the parties hereto (a "Dispute")
shall be resolved by binding arbitration conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association (the "AAA") and the Federal Arbitration Act.
Disputes may include, without limitation, tort claims, counterclaims, a dispute
as to whether a matter is subject to arbitration, claims brought as class
actions, or claims arising from documents executed in the future. A judgment
upon the award may be entered in any court having jurisdiction. Notwithstanding
the foregoing, this arbitration provision does not apply to disputes under or
related to Interest Rate Protection Agreements.
(b) All arbitration hearings shall be conducted in the City of Philadelphia,
Commonwealth of Pennsylvania, unless otherwise agreed by all parties to such
arbitration. A hearing shall begin within 90 days of demand for arbitration and
all hearings shall conclude within 120 days of demand for arbitration. These
time limitations may not be extended unless a party shows cause for extension
and then for no more than a total of 60 days. The expedited procedures set forth
in Rule 51 et seq. of the Arbitration Rules shall be applicable to claims of
less than $1,000,000.00. Arbitrators shall be licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA. The parties do
not waive applicable federal or state substantive law except as provided herein.
(c) Notwithstanding the preceding binding arbitration provisions, the parties
agree to preserve, without diminution, certain remedies that any party may
exercise before or after an arbitration proceeding is brought. The parties shall
have the right to proceed in any court of proper jurisdiction or by self-help to
exercise or prosecute the following remedies, as applicable: (i) all rights to
foreclose against any real or personal property or other security by exercising
a power of sale or under applicable law by judicial foreclosure including a
proceeding to confirm the sales; (ii) all rights of self-help including peaceful
occupation of real property and collection of rents, set-off, and peaceful
possession of personal property; and (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and filing of involuntary bankruptcy proceedings. Any
claim or controversy with regard
-22-
207
to any party's entitlement to such remedies is a Dispute.
(d) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A REMEDY OF SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER PARTIES IN ANY
DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TO SPECIAL, CONSEQUENTIAL, PUNITIVE
OR EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN THE FUTURE IN
CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS RESOLVED BY ARBITRATION OR
JUDICIALLY.
12.5.2 Consent to Jurisdiction, Service and Venue; Waiver of Jury Trial.
(a) With respect to any matters that may be heard before a court of competent
jurisdiction under paragraph (c) of the preceding subsection 12.5.1, the
Borrower and its Subsidiaries each hereby consents to the jurisdiction and venue
of the courts of the Commonwealth of Pennsylvania or of any federal court
located in such state, waives personal service of any and all process upon it
and consents that all such service of process be made by certified or registered
mail directed to the Borrower or such Subsidiary at the address provided for in
Section 12.1 above and service so made shall be deemed to be completed upon
actual receipt. The Borrower and its Subsidiaries each hereby waives the right
to contest the jurisdiction and venue of the courts located in the County of
Philadelphia, Commonwealth of Pennsylvania on the ground of inconvenience or
otherwise and, further, waives any right to bring any action or proceeding
against (a) the Agent in any court outside the County of Philadelphia,
Commonwealth of Pennsylvania, or (b) any other Senior Secured Party other than
in a state within the United States designated by such Senior Secured Party. The
provisions of this subsection 12.5.2 shall not limit or otherwise affect the
right of the Agent or any Senior Secured Party to institute and conduct an
action in any other appropriate manner, jurisdiction or court.
(b) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL
REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY TRIAL IN ANY PROCEEDING BASED
UPON OR ARISING OUT OF THIS AGREEMENT, OR ANY OTHER LOAN DOCUMENT OR ANY
GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE RELATIONSHIP BETWEEN OR AMONG SUCH
PERSONS OR ANY OF THEM. NEITHER THE AGENT NOR ANY SENIOR SECURED PARTY NOR ANY
SUBSIDIARY OF THE BORROWER NOR THE BORROWER NOR ANY OTHER PERSON WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.
(c) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH (d) OF THE PRECEDING SUBSECTION
12.5.1 EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY
RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY ARBITRATION OR OTHER LITIGATION,
ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS AGREEMENT (i)
CERTIFIES THAT NEITHER THE AGENT NOR ANY REPRESENTATIVE, OR ATTORNEY OF THE
AGENT NOR ANY SENIOR SECURED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
THE AGENT OR SUCH SENIOR
-23-
208
SECURED PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.5. THE PROVISIONS OF THIS SECTION
12.5 HAVE BEEN FULLY DISCLOSED TO THE PARTIES AND THE PROVISIONS SHALL BE
SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO
ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 12.6 WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
12.6 Severability. If any of the provisions or terms of this Security Agreement
shall for any reason be held to be invalid or unenforceable such invalidity or
unenforceability shall not affect any of the other terms hereof, but this
Security Agreement shall be construed as if such invalid or unenforceable term
had never been contained herein. Any such invalidity or unenforceability in a
particular jurisdiction shall not be deemed to render a provision invalid or
unenforceable in any other jurisdiction.
12.7 Counterparts. This Security Agreement may be executed in one or more
counterparts, each of which shall constitute an original agreement, but all of
which together shall constitute one and the same instrument. A photocopied or
facsimile copy of any signature page to this Agreement shall be deemed to be the
functional equivalent of a manually executed original for all purposes.
12.8 Joint and Several Liability. All Debtors shall jointly and severally be
liable for the obligations of each Debtor to the Agent hereunder.
12.9 Additional Debtors; Ratification. Any Person that shall at any time become
a Subsidiary of the Borrower shall, if not already a party to this Agreement,
immediately become a party hereto (an "Additional Debtor") by the execution and
delivery of an Additional Debtor Joinder in substantially the form of Schedule
12.9 attached hereto and shall immediately comply with the provisions hereof
applicable to Debtors. Concurrent therewith, the Additional Debtor shall deliver
replacement schedules for, or supplements to all other Schedules to this
Agreement, as applicable, which replacement schedules shall supersede, or
supplements shall modify, the Schedules then in effect. Upon delivery of the
foregoing to the Agent, the Additional Debtor shall be and become a Debtor for
all purposes hereof as fully and to the same extent as if it were an original
signatory hereto and shall be deemed to have made the representations,
warranties and covenants set forth herein as of the date of execution and
delivery of such Additional Debtor Joinder and thereafter at any time that such
representations and covenants must be restated pursuant to the terms of the Loan
Documents.
12.10 Effect of Amendment. On and after the effectiveness of this Security
Agreement, any reference to the Security Agreement or similar term used in any
Loan Document shall mean and refer to this Security Agreement, as amended,
modified, joined or supplemented, from time to time.
12.11 Successors and Assigns. All covenants, agreements, representations and
warranties made herein, and in certificates delivered herewith by or on behalf
of any Debtor shall bind such Debtor's
-24-
209
successors and assigns, whether so expressed or not, and all such covenants,
agreements, representations and warranties, and all other rights of the Agent
and the Senior Secured Parties hereunder, shall inure to the benefit of its
successors and assigns; provided, that the foregoing shall not be construed to
permit any assignment of any rights or obligations of any Debtor hereunder
except as expressly provided herein or in the Credit Agreement and any attempt
to make such an assignment in violation of the provisions hereof and thereof
shall be void. In the event that a successor Agent is appointed (which successor
may be appointed by the then serving Agent or as otherwise provided in the
Credit Agreement), such successor shall become vested with the powers and rights
of the Agent hereunder, and the predecessor of the Agent shall thereafter be
released and discharged from any liability or responsibility hereunder, except
with respect to claims arising prior to such assignment.
12.12 Relationship with Credit Agreement. To the extent that any terms of this
Security Agreement shall be inconsistent with the terms of the Credit Agreement,
the terms of the Credit Agreement shall control. The Agent's performance of its
duties hereunder shall in all respects be subject to and governed by the Credit
Agreement. Nothing contained herein shall be construed to enlarge the degree of
responsibility or discretion or the duty of care to be exercised by the Agent
beyond that expressly set forth in the Credit Agreement. Without limiting the
generality of the foregoing, each of the Debtors hereby acknowledges and agrees
that the Agent shall, with respect to all of its rights, obligations and duties
under this Agreement, be entitled to all of its rights, protections and
immunities provided for under Article 12 of the Credit Agreement as fully and to
the same extent as if such provisions were set forth in full herein.
-25-
210
IN WITNESS WHEREOF, the parties have caused this Security
Agreement to be duly executed and delivered by their respective authorized
officers on the date first above written.
DEBTORS: SUSQUEHANNA MEDIA CO.
SUSQUEHANNA CABLE CO.
SUSQUEHANNA CABLE INVESTMENT CO.
CABLE TV OF EAST PROVIDENCE, INC.
CASCO CABLE TELEVISION, INC.
CASCO CABLE TELEVISION OF BATH, MAINE
SBC CABLE CO.
YORK CABLE TELEVISION, INC.
SUSQUEHANNA RADIO CORP.
RADIO CINCINNATI, INC.
RADIO INDIANAPOLIS, INC.
RADIO METROPLEX, INC.
RADIO SAN FRANCISCO, INC.
KRBE CO.
KNBR, INC.
BAY AREA RADIO CORP.
WSBA LICO, INC.
WVAE LICO, INC.
WNNX LICO, INC.
Signature Page to Security Agreement
211
KNBR LICO, INC.
KRBE LICO, INC.
INDIANAPOLIS RADIO LICENSE CO.
SUSQUEHANNA DATA SERVICES, INC.
SUSQUEHANNA FIBER SYSTEMS, INC.
MEDIA PCS VENTURES, INC.
KFFG LICO, INC.
KPLX RADIO, INC.
KPLX LICO, INC.
KLIF BROADCASTING, INC.
XXXX XXXX, INC.
KLIF RADIO, INC.
TEXAS STAR RADIO, INC.
INDY LICO, INC.
WRRM LICO, INC.
WFMS LICO, INC.
By:_______________________________________
Xxxx X. Xxxxxxx, on behalf of each of
the foregoing as Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esquire
Signature Page to Security Agreement
212
KPLX LIMITED PARTNERSHIP,
by KPLX Radio, Inc., its General Partner
KLIF BROADCASTING LIMITED
PARTNERSHIP, by KLIF Radio, Inc.,
its General Partner
By:_______________________________________
Xxxx X. Xxxxxxx on behalf of each of the
foregoing as Treasurer of the General Partner
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esquire
Signature Page to Security Agreement
213
ACKNOWLEDGED BY AGENT:
FIRST UNION NATIONAL BANK, in its capacity as
Agent
By:
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
Notice Information
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No. (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx, Senior Vice President
Signature Page to Security Agreement
214
SCHEDULE 4.1
215
SCHEDULE 5.2 TO SECURITY AGREEMENT
OPERATING ACCOUNT CONSENT LETTER
[Name and address of
Operating Account Bank]
Ladies and Gentlemen:
We refer to account numbers ____________, ____________ and ____________
(the "Operating Accounts") maintained with you by ____________, Inc. (the
"Company") and into which certain monies, instruments and other property are
deposited from time to time. The Company has granted to First Union National
Bank as Agent (the "Agent") for the benefit of the the Senior Secured Parties
under, and as defined in, the Security Agreement, dated as of ____________,
1999, among the Company, certain other Debtors and the Agent, a security
interest in all assets and properties of the Company, including, among other
things, the Operating Accounts, all monies, instruments and other property
deposited therein and all certificates or instruments, if any, representing or
evidencing the Operating Accounts. It is a condition to the continued
maintenance of the Operating Accounts with you that you agree to this Letter
Agreement.
By signing this Letter Agreement, you agree that from the date hereof
the Operating Accounts shall be under the exclusive dominion and control of the
Agent and all monies, instruments and other property of the Company received in
connection therewith whether or not deposited in the Operating Accounts shall be
held solely for the benefit of the Agent. The Operating Accounts shall be
subject to written instructions only from the Agent. You agree to:
(a) follow your usual operating procedures for the handling of
any remittance received in the Operating Accounts that contains restrictive
endorsements, irregularities, such as a variance between the written and
numerical amounts, undated or postdated items, missing signature, incorrect
payee, etc.;
(b) endorse and process all eligible checks and other
remittance items, not covered by subparagraph (a) above, deposit such checks and
other remittance items in the Operating Accounts; and
(c) maintain a record of all checks and other remittance items
received in the Operating Accounts and, in addition to providing the Company
with photostats, vouchers, enclosures, etc. of checks and other remittance items
received on a daily basis, as well as a monthly statement, furnish to the Agent,
free of any service charge payable by the Agent, your regular bank statement
with respect to the Operating Accounts, with the words "First Union National
Bank, as Agent Re: ____________, Inc." included thereon so that there is no
confusion as to ownership of the Operating Accounts and so that the Agent is
able to properly identify the Operating Accounts.
216
You hereby agree to follow the instructions of the Company with respect
to the disposition of any and all money deposited in the Operating Accounts as
directed by the Company unless and until you have received written instructions
to the contrary from the Agent, in which case you agree to follow such
instructions from the Agent.
You waive and agree not to assert, claim or endeavor to exercise, and
by executing this Letter Agreement bar and estop yourself from asserting,
claiming or exercising, and you acknowledge that you have not heretofore
received a notice from any other party asserting, claiming or exercising, any
right of setoff, banker's lien or other purported form of claim with respect to
the Operating Accounts and funds from time to time therein. You shall have no
rights in the Operating Accounts or the funds therein. To the extent you may
ever have any such rights, you hereby expressly subordinate all such rights to
all rights of the Agent.
You may terminate this Letter Agreement only upon thirty days' prior
written notice to that effect to the Company and the Agent, by canceling the
Operating Accounts maintained with you and transferring all funds, if any, in
such Operating Accounts to the Agent. After any such termination, you shall
nonetheless remain obligated promptly to transfer to the Agent at such address
anything from time to time received in the Operating Accounts.
This Letter Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
Very truly yours,
_____________________________, INC.
By:
Title:
By:
Title:
By:
Title:
Acknowledged and agreed to as
of the date first above written.
[OPERATING ACCOUNT BANK]
By:
Title:
217
SCHEDULE 12.9
FORM OF ADDITIONAL DEBTOR JOINDER
Security Agreement dated as of , 1999 from
Susquehanna Media Co. and Subsidiaries as Debtors
party thereto, from time to time, to and in favor of
First Union National Bank, as Agent (the "Security Agreement")
Reference is made to the Security Agreement as defined above;
capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in, or by reference in, the Security Agreement.
The undersigned hereby agrees that upon delivery of this Additional
Debtor Joinder to the Agent referred to above or its successor, the undersigned
shall be and become a Debtor for all purposes of the Security Agreement as fully
and to the same extent as if it were an original signatory thereto and shall be
deemed to have made the representations and warranties set forth in Section 4
therein as of the date of execution and delivery of this Additional Debtor
Joinder and at any future dates that such representations must be restated
pursuant to the terms of the Loan Documents. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, THE UNDERSIGNED SPECIFICALLY ACKNOWLEDGES AND AGREES TO THE
ARBITRATION CLAUSE SET FORTH IN SUBSECTION 12.5.1 THEREOF AND TO THE CONSENT TO
JURISDICTION AND WAIVER OF JURY TRIAL PROVISIONS SET FORTH IN SUBSECTION 12.5.2
THEREOF.
Attached hereto are supplemental and/or replacement Exhibits to the
Security Agreement, as applicable.
An executed copy of this Joinder shall be delivered to the Agent, and
the Agent and the Senior Secured Parties may rely on the matters set forth
herein in entering into and extending credit under the Credit Agreement on or
after the date hereof. This Joinder shall not be modified, amended or terminated
without the prior written consent of the Agent.
[Name of New Debtor]
By:
Title:
Address:
Dated:
218
GUARANTY AND SURETYSHIP AGREEMENT
("Guaranty Agreement")
GUARANTY AND SURETYSHIP AGREEMENT made as of the 12th day of May, 1999
by and among SUSQUEHANNA MEDIA CO., a Delaware corporation (the "Borrower") and
the parties designated as "GUARANTORS" on the signature lines hereto (jointly
and severally, a "Guarantor" or the "Guarantors"), in favor of FIRST UNION
NATIONAL BANK, a national banking association, as agent on behalf of the Senior
Secured Parties (as defined in the Credit Agreement as referred to below). First
Union National Bank in its capacity as agent for the Senior Secured Parties
hereunder, with its successors and assigns, is hereinafter referred to as
"Agent."
BACKGROUND OF AGREEMENT
On the date hereof certain lenders and issuers of letters of credit and
FIRST UNION NATIONAL BANK as Agent have entered into a Credit Agreement (as
amended, extended, supplemented, restated, or otherwise modified or refinanced,
including without limitation any amendment involving an increase in principal,
interest rate or other amount, the "Credit Agreement") with the Borrower,
pursuant to which such lenders and issuers agreed to lend certain sums to the
Borrower upon the terms and conditions specified in the Credit Agreement under
(1) a revolving credit facility with a swing line subfacility, and (2) two
separate term loan facilities, and to issue, or participate in the issuance of,
certain letters of credit. In addition, the Credit Agreement currently requires
the Borrower under certain conditions to enter into certain interest rate
hedging agreements.
Each of the Guarantors is a direct or indirect Subsidiary of the
Borrower. The Subsidiaries, wishing to induce the Lenders (as defined in the
Credit Agreement) to enter into the financings described above to enable the
Borrower to (among other things) make loans to them, and the Borrower and the
Subsidiaries having determined that they can obtain their borrowings more
economically by combining their financing needs into a single borrowing unit on
the parent company level, borrowing funds from institutional lenders on that
basis, and then entering into the requisite intercompany financings, the
Subsidiaries agreed jointly and severally to extend the guaranties set forth
below in order to facilitate such financings. Each Guarantor determined that it
was in its best interests and in pursuance of its business purposes that it do
so and that it was and will be Solvent, before and after giving effect to the
transactions contemplated by the Credit Agreement.
The Lenders entered into the Credit Agreement and the transactions
contemplated thereby in reliance, in part, upon each of the Guarantors entering
into the Guaranty Agreement. Accordingly, the parties have agreed to enter into
the Guaranty Agreement on the terms and subject to the conditions set forth
below.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable
219
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. GUARANTY AND SURETYSHIP.
1.1 Surety; Guaranty of Payment. The Guarantors hereby jointly
and severally, irrevocably and unconditionally, agree to act as surety for the
benefit of the Agent (for the benefit of the Senior Secured Parties) with
respect to the Senior Secured Obligations (as defined in the Credit Agreement)
and guaranty that the Senior Secured Obligations shall be paid in full when due
and payable, whether at the stated or accelerated maturity thereof or upon any
mandatory or voluntary prepayment or otherwise.
1.2 Designated Senior Indebtedness. If at any time, any
Guarantor provides any guaranty or otherwise becomes liable in respect of any
obligations under the Senior Secured Notes or Senior Secured Indenture, the
obligations hereunder shall automatically be deemed to be "Designated Senior
Indebtedness" within the meaning of those agreements.
1.3 Obligations of Guarantors Absolute, etc. The obligations
of the Guarantors hereunder shall be absolute and unconditional. Each Guarantor,
jointly and severally, guarantees that the Senior Secured Obligations will be
paid strictly in accordance with the terms of the agreement, instrument or
document giving rise to such Senior Secured Obligations, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
such terms or the rights of the Agent or the Senior Secured Parties with respect
thereto. The liability of the Guarantors hereunder shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of any
Loan Document;
(ii) any change in the time, manner or place of
payment of the Senior Secured Obligations;
(iii) any amendment or modification of or supplement
to the Loan Documents, or any furnishing or acceptance of any security, or any
release of any security or the release of any Person's obligations (including
without limitation, any Guarantor, Pledgor or Borrower), with respect to the
Senior Secured Obligations;
(iv) any waiver, consent, extension, indulgence or
other action or inaction under or in respect of any such instrument, document or
agreement or any exercise or nonexercise of any right, remedy, power or
privilege under or in respect of any such instrument;
(v) any counterclaim, set-off, recoupment or defense
based upon any claim any Guarantor, the Borrower or any Pledgor may have against
the Agent or any Senior Secured Party;
2
220
(vi) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or similar proceeding with
respect to the Borrower, any Affiliate of the Borrower or any Guarantor or their
respective properties or creditors;
(vii) any invalidity or unenforceability, in whole or
in part, of any term hereof or of the Loan Documents;
(viii) any failure on the part of the Borrower or any
Affiliate or any Person that may have been an Affiliate for any reason to
perform or comply with any term of the Loan Documents; or
(ix) any other occurrence whatsoever, whether similar
or dissimilar to the foregoing.
1.4 Continuing Guaranty. This guaranty and suretyship is an
absolute, unconditional, present and continuing guaranty and suretyship of
payment and is in no way conditional or contingent; it shall remain in full
force and effect until terminated pursuant to Section 7 below.
1.5 Joint and Several Liability. Each and every
representation, warranty, covenant and agreement made by the Guarantors, or any
of them, under this Guaranty Agreement shall be and constitute joint and several
obligations of all of the Guarantors, whether or not so expressly stated herein.
1.6 Waivers. Each Guarantor hereby waives, to the fullest
extent permitted by applicable law, (a) all presentments, demands for
performance, notice of non-performance, protests, notices of protests and
notices of dishonor in connection with the Senior Secured Obligations or any
agreement relating thereto; (b) notice of acceptance of this Guaranty Agreement;
(c) any requirement of diligence or promptness on the part of the Agent or the
Senior Secured Parties in the enforcement of its/their rights hereunder or under
the Loan Documents; (d) any enforcement of any present or future agreement or
instrument relating directly or indirectly to the Senior Secured Obligations;
(e) notice of any of the matters referred to in subsection 1.3 hereof; (f)
notices of every kind and description which may be required to be given by any
statute or rule of law; and (g) any defense of any kind which it may now or
hereafter have with respect to its liability under this Guaranty Agreement.
Without limiting the foregoing, neither the Senior Secured Parties nor the Agent
shall be required to make any demand upon, or to pursue or exhaust any rights or
remedies against the Borrower, any other Guarantor or any other Person, or
against the collateral security, for the Senior Secured Obligations. No failure
on the part of the Agent or any Senior Secured Party to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law. Each
Guarantor hereby agrees that it will not enforce or otherwise exercise or claim
or assert any rights of subrogation or contribution against any Person with
respect to the Senior Secured
3
221
Obligations or any security therefor unless and until all the Senior Secured
Obligations are paid in full.
SECTION 2. EXPENSES.
The Guarantors jointly and severally agree to reimburse the
Agent and the Senior Secured Parties for all reasonable costs of collection or
enforcement (including, without limitation, reasonable attorneys' fees and
expenses and allocated costs of counsel who are employees of a Senior Secured
Party) incurred in enforcing the obligations of the Guarantors under this
Guaranty Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Guarantors hereby jointly and severally represent and
warrant that each of the representations and warranties relating to them set
forth in any Loan Document is incorporated herein by reference and is true and
correct on and as of the date hereof.
SECTION 4. COVENANTS.
Each of the covenants and agreements of the Borrower which are
set forth or incorporated in any of the Loan Documents and which are expressly
applicable or refer to the "Subsidiaries" of the Borrower or otherwise refer to
any Guarantors are hereby incorporated by reference as though set forth herein
in their entirety, and each Guarantor hereby agrees to perform and abide by each
such covenant and agreement which purports to be applicable to it.
SECTION 5. SUCCESSORS AND ASSIGNS.
5.1 The obligations hereunder are binding upon each Guarantor,
its successors, transferees and assigns, and shall inure to the benefit of and
be enforceable by the Senior Secured Parties, the Agent and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing, any Senior Secured Party may assign or otherwise transfer any note
held by it to any other Person or entity in accordance with the terms of the
governing Credit Agreement, and such other Person or entity shall thereupon
become vested with all the rights granted to such Senior Secured Party herein
and therein, provided, however, that no Guarantor may assign any of its
obligations hereunder. Notwithstanding the foregoing, if there shall become
additional "Guarantors" or if there should be any assignment of any guaranty
obligations by operation of law or in contravention of the terms of this
Guaranty Agreement or otherwise, then all covenants, agreements, representations
and warranties made herein or pursuant hereto by or on behalf of the Guarantors
shall bind the successors and assigns of the Guarantors and any such additional
Guarantors, jointly and severally, together with the preexisting Guarantors
whether or not such new or additional Guarantors execute the Joinder as set
forth in Section 5.2.
4
222
5.2 Additional Parties. Except as otherwise provided in the
Loan Documents, Guarantors shall at all times constitute all of the Subsidiaries
of the Borrower, other than Paragon Research Limited Partnership. Any Person
that becomes such a Subsidiary after the date hereof shall become a Guarantor
hereunder, and Borrower shall cause such Person to signify its acceptance of the
terms hereof by execution and delivery to the Agent of one or more counterparts
of a Joinder hereto in the form of Exhibit A, appropriately dated.
SECTION 6. RIGHT OF SET-OFF.
Upon the occurrence and during the continuance of any Event of
Default, each Senior Secured Party is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Senior Secured
Party to or for the credit or the account of any Guarantor against any and all
of the obligations of the Guarantor now or hereafter existing under this
Guaranty Agreement, irrespective of whether or not such Senior Secured Party
shall have made any demand under this Guaranty Agreement and although such
obligations may be contingent and unmatured. The rights of each Senior Secured
Party under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Senior
Secured Party may have.
SECTION 7. TERMINATION OF GUARANTY
7.1 Termination of Guaranty Obligations of All Guarantors. At
such time as (a) Senior Secured Parties have no obligations to make further
fundings to the Borrower under the terms of the Credit Agreement and (b) all the
Senior Secured Obligations have been paid and/or performed in full, then the
guaranty provided for herein and this Guaranty Agreement shall terminate,
provided, however, that (i) all indemnities of the Guarantors or the Borrower
contained in this Guaranty Agreement or any Loan Document shall survive and
remain operative and in full force and effect regardless of the termination of
this Guaranty Agreement, and (ii) the guaranty provided for herein and this
Guaranty Agreement shall be reinstated if at any time any payment of any of the
Senior Secured Obligations is rescinded or must otherwise be returned by the
Agent or any Senior Secured Party upon the insolvency, bankruptcy or
reorganization of the Borrower or any Guarantor or otherwise, all as though such
payment had not been made.
7.2 Termination of Guaranty Obligations of Sold Guarantors.
Effective upon the closing of a sale by the Borrower or any Subsidiary of the
Borrower of all the outstanding capital stock of, or all partnership interests
or all other equity interests in, any of the Guarantors hereunder (any Guarantor
being so sold is hereinafter the "Sold Guarantor") in conformity with the
provisions of the Credit Agreement providing for dispositions to third parties
free of Liens, and receipt by the Agent of a certification to such effect from
the chief financial officer of the Borrower, the obligations of that Sold
Guarantor hereunder (including, without limitation, obligations under Section 14
below) shall terminate. However, all the obligations of the other Guarantors
hereunder shall remain in full force and effect.
5
223
SECTION 8. AMENDMENTS AND WAIVERS.
This Guaranty Agreement represents the entire agreement
between the parties with respect to the transactions contemplated herein.
Neither this Guaranty Agreement nor any provision hereof may be changed,
modified, waived, discharged or terminated without the written agreement of the
Agent and the Guarantors or the written agreement of the Agent and the party
against whom enforcement of the change, modification, waiver, discharge or
termination is sought. The rights of the Agent to so change, modify, waive,
discharge or terminate any provision hereof is subject to the terms of Section
12.5 of the Credit Agreement, it being understood, however, that the Guarantors
are not third party beneficiaries of Section 12.5 of the Credit Agreement.
SECTION 9. NOTICES AND COMMUNICATIONS.
All notices, requests, demands, directions and other
communications (collectively "notices") given to or made upon any party under
the provisions of this Guaranty Agreement shall be by telephone or in writing
(including facsimile communications) unless otherwise expressly provided under
this Guaranty Agreement and if in writing shall be delivered or sent by
facsimile to the respective parties at the addresses and numbers set forth under
their respective names on the signature pages of this Guaranty Agreement or in
accordance with any subsequent unrevoked written direction from any party to the
others. All notices shall, except as otherwise expressly provided in this
Guaranty Agreement, be effective (a) in the case of facsimile, when received,
(b) in the case of hand-delivered notice, when hand delivered, (c) in the case
of telephone, when telephoned, provided, however, that in order to be effective,
telephone notices must be confirmed in writing no later than the next day by
letter, facsimile or telex, (d) if given by mail, four (4) days after such
communication is deposited in the mails with first class postage prepaid, return
receipt requested, and (e) if given by any other means (including by air
courier), when delivered; provided, that notices to the Agent shall not be
effective until received. Any Guarantor giving any notice to any other party
hereto shall simultaneously send a copy of such notice to the Agent. In the
event of a discrepancy between any telephonic or written notice, the written
notice shall control.
SECTION 10. GOVERNING LAW.
This Guaranty Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
SECTION 11. ARBITRATION; CONSENT TO JURISDICTION, SERVICE AND VENUE;
WAIVER OF.
11.1 Arbitration.
(i) Upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any claim or controversy
arising out of, or relating to, the Loan Documents between any or all of the
parties hereto (a "Dispute") shall be resolved by
6
224
binding arbitration conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and the Federal Arbitration Act. Disputes may include,
without limitation, tort claims, counterclaims, a dispute as to whether a matter
is subject to arbitration, claims brought as class actions, or claims arising
from documents executed in the future. A judgment upon the award may be entered
in any court having jurisdiction. Notwithstanding the foregoing, this
arbitration provision does not apply to disputes under or related to Interest
Rate Protection Agreements.
(ii) All arbitration hearings shall be conducted in
the City of Philadelphia, Commonwealth of Pennsylvania unless otherwise agreed
by all parties to such arbitration. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall conclude within 120 days of demand
for arbitration. These time limitations may not be extended unless a party shows
cause for extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
the AAA. The parties do not waive applicable Federal or state substantive law
except as provided herein.
(iii) Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to proceed in any court
of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (a) all rights to foreclose against any real or
personal property or other security by exercising a power of sale or under
applicable law by judicial foreclosure including a proceeding to confirm the
sales; (b) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property; and (c) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and filing of involuntary bankruptcy proceedings. Any claim or
controversy with regard to any party's entitlement to such remedies is a
Dispute.
(iv) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A
REMEDY OF SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER
PARTIES IN ANY DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TO SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN
THE FUTURE IN CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS RESOLVED BY
ARBITRATION OR JUDICIALLY.
11.2 Consent to Jurisdiction, Service and Venue; Waiver of Jury Trial.
(i) With respect to any matters that may be heard
before a court of competent jurisdiction under paragraph (iii) of the preceding
subsection 11.1, the Borrower and the Guarantors each hereby consents to the
jurisdiction and venue of the courts of the Commonwealth of Pennsylvania or of
any federal court located in such state, waives personal service of any and all
process upon it and consents that all such service of process be made by
certified or registered mail directed to the Borrower or such Guarantor at the
address provided for
7
225
in Section 9 above and service so made shall be deemed to be completed upon
actual receipt. The Borrower and the Guarantors each hereby waives the right to
contest the jurisdiction and venue of the courts located in the County of
Philadelphia, Commonwealth of Pennsylvania on the ground of inconvenience or
otherwise and, further, waives any right to bring any action or proceeding
against (a) the Agent in any court outside the County of Philadelphia,
Commonwealth of Pennsylvania, or (b) any other Senior Secured Party other than
in a state within the United States designated by such Senior Secured Party. The
provisions of this Section 11 shall not limit or otherwise affect the right of
the Agent or any Senior Secured Party to institute and conduct an action in any
other appropriate manner, jurisdiction or court.
(ii) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE,
SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY
TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR ANY
OTHER LOAN DOCUMENT OR ANY GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE
RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE AGENT NOR
ANY SENIOR SECURED PARTY NOR ANY GUARANTOR NOR THE BORROWER NOR ANY OTHER PERSON
WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
(iii) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH
(iv) OF THE PRECEDING SUBSECTION 11.1 EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO
THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY
ARBITRATION OR OTHER LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
EACH PARTY TO THIS AGREEMENT (a) CERTIFIES THAT NEITHER THE AGENT NOR ANY
REPRESENTATIVE, OR ATTORNEY OF THE AGENT NOR ANY SENIOR SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH SENIOR SECURED PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(b) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 11. THE PROVISIONS OF THIS SECTION 11 HAVE BEEN
FULLY DISCLOSED TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER
PARTY THAT THE PROVISIONS OF THIS SECTION 11 WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
SECTION 12. HEADINGS; COUNTERPARTS.
Headings to this Guaranty Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. This
Guaranty Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall
8
226
constitute one instrument. A photocopied or facsimile copy of any signature page
to this Guaranty Agreement shall be deemed to be the functional equivalent of a
manually executed original for all purposes.
SECTION 13. SEVERABILITY.
Any invalidity, illegality or unenforceability of any term or
provision of this Guaranty Agreement in any jurisdiction or as against any
Guarantor shall not affect the validity, legality or enforceability of any other
terms hereof or in any other jurisdiction or against any other Guarantor.
SECTION 14. INDEMNIFICATION.
Each Guarantor, jointly and severally, shall indemnify and
hold harmless the Agent and each Senior Secured Party from and against all
losses (including judgments, penalties and fines) suffered, and pay or reimburse
each such indemnified party for all reasonable costs and expenses (including
reasonable fees and disbursements of legal counsel and other experts employed or
retained by such indemnified party) incurred by such indemnified party in
connection with, arising out of, or in any way related to this Guaranty
Agreement or the Senior Credit Documents, provided that none of the Guarantors
shall be liable under this Section for any losses, costs or expenses to the
extent they arise from gross negligence or willful misconduct on the part of the
Person requesting indemnification as shall have been determined in a final
nonappealable judgment of a court of competent jurisdiction. This
indemnification shall survive the termination of this Agreement.
SECTION 15. SUBORDINATION PROVISIONS.
15.1 Subordination. The payment of any and all Subordinated
Debt is expressly subordinated to the extent and in the manner set forth in this
Section 15 to Senior Debt and to interest on Senior Debt at the rate stated in
the instrument evidencing such Senior Debt from the date of filing of any
Petition under the Bankruptcy Code of 1978, as amended, to the date of payment
(herein called "Post-petition Interest"). The term "Subordinated Debt" as used
in this agreement shall mean and include the principal of and interest on all
liabilities of the Borrower to any Guarantor (the "Subordinated Debt Holder"),
direct or contingent, joint, several or independent, now or hereafter existing,
due or to become due to, or held or to be held by, the Subordinated Debt Holder,
whether created directly or acquired by assignment or otherwise.
The term "Senior Debt" as used in this agreement shall mean
and include the Senior Secured Obligations (including extensions, renewals and
refundings thereof, whether or not the principal amount is increased) and any
other note or notes issued in substitution therefor or upon any transfer
thereof.
9
227
15.2 Receipt of Payments. The Subordinated Debt Holder will
not receive or accept any payment from the Borrower on account of Subordinated
Debt, if the making of such payment would constitute a violation of any Loan
Document. In the event that the Subordinated Debt Holder shall receive any
payment on Subordinated Debt which such Holder is not entitled to receive under
the provisions of the foregoing sentence, such Holder will hold any amount so
received in trust for the holders of all Senior Debt and will forthwith turn
over such payment to the Agent, in the form received, to be applied on the
Senior Debt.
15.3 Commencement of Proceedings. The Subordinated Debt Holder
will not commence any action or proceeding against the Borrower to recover all
or any part of the Subordinated Debt or join with any creditor, unless the Agent
shall also join in bringing any proceedings against the Borrower pursuant to any
bankruptcy, reorganization, readjustment of debt, arrangement of debt,
receivership, liquidation or insolvency law or statute of the Federal or any
State government unless and until all Senior Debt shall be paid in full.
15.4 Bankruptcy, Insolvency, Reorganization, etc. In the event
of any liquidation, dissolution or other winding up of the Borrower, or in the
event of any receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization or arrangement with creditors, whether or not pursuant
to bankruptcy laws, sale of all or substantially all of the assets or any other
marshalling of the assets and liabilities of the Borrower, (i) Senior Debt shall
first be paid in full in cash before the Subordinated Debt Holder shall be
entitled to receive any moneys, dividends or other assets in any such
proceeding, and (ii) the Subordinated Debt Holder will at the request of the
holders of Senior Debt file any claim, proof of claim or other instrument of
similar character necessary to enforce the obligations of the Borrower in
respect of Subordinated Debt and will hold in trust for the holders of Senior
Debt and pay over to the Agent on behalf of the holders of Senior Debt, in the
form received, to be applied on Senior Debt and Post-petition Interest, any and
all moneys, dividends or other assets received in any such proceeding on account
of Subordinated Debt, unless and until Senior Debt and Post-petition Interest
shall be paid in full in cash. In the event that the Subordinated Debt Holder
shall fail to take such action requested by the holders of Senior Debt, the
Agent may, as attorney-in-fact for the Subordinated Debt Holder, take such
action on behalf of the Subordinated Debt Holder, and the Subordinated Debt
Holder hereby agrees that the Agent may designate any person as the
attorney-in-fact (the "Attorney-in-Fact") for the Subordinated Debt Holder to
demand, xxx for, collect and receive any and all such moneys, dividends or other
assets and give acquittance therefor and to file any claim, proof of claim or
other instrument of similar character and to take such other action (including
acceptance or rejection of any plan of reorganization or arrangement) in the
name of the holders of Senior Debt or in the name of the Subordinated Debt
Holder as the Attorney-in-Fact may deem necessary or advisable for the
enforcement of the agreement contained herein, and the Subordinated Debt Holder
will execute and deliver such other and further powers of attorney or other
instruments as may be requested by the Agent in order to accomplish the
foregoing.
15.5 Changes in Loan Documents. The holders of Senior Debt
may, at any time and from time to time, without the consent of or notice to the
Subordinated Debt Holder,
10
228
without incurring responsibility to the Subordinated Debt Holder, and without
impairing or releasing any of the rights of the holders of Senior Debt, or any
of the obligations of the Subordinated Debt Holder hereunder, by such holders of
Senior Debt's unanimous action, or, as the appropriate Loan Document may
otherwise provide with respect to the Senior Debt governed thereby, by the
action of such holders as may be required under such Loan Document.
(i) change the amount, manner, place or terms of or
renew or alter Senior Debt or amend such Loan Document in any manner or enter
into or amend in any manner any other agreement relating to Senior Debt
(including provisions restricting or further restricting payments of principal
of and interest on Subordinated Debt);
(ii) sell, exchange, release or otherwise deal with
any property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, Senior Debt in accordance with the terms of any of the Loan
Documents or any other present or future agreement between the Borrower and any
Guarantor and the applicable Senior Secured Parties;
(iii) release anyone liable in any manner for the
payment or collection of Senior Debt;
(iv) exercise or refrain from exercising any rights
against the Borrower and others (including the Subordinated Debt Holder); and
(v) apply any sums by whomsoever paid or however
realized to Senior Debt.
15.6 Waiver of Notice of Acceptance. Notice of acceptance of
the agreement contained in this Section 15 is hereby waived.
15.7 Marking Books. The Subordinated Debt holder will xxxx its
books to show that the Subordinated Debt is subordinated to Senior Debt in the
manner and to the extent herein set forth.
15.8 No Violation, etc. The Subordinated Debt Holder
represents and warrants that (i) neither the execution nor delivery hereof nor
fulfillment nor compliance with the terms and provisions hereof will conflict
with, or result in a breach of the terms, conditions or provisions of, or
constitute a default under, any agreement or instrument to which the
Subordinated Debt Holder is now subject and (ii) none of the Subordinated Debt
is or will be subordinated to any indebtedness of the Borrower other than Senior
Debt.
15.9 Effect of Amendment. On and after the effectiveness of
this Guaranty Agreement, any reference to the Guaranty Agreement or similar term
used in any Loan Documents shall mean and refer to this Guaranty Agreement, as
amended modified or supplemented, from time to time.
11
229
IN WITNESS WHEREOF, the undersigned have executed this Guaranty
Agreement on the date and year first above written.
BORROWER: SUSQUEHANNA MEDIA CO.
By:
Name: Xxxx X. Xxxxxxx
Title: Treasurer
Notice Information:
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
GUARANTORS:
SUSQUEHANNA CABLE CO.
SUSQUEHANNA CABLE INVESTMENT CO.
CABLE TV OF EAST PROVIDENCE, INC.
CASCO CABLE TELEVISION, INC.
CASCO CABLE TELEVISION OF BATH, MAINE
SBC CABLE CO.
YORK CABLE TELEVISION, INC.
SUSQUEHANNA RADIO CORP.
RADIO CINCINNATI, INC.
RADIO INDIANAPOLIS, INC.
RADIO METROPLEX, INC.
TEXAS STAR RADIO, INC.
RADIO SAN FRANCISCO, INC.
Signature Page to Guaranty Agreement
230
KRBE CO.
KNBR, INC.
BAY AREA RADIO CORP.
WSBA LICO, INC.
WVAE LICO, INC.
WNNX LICO, INC.
KNBR LICO, INC.
KRBE LICO, INC.
INDIANAPOLIS RADIO LICENSE CO.
SUSQUEHANNA DATA SERVICES, INC.
SUSQUEHANNA FIBER SYSTEMS, INC.
MEDIA PCS VENTURES, INC.
KFFG LICO, INC.
KPLX RADIO, INC.
KPLX LICO, INC.
KLIF BROADCASTING, INC.
XXXX XXXX, INC.
KLIF RADIO, INC.
INDY LICO, INC.
WRRM LICO, INC.
Signature Page to Guaranty Agreement
231
WFMS LICO, INC.
By:_______________________________
Xxxx X. Xxxxxxx, on behalf of each
of the foregoing as Treasurer
Notice Information:
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
KPLX LIMITED PARTNERSHIP, by KPLX Radio, Inc., its
General Partner
KLIF BROADCASTING LIMITED PARTNERSHIP, by KLIF
Radio, Inc., its General Partner
By:______________________________________
Xxxx X. Xxxxxxx on behalf of each of the
foregoing as Treasurer of the General Partner
Notice Information:
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
Signature Page to Guaranty Agreement
232
AGENT: FIRST UNION NATIONAL BANK,
in its capacity as Agent
By:
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
Notice Information:
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx, Senior Vice President
Signature Page to Guaranty Agreement
233
EXHIBIT A
FORM OF ADDITIONAL GUARANTOR JOINDER
Guaranty and Suretyship Agreement dated as of , 1999 from
Susquehanna Media Co. and Subsidiaries as Guarantors party thereto,
from time to time, in favor of First Union National Bank, as Collateral
Agent (the "Guaranty Agreement")
Reference is made to the Guaranty Agreement as defined above;
capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in, or by reference in, the Guaranty Agreement.
The undersigned hereby agrees that upon delivery of this Additional
Guarantor Joinder to the Agent referred to above or its successor, the
undersigned shall be and become a Guarantor for all purposes of the Guaranty
Agreement as fully and to the same extent as if it were an original signatory
thereto and shall be deemed to have made the representations and warranties set
forth in Section 4 therein as of the date of execution and delivery of this
Additional Guarantor Joinder and at any future dates that such representations
must be restated pursuant to the terms of the Loan Documents. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, THE UNDERSIGNED SPECIFICALLY ACKNOWLEDGES AND
AGREES TO THE ARBITRATION CLAUSE SET FORTH IN SECTION 11 THEREOF AND TO THE
CONSENT TO JURISDICTION AND WAIVER OF JURY TRIAL PROVISIONS SET FORTH IN SECTION
12 THEREOF.
Attached hereto are supplemental and/or replacement Exhibits to the
Guaranty Agreement, as applicable.
An executed copy of this Joinder shall be delivered to the Agent, and
the Agent and the Senior Secured Parties may rely on the matters set forth
herein in entering into and extending credit under the Credit Agreement on or
after the date hereof. This Joinder shall not be modified, amended or terminated
without the prior written consent of the Agent.
[Name of New Guarantor]
By:
Title:
Address:
Dated:
234
STOCK PLEDGE AGREEMENT
("SPC Pledge Agreement")
SPC PLEDGE AGREEMENT made as of the 12th day of May, 1999, by and
between SUSQUEHANNA PFALTZGRAFF CO., a Delaware corporation, ("Pledgor") and
FIRST UNION NATIONAL BANK, a national banking association as agent on behalf of
the Senior Secured Parties (as defined in the Credit Agreement referred to
below). First Union National Bank in its capacity as agent hereunder, with its
successors and assigns, is hereinafter referred to as "Agent."
BACKGROUND OF AGREEMENT
On the date hereof certain lenders and issuers of letters of credit and
FIRST UNION NATIONAL BANK as Agent have entered into a Credit Agreement (as
amended, extended, supplemented, restated, or otherwise modified or refinanced,
including without limitation any amendment involving an increase in principal,
interest rate or other amount, the "Credit Agreement") with Susquehanna Media
Co. (the "Borrower"), pursuant to which such lenders and issuers agreed to lend
certain sums to the Borrower upon the terms and conditions specified in the
Credit Agreement under (1) a revolving credit facility with a swing loan
subfacility, and (2) two separate term loan facilities, and to issue, or
participate in the issuance of, certain letters of credit. In addition, the
Credit Agreement currently requires the Borrower under certain conditions to
enter into certain interest rate hedging agreements.
One of the prerequisites to the making of advances by the Lenders (as
defined in the Credit Agreement) under the Credit Agreement and the issuing of
letters of credit thereunder is that the Pledgor (which owns one hundred percent
(100%) of the outstanding common stock of the Borrower) shall have entered into
this SPC Pledge Agreement and shall have granted to the Agent for the benefit of
the Senior Secured Parties a security interest in and to all of the shares of
capital stock or other securities of the Borrower owned by Pledgor to secure the
Borrower's obligations to the Senior Secured Parties. This SPC Pledge Agreement
is being executed and delivered pursuant to Section 4.1.5 of the Credit
Agreement.
Pledgor acknowledges that the loan made pursuant to the Credit
Agreement will benefit the Borrower and thereby also benefit Pledgor. Pledgor
also acknowledges that it was and will be Solvent, before or after giving effect
to the transactions contemplated by the Credit Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, and in consideration of the mutual covenants herein contained and other
good and valuable consideration receipt of which is hereby acknowledged, agree
as follows:
235
SECTION 1. DEFINITIONS
Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in, or by reference in, the Credit
Agreement or the Uniform Commercial Code, as applicable. The following terms
shall have the following meanings:
"Collateral" shall mean (without duplication):
(i) all Investment Property evidencing ownership interests in,
or related to, the Borrower and/or any Subsidiary of the Borrower, including,
without limitation, shares of capital stock and other securities owned by the
Pledgor listed on Schedule 1 hereto (as the same may be modified from time to
time pursuant to the terms hereof), and any other shares of capital stock of
and/or other securities of and/or ownership interests in the Borrower and/or any
Subsidiary of the Borrower obtained in the future by the Pledgor, and, in each
case, all certificates representing such shares and/or securities and/or
ownership interests and, in each case, all rights, options, warrants, stock,
other securities and ownership interests which may hereafter be received,
receivable or distributed in respect of, or exchanged for, any of the foregoing
(all of the foregoing being referred to herein as the "Pledged Securities");
(ii) all other property which may be delivered to and held by
the Agent pursuant to the terms hereof of any character whatsoever into which
any of the foregoing may be converted or which may be substituted for any of the
foregoing; and
(iii) all Proceeds of the Pledged Securities and of such other
property, including, without limitation, all dividends, cash, securities or
other property at any time and from time to time acquired, receivable or
otherwise distributed in respect of, or in exchange for, any of or all such
Pledged Securities or other property.
"FCC" shall mean the Federal Communications Commission or any
governmental body succeeding to the functions of such commission.
"FCC License" shall mean any radio, microwave, or other
communications license, permit, certificate of compliance, franchise, approval
or authorization granted or issued by the FCC for control, ownership,
acquisition, construction, operation, management or maintenance of domestic
cable television systems, radio broadcasting systems or businesses directly
related thereto.
"Franchise" shall mean a franchise, permit or license
(including, without limitation, an FCC License), designation or certificate
granted by the United States or any other country, territory or state or a city,
town, county or other municipality, PUC or any other regulatory authority
pursuant to which a Person has the right to own, control, acquire, construct,
operate, manage or maintain a domestic cable television system, radio
broadcasting system or business directly related thereto.
-2-
236
"Lien" shall mean, as to any Person, any mortgage, lien,
pledge, adverse claim, charge, security interest or other encumbrance in or on,
or any interest or title of any vendor, lessor, lender or other secured party to
or of such Person under any conditional sale or other title retention agreement
or capital lease with respect to, any property or asset of such Person.
"Necessary Endorsement" shall mean undated stock powers
endorsed in blank (with signatures properly guaranteed) or other proper
instruments of assignment duly executed and such other instruments or documents
as the Agent may reasonably request.
"Proceeds" shall have the meaning assigned to such term under
the Pennsylvania Uniform Commercial Code and, in any event, shall include (i)
any and all proceeds of any guarantee, insurance or indemnity payable to the
Pledgor from time to time with respect to any of the Collateral; (ii) any and
all payments (in any form whatsoever) made or due and payable to the Pledgor
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
governmental authority (or any person acting under color of governmental
authority); and (iii) any and all other amounts from time to time paid or
payable with respect to or in connection with any of the Collateral.
"PUC" shall mean any state or local regulatory agency or body
that exercises jurisdiction over the ownership, construction, operation,
acquisition, management or maintenance of domestic cable television systems,
radio broadcasting systems or businesses directly related thereto.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code, as amended, as is in effect in the Commonwealth of Pennsylvania or in any
applicable state as the case may be.
SECTION 2. CREATION OF SECURITY INTEREST
As security for the payment and performance in full of the
Senior Secured Obligations, the Pledgor hereby hypothecates, pledges, assigns,
sets over and delivers unto the Agent, and grants to the Agent, for the equal
(in priority) and ratable benefit of the Senior Secured Parties, a continuing
first priority security interest in all its right, title and interest in, to and
under the Collateral, TO HAVE AND TO HOLD the Collateral, together with all
right, title, interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Agent, forever; subject, however, to the terms,
covenants and conditions hereinafter set forth.
SECTION 3. NON-RECOURSE GUARANTY
The Pledgor hereby irrevocably and unconditionally guaranties
to the Agent the full and timely payment and performance of the Senior Secured
Obligations, it being the Pledgor's intent that the guaranty set forth in this
Section 3 shall be a guaranty of payment and not a guaranty of collection. The
guaranty hereunder is a primary and original obligation of the Pledgor and is an
absolute, unconditional guaranty of payment and performance which is irrevocable
and, to the extent allowed by applicable law, shall remain in full force and
effect
-3-
237
without respect to future changes in conditions. The Pledgor shall have no right
of subrogation, reimbursement or indemnity whatsoever and no right of recourse
to or with respect to any assets or property of the Borrower or to any
Collateral. The Pledgor's liability under this SPC Pledge Agreement, and the
rights and remedies of Agent hereunder, shall be immediate and shall not be
contingent upon the exercise or enforcement by Agent of whatever remedies it may
have against the Borrower or others or the enforcement of any lien or the
realization upon any security that Agent may at any time possess.
Notwithstanding the foregoing paragraph, the recourse of Agent
in respect of the guaranty of the Pledgor set forth in this Section 3 is limited
to the Pledgor's interest in the Collateral. However, this paragraph shall not
limit Agent's rights against the Pledgor as a result of any breach by the
Pledgor of any representation, warranty or covenant of the Pledgor set forth in
this SPC Pledge Agreement.
SECTION 4. DELIVERY OF COLLATERAL
4.1 At Time of Execution of Agreement. Contemporaneously with
the execution of this SPC Pledge Agreement or, in any event, prior to the
Closing Date, the Pledgor shall deliver or cause to be delivered to the Agent
(i) any and all certificates and other instruments evidencing the Pledged
Securities, (ii) any and all other certificates or other instruments or
documents representing any of the Collateral and (iii) all other property
comprising part of the Collateral, in each case along with the Necessary
Endorsements.
4.2 Subsequent Delivery of Collateral. If the Pledgor shall
become entitled to receive or shall receive any securities or other property
(including, without limitation, shares of Pledged Securities acquired after the
Closing Date, or any options, warrants, rights or other similar property or
certificates representing a stock dividend, or any distribution in connection
with any recapitalization, reclassification or increase or reduction of capital,
or issued in connection with any reorganization of the Borrower or any
Subsidiary, but excluding dividends permitted to be retained under Section 6) in
respect of the Pledged Securities (whether as an addition to, in substitution
of, or in exchange for, such Pledged Securities or otherwise), the Pledgor
agrees:
(i) to accept the same as the agent of the Agent,
(ii) to hold the same in trust on behalf of and for
the benefit of the Agent, and
(iii) to deliver any and all certificates or
instruments evidencing the same to the Agent on or before the close of business
on the seventh (7th) Business Day following the receipt thereof by the Pledgor,
in the exact form received together with the Necessary Endorsements, to be held
by the Agent subject to the terms of this SPC Pledge Agreement, as additional
Collateral.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF PLEDGOR
-4-
238
5.1 Representations and Warranties. Pledgor represents and
warrants as follows:
(i) Pledgor is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware. Pledgor
has perpetual corporate existence, and Pledgor has the corporate power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage. Pledgor has not failed to
qualify to do business in any state or jurisdiction where the failure to so
qualify could have a material adverse effect on (a) the ability of Pledgor to
perform its obligations hereunder, (b) the binding nature, validity or
enforceability of this SPC Pledge Agreement, or (c) the validity, perfection,
priority or enforceability of the Lien of the Agent for the benefit of the
Senior Secured Parties in the Collateral. The principal place of business of
Pledgor is located at the address set forth on the signature page hereto and the
sole name under which Pledgor conducts business is set forth in the first
paragraph of this SPC Pledge Agreement.
(ii) All the Pledged Securities are validly issued,
fully paid and nonassessable, and are owned by Pledgor beneficially and of
record free and clear of any Lien, except for the Liens created pursuant to this
SPC Pledge Agreement. The execution and delivery by Pledgor of this SPC Pledge
Agreement and the delivery of the Collateral to the Agent simultaneously
therewith has created a valid and perfected first priority security interest in
the Collateral in favor of the Agent, for the equal (in priority) and ratable
benefit of the Senior Secured Parties, to secure payment of the Senior Secured
Obligations.
(iii) Pledgor has the corporate power to execute,
deliver and carry out the terms and provisions of this SPC Pledge Agreement, and
Pledgor has taken all necessary corporate action (including, without limitation,
any consent of stockholders required by law or by its articles of incorporation
or bylaws or other organizational documents) to authorize the execution,
delivery and performance of this SPC Pledge Agreement. This SPC Pledge Agreement
constitutes the authorized, valid and legally binding obligation of Pledgor
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (regardless of whether such enforcement is sought in a
court of law or at equity).
(iv) The execution and delivery of this SPC Pledge
Agreement, the consummation of the transactions contemplated hereby and
compliance with the terms and provisions hereof, will not (x) violate any
provision of law or any injunction or any applicable regulation, order, writ,
judgment or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality, or (y) conflict or be inconsistent with, or
result in any breach of, any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to impose) any Lien, other than the Liens created hereby,
upon any of the Collateral pursuant to the terms of, any agreement, indenture,
franchise, license, permit, mortgage or deed of trust to which Pledgor is a
party or by which Pledgor is bound, or to which Pledgor is subject, or (z)
violate any of the provisions of the articles of incorporation, bylaws or other
organizational documents of Pledgor.
-5-
239
(v) No consent, approval or authorization of any
Person, or recording, filing, registration, notice or other similar action with
or to any Person, is required in order to insure the legality, validity, binding
effect or enforceability of this SPC Pledge Agreement, except such filings as
may be required as contemplated by Section 7.30 of the Credit Agreement.
(vi) The shares of stock and securities of the
Borrower included in the Collateral are not subject to any charter, bylaw,
statutory, contractual or other restriction governing their issuance, transfer,
ownership or control which restriction would limit the effectiveness or
enforceability of the pledge and security interest created under this SPC Pledge
Agreement, except to the extent that regulatory considerations reflected in
Section 12 hereof may affect the enforceability of certain rights and remedies
of the Agent and the Senior Secured Parties hereunder.
5.2 Survival of Representations and Warranties. All the
foregoing representations and warranties shall survive the execution and
delivery of this SPC Pledge Agreement and shall continue until this SPC Pledge
Agreement is terminated as provided herein and shall not be affected or waived
by any inspection or examination made by or on behalf of Agent or any Senior
Secured Party.
SECTION 6. VOTING; DIVIDENDS
6.1 Rights Prior To Default. Other than during the existence
of an Event of Default,
(i) Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Securities or any
part thereof for any purpose not inconsistent with the terms of the Loan
Documents.
(ii) Subject to and limited by the restrictions on
dividends and other payments in respect of the Collateral set forth in the Loan
Documents, Pledgor shall be entitled to receive and retain any and all dividends
and other payments paid in respect of the Collateral, provided, however, that
any and all
(a) dividends or other payments paid or
payable other than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, or in exchange for,
any Collateral,
(b) dividends and other distributions paid
or payable in cash in respect of any Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and
(c) except as otherwise provided in the
Credit Agreement, cash paid, payable or otherwise distributed in redemption of
or exchange for, any Collateral,
-6-
240
shall forthwith be delivered to the Agent to hold as Collateral and shall, if
received by Pledgor, be received in trust for the benefit of the Agent, be
segregated from the other property or funds of Pledgor, and be forthwith
delivered to the Agent as Collateral in the same form as so received (with any
Necessary Endorsement).
(iii) The Agent shall execute and deliver to the
Pledgor all such proxies and other instruments as the Pledgor may reasonably
request for the purpose of enabling the Pledgor to exercise the voting and other
rights which it is entitled to exercise pursuant to paragraph (i) above and to
receive the dividends or interest payments which it is authorized to receive and
retain pursuant to paragraph (ii) above.
6.2 Rights After a Default. Upon the occurrence and during the
continuation of an Event of Default and as more fully set forth in Section 11
below,
(i) Subject to Section 12 below, all rights of the
Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to subsection 6. 1 above and to
receive the dividends and payments which it would otherwise be authorized to
receive and retain pursuant to subsection 6.1 above shall cease, and all such
rights shall thereupon become vested in the Agent who shall have the sole right
to exercise such voting and other consensual rights and to receive and hold as
Collateral such dividends and payments.
(ii) All dividends and other payments which are
received by the Pledgor contrary to the provisions of paragraph (i) of this
subsection 6.2 shall be received in trust for the benefit of the Agent, shall be
segregated from other funds of the Pledgor and shall forthwith be paid over to
the Agent as Collateral in the same form as so received (with any Necessary
Endorsement).
SECTION 7. COVENANTS OF PLEDGOR
7.1 Pledgor covenants that until this SPC Pledge Agreement is
terminated in accordance with the terms hereof:
(i) Pledgor shall not transfer, sell, encumber or
otherwise dispose of any of the Collateral, except in connection with a sale
permitted under the provisions of the Credit Agreement providing for
dispositions to third parties free of Liens, and shall not create, assume or
suffer to exist any Lien in or on any of the Collateral, except the Liens
created hereunder.
(ii) To the extent permitted by applicable law,
Pledgor hereby waives any rights which it otherwise may have under Section 9-112
of the Uniform Commercial Code as in effect in the Commonwealth of Pennsylvania.
(iii) Pledgor shall not change the location of its
principal office or its name referred to in Section 5.1(i), or conduct business
under any other name, without having first (a) given to Agent at least thirty
(30) days' prior written notice of same and (b) executed,
-7-
241
delivered and filed (and paid or cause to be paid by the Borrower all filing
fees and taxes) all such documents as may be necessary or advisable in the
opinion of Agent to continue to perfect and protect the Liens created hereby.
(iv) Pledgor shall vote the stock and securities
included in the Collateral in a manner consistent with the covenants and
agreements of Pledgor, the Borrower and the Subsidiaries of the Borrower set
forth in the Loan Documents, including, without limitation, restricting the
issuance of additional shares of stock of the Borrower and its Subsidiaries (or
rights or options therefore) except such as is pledged to the Agent pursuant to
the terms of the Loan Documents.
7.2 Proceeds of Collateral Disposition. During the continuance
of a Potential Event of Default or an Event of Default, at the Agent's request,
the Pledgor shall establish and maintain at all times a trust account with the
Agent, and all Proceeds, before or after an Event of Default, shall be deposited
directly and immediately into such account. The Pledgor shall be responsible for
all costs and fees arising with respect to such account at the standard rates.
The Pledgor expressly and irrevocably authorizes and consents to the ability of
the Agent to charge such trust account, in its sole discretion, and recover from
the funds on deposit therein, from time to time and at any time, and apply those
funds against any and all Senior Secured Obligations.
SECTION 8. FURTHER ASSURANCES
The Pledgor agrees that at any time and from time to time, at
the expense of the Borrower, the Pledgor will (and will require the Borrower to)
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that the Agent may
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Agent to exercise and enforce
its rights and remedies hereunder with respect to any Collateral including,
without limitation, using its best efforts to cooperate in obtaining any FCC,
PUC, or other governmental approval of any action or transaction contemplated
hereby or thereby.
SECTION 9. AGENT APPOINTED ATTORNEY-IN-FACT, MAY PERFORM CERTAIN DUTIES
9.1 Appointment as Attorney-in-fact. Effective upon the
occurrence of an Event of Default, and so long as Agent reasonably believes such
Event of Default is continuing, the Pledgor hereby appoints the Agent as its
true and lawful agent, proxy, and attorney-in-fact for the purpose of carrying
out this SPC Pledge Agreement and taking any action and executing any instrument
which the Agent may deem necessary or advisable to accomplish the purposes
hereof including, without limitation, the execution on behalf of Pledgor of any
financing or continuation statement with respect to the security interest
created hereby and the endorsement of any drafts or orders which may be payable
to Pledgor in respect of, arising out of, or relating to any or all of the
Collateral. This power shall be valid until the termination of the security
interests created hereunder, any limitation under law as to the length or
validity of a proxy to the contrary notwithstanding. This appointment is
irrevocable and coupled with an interest and any proxies
-8-
242
heretofore given by the Pledgor to any other Person are revoked. The designation
set forth herein shall be deemed to amend and supersede any inconsistent
provision in the articles of incorporation, bylaws or other documents to which
Pledgor or the Borrower is subject or to which either is a party.
9.2 Registration of Securities. Pledgor shall cause the
Borrower to, and the Borrower shall, register the pledge of the shares included
in the Collateral in the name of the Agent on the books of the Borrower. Upon
the occurrence of an Event of Default, Pledgor shall at the direction of Agent
cause the Borrower to, and the Borrower shall, register the shares included in
the Collateral in the name of the Agent on the books of the Borrower.
9.3 Performance of Pledgor's Duties. In furtherance, and not
by way of limitation, of the foregoing subsections 9.1 and 9.2, if (at any time
either before or after the occurrence of an Event of Default) the Pledgor fails
to perform any agreement contained herein, the Agent may (but under no
circumstance is obligated to) perform such agreement and any expenses incurred
shall be payable by the Borrower provided, however, that nothing herein shall be
deemed to relieve the Pledgor from fulfilling any of its obligations hereunder.
9.4 Acts May Be Performed By Agents and Employees. Any act of
the Agent to be performed pursuant to this Section 9 or elsewhere in this SPC
Pledge Agreement may be performed by agents or employees of the Agent.
SECTION 10. STANDARD OF CARE.
10.1 In General. No act or omission of any Senior Secured
Party (or agent or employee thereof) shall give rise to any defense,
counterclaim or offset in favor of the Pledgor or any claim or action against
any such Senior Secured Party (or agent or employee thereof), in the absence of
gross negligence or willful misconduct of such Senior Secured Party as
determined in a final, nonappealable judgment of a court of competent
jurisdiction. The Agent shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral
is accorded treatment substantially equal to that which the Agent accords to its
own property, it being understood that it has no duty to take any action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Collateral or to preserve any rights of any parties and shall
only be liable for losses which are a result of its gross negligence or willful
misconduct as determined in a final, nonappealable judgment of a court of
competent jurisdiction.
10.2 Reliance on Advice of Counsel. In taking any action under
this SPC Pledge Agreement, the Agent shall be entitled to rely upon the advice
of counsel of Agent's choice and shall be fully protected in acting on such
advice whether or not the advice rendered is ultimately determined to have been
accurate.
SECTION 11. DEFAULT
-9-
243
11.1 Certain Rights Upon Default. In addition to any other
rights accorded the Senior Secured Parties hereunder, upon the occurrence and
during the continuation of an Event of Default:
11.1.1 The Agent shall be entitled to receive any
cash dividends or payments on the Collateral and subject to Section 12 below, to
exercise in the Agent's discretion all voting rights pertaining thereto as more
fully set forth in Section 6 above. Without limiting the generality of the
foregoing, subject to Section 12 below, the Agent shall have the right to
exercise all rights with respect to the Collateral as if it were the sole and
absolute owner thereof, including, without limitation, to vote and/or to
exchange, at its sole discretion, any or all of the Collateral in connection
with a merger, reorganization, consolidation, recapitalization or other
readjustment concerning or involving the Collateral or the Borrower, any
Subsidiary, the Borrower or the Pledgor.
11.1.2 Pledgor shall (and shall require the Borrower
to) take any action necessary or required or requested by the Agent in order to
allow it fully to enforce the security interest in the Collateral hereunder and
to realize thereon to the fullest extent possible, including, but not limited
to, the filing of any claims with any court, liquidator, trustee, guardian,
receiver or other like person or party.
11.1.3 The Agent shall have all of the rights of a
secured party under the Uniform Commercial Code of Pennsylvania, as amended, and
any other applicable law including the right to sell on such terms as it may
deem appropriate any or all of the Collateral at one or more public or private
sales upon at least ten (10) Business Days' written notice to Pledgor of the
time and place of any public sale and of the date on which the Collateral will
first be offered for sale in the case of any private sale. Agent shall have the
right to bid thereat or purchase any part or all the Collateral in its own or a
nominee's name (subject to applicable FCC or PUC requirements or restrictions).
The Agent shall have the right to apply the proceeds of the sale, after
deduction for any costs and expenses of sale (including any liabilities incurred
in connection therewith including reasonable attorneys' fees and allocated costs
of attorneys who are employees of the Agent), to the payment of the Senior
Secured Obligations in any manner or order which the Agent, in its sole
discretion, may elect (whether pursuant to the Credit Agreement or otherwise),
to the payment of any other amount required by law (including without limitation
Section 9-504(l)(c) of the Uniform Commercial Code), and to pay any remaining
proceeds to Pledgor or its successors or assigns or to whomsoever may lawfully
be entitled to receive the same or as a court of competent jurisdiction may
direct, without further notice to or consent of Pledgor and without regard to
any equitable principles of marshalling or other like equitable doctrines.
Pledgor hereby acknowledges and agrees that the notice provided for above is
reasonable and expressly waives any rights it may have of equity of redemption,
stay or appraisal with respect to the Collateral.
11.1.4 For purposes hereof, a written agreement to
purchase the Collateral or any portion thereof shall be treated as a sale
thereof; the Agent shall be free to carry out such sale pursuant to such
agreement, and Pledgor shall not be entitled to the return of the Collateral or
any portion thereof, notwithstanding the fact that after Agent shall have
entered into such an
-10-
244
agreement, any and all Events of Default shall have been remedied and the Senior
Secured Obligations paid in full.
11.1.5 The Agent shall have the right, with full
power of substitution either in the Agent's name or the name of the Pledgor, to
ask for, demand, xxx, collect and receive any and all moneys due or to become
due under and by virtue of the Collateral and to settle, compromise, prosecute
or defend any action, claim or proceeding with respect thereto, provided,
however, that nothing herein shall be construed as requiring the Agent to take
any action, including, without limitation, requiring or obligating the Agent to
make any inquiry as to the nature or sufficiency of any payment received, or to
present or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby.
11.1.6 The Agent shall be entitled to the appointment
of a receiver or trustee for all or any part of the businesses of the Borrower
or Pledgor, which receiver shall have such powers as may be conferred by law or
the appointing authority.
11.2 Agent May Exercise Less Than All Rights. Pledgor hereby
acknowledges and agrees that the Agent is not required to exercise all remedies
and rights available to it equally with respect to all of the Collateral, and
the Agent may select less than all of the Collateral with respect to which the
remedies as determined by the Agent may be exercised.
11.3 Duties of Pledgor/Borrower With Respect to Transferee. In
the event that, upon an occurrence of an Event of Default, the Agent shall sell
all or any of the Collateral to another party or parties (herein called
"Transferee") or shall purchase or retain all or any of the Collateral, Pledgor
shall cause the Borrower to:
(i) Deliver to the Agent or Transferee, as the case
may be, the articles of incorporation, bylaws, minute books, stock certificate
books, corporate seals, deeds, leases, indentures, agreements, evidences of
indebtedness, books of account, financial records and all other documents and
records of the Borrower;
(ii) Use its best efforts to obtain resignations of
the persons then serving as officers and directors of the Borrower, if so
requested; and
(iii) Use its best efforts to obtain any approvals
that are required by any governmental or regulatory body in order to permit the
sale of the Collateral to the Transferee or the purchase or retention of the
Collateral by the Agent and allow the Transferee or the Agent to continue the
business of the issuer.
SECTION 12. ACKNOWLEDGEMENT OF REGULATORY CONSIDERATIONS; UNIQUE NATURE
OF ASSETS.
12.1 FCC/PUC Approval. It is hereby acknowledged that transfer
of certain Collateral and the exercise of certain other remedies provided herein
may constitute a transfer of
-11-
245
an FCC License or other Franchise or a sale or transfer of control of a holder
of an FCC License or other Franchise, requiring approval of the FCC or PUC,
pursuant to rules and regulations of the FCC or PUC. Notwithstanding anything to
the contrary contained in this Agreement, the Agent will not knowingly take any
action pursuant to this Agreement which would constitute or result in assignment
of an FCC License or other Franchise or any transfer of control of the holder of
an FCC License or other Franchise if such assignment of license or transfer of
control would require under then existing law (including the written rules and
regulations promulgated by the FCC or any PUC), the prior approval of the FCC or
such PUC, without first obtaining such approval. In connection with this
provision, the Agent shall be entitled to rely upon the advice of counsel of
Agent's choice whether or not the advice rendered is ultimately determined to
have been accurate.
12.2 Pledgor/Borrower Assistance in Obtaining Approval.
Without limiting the generality of Section 8 above, if counsel to the Agent
reasonably determines that the consent of the FCC or PUC is required in
connection with any of the actions hereunder or under any other Loan Document,
then the Pledgor (at the cost and expense of the Borrower) agrees to use its
best efforts to secure such consent and to cooperate fully with the Agent in any
action to secure such consent. Further, the Pledgor shall use its best efforts
to require the Borrower to do the same. Without limiting the generality of the
foregoing, Pledgor and the Borrower shall promptly execute and file and/or cause
the execution and filing of all applications, certificates, instruments, and
other documents and papers that the Agent deems necessary or advisable to file
in order to obtain any necessary governmental consent, approval, or
authorization, and if the Borrower or Pledgor fails or refuses to execute (or
fails or refuses to cause another Person to execute) such documents, the Agent
or the clerk of any court of competent jurisdiction may execute and file the
same on behalf of the Borrower and Pledgor (or either of them) or such other
Person.
12.3 Unique Nature of Assets. It is agreed that the FCC
Licenses and other Franchises held by the Borrower and its Subsidiaries are
unique assets which (or the control of which) may have to be transferred in
order for the Agent adequately to realize the value of its security interest. A
violation of the covenants set forth in this Section would result in irreparable
harm to the Agent for which monetary damages are not readily ascertainable.
Therefore, in addition to any other remedy which may be available to the Agent
at law or in equity, the Agent shall have the remedy of specific performance of
the provisions of this Section. To enforce the provisions of this Section, the
Agent is authorized to request the consent or approval of the FCC or PUC to a
voluntary or an involuntary transfer of control of any FCC License or other
Franchise or sale or transfer of control of a holder of an FCC License or other
Franchise.
12.4 Selection by Agent of Different Transferee. If, for any
reason, the FCC or PUC does not approve within a reasonable period of time
(which period shall be determined conclusively by the Agent), the initial
application for approval of the transfer of the Collateral, the Agent shall then
have the right to transfer the Collateral to such other Person as the Agent
shall select (subject to the prior approval of the FCC or PUC). With respect to
such subsequent selection, Pledgor agrees to cooperate fully in the manner set
forth above. Exercise by the Agent of the right to such cooperation shall not be
exhausted by the initial or any subsequent exercise thereof.
-12-
246
SECTION 13. SECURITIES LAW PROVISION
Pledgor recognizes that the Agent may be limited in its
ability to effect a sale to the public of all or part of the Collateral by
reason of certain prohibitions in the Securities Act of 1933, as amended, or
other federal or state securities laws (collectively, the "Securities Laws"),
and may be compelled to resort to one or more sales to a restricted group of
purchasers who may be required to agree to acquire the Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. Pledgor agrees that sales so made may be at prices and on terms less
favorable than if the Collateral were sold to the public, and that the Agent has
no obligation to delay the sale of any Collateral for the period of time
necessary to register the Collateral for sale to the public under the Securities
Laws. Pledgor shall (and require the Borrower to) cooperate with the Agent in
its attempts to satisfy any requirements under the Securities Laws (including
without limitation registration thereunder if requested by Agent) applicable to
the sale of the Collateral by the Agent at the Borrower's cost and expense.
SECTION 14. SECURITY INTEREST ABSOLUTE; WAIVERS BY PLEDGOR
14.1 Absolute Nature of Security Interest All rights of the
Agent hereunder, the grant of the security interest in the Collateral and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of any of the terms
of the Loan Documents or any other instrument or document relating hereto or
thereto, (ii) any change in the time, manner or place of payment of, increases
in, or in any other term of, all or any of the Senior Secured Obligations, or
any other amendment or waiver of any terms related thereto, (iii) any exchange,
release or nonperfection of any other collateral, or any release or amendment or
waiver of any guaranty, or (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Pledgor or any other
Person in respect of the Senior Secured Obligations or in respect of this SPC
Pledge Agreement or any other Loan Document or any obligations hereunder or
thereunder.
14.2 No Duty To Marshal Assets. The Agent shall have no
obligation to marshal any assets in favor of the Pledgor or the Borrower or any
other Person or against or in payment of any or all of the Senior Secured
Obligations.
14.3 Waiver of Right of Subrogation, Etc. The Pledgor
acknowledges that until all the Senior Secured Obligations shall have been
indefeasibly paid in full, the Pledgor shall have no right (or hereby waives any
such right) of subrogation, reimbursement, or indemnity whatsoever in respect of
the Borrower arising out of remedies exercised by the Agent hereunder.
14.4 Other Waivers. The Pledgor hereby waives notice of
acceptance of this SPC Pledge Agreement. The Pledgor further waives presentment
and demand for payment of any of the Senior Secured Obligations, protest and
notice of dishonor or default with respect to any of the Senior Secured
Obligations, and all other notices to which the Pledgor might otherwise be
entitled, except as otherwise expressly provided in this SPC Pledge Agreement or
any of the other Loan Documents. The Pledgor (to the extent that it may lawfully
do so)
-13-
247
covenants that it shall not at any time insist upon or plead, or in any manner
claim or take the benefit of, any stay, valuation, appraisal or redemption now
or at any time hereafter in force that, but for this waiver, might be applicable
to any sale made under any judgment, order or decree based on this SPC Pledge
Agreement or any other Loan Document; and the Pledgor (to the extent that it may
lawfully do so) hereby expressly waives and relinquishes all benefit of any and
all such laws and hereby covenants that it will not hinder, delay or impede the
execution of any power in this SPC Pledge Agreement or in any other Loan
Document delegated to the Agent, but that it will suffer and permit the
execution of every such power as though no such law or laws had been made or
enacted.
SECTION 15. NON-WAIVER AND NON-EXCLUSIVE REMEDIES
15.1 Non-Exclusive Remedies. No remedy or right herein
conferred upon, or reserved to the Agent is intended to be to the exclusion of
any other remedy or right, but each and every such remedy or right shall be
cumulative and shall be in addition to every other remedy or right given
hereunder or under any other Loan Document or under law.
15.2 Delay and Non-Waiver. No delay or omission by the Agent
to exercise any remedy or right hereunder shall impair any such remedy or right
or shall be construed to be a waiver of any Event of Default, or an acquiescence
therein, nor shall it affect any subsequent Event of Default of the same or of a
different nature.
SECTION 16. CONTINUING SECURITY INTEREST; HEIRS AND ASSIGNS
This SPC Pledge Agreement shall create a continuing security
interest in the Collateral and shall (i) remain in full force and effect until
payment in full of the Senior Secured Obligations or until terminated pursuant
to Section 17 below, (ii) be binding upon the Pledgor, its successors and
assigns and (iii) inure to the benefit of the Agent, the other Senior Secured
Parties and their respective successors, transferees and assigns provided,
however, that the Pledgor shall not be permitted to transfer any of its
obligations hereunder.
SECTION 17. TERMINATION OF AGREEMENT; RELEASE OF COLLATERAL
17.1 Termination of Agreement. At such time as (a) the Senior
Secured Parties have no obligation to make further loans or other extensions of
credit to the Borrower under the Credit Agreement, and (b) all the Senior
Secured Obligations have been indefeasibly paid and/or performed in full, this
SPC Pledge Agreement shall terminate and the Collateral shall be released
pursuant to subsection 17.2 below, provided that if at the time of the payment
in full of the Senior Secured Obligations (i) such payment and performance is
not subject to any filed or threatened claim, contest, voidance or offset of any
kind whatsoever, (ii) the chief financial officer of the Borrower so certifies
in writing to Agent and (iii) the Borrower supplies to Agent such valuations,
information, evidence, certifications and opinions as Agent may request in
connection therewith, this SPC Pledge Agreement shall terminate upon
satisfaction of the conditions in clauses (a) and (b) above without giving
effect to the requirement that the payment in full be indefeasible.
-14-
248
17.2 Duties of Agent With Respect To Release of Collateral.
When this Agreement terminates pursuant to subsection 17.1 above, the Agent
shall reassign and deliver to the Pledgor, or to such Person as the Pledgor
shall designate, against receipt, such of the Collateral (if any) as shall not
have been sold or otherwise applied by the Agent pursuant to the terms hereof
and shall still be held by it hereunder, together with appropriate instruments
of reassignment and release, all without any recourse to, or warranty whatsoever
by, the Agent, at the sole cost and expense of the Borrower.
SECTION 18. MISCELLANEOUS PROVISIONS
18.1 Notices. All notices, requests, demands, directions and
other communications (collectively "notices") given or made upon any party under
the provisions of this SPC Pledge Agreement shall be by telephone or in writing
(including facsimile communication) unless otherwise expressly provided under
this SPC Pledge Agreement and if in writing, shall be delivered or sent by
facsimile to the respective parties at the addresses and numbers set forth under
their respective names on the signature pages to this SPC Pledge Agreement or in
accordance with any subsequent unrevoked written direction from any party to the
others. All notices shall, except as otherwise expressly provided in this SPC
Pledge Agreement, be effective (a) in the case of facsimile, when received, (b)
in case of hand-delivered notice, when hand delivered, (c) in the case of
telephone, when telephoned, provided, however, that in order to be effective,
telephonic notices must be confirmed in writing no later than the next day by
letter, facsimile or telex, (d) if given by mail, four (4) days after such
communication is deposited in the mails with first class postage prepaid, return
receipt requested, and (e) if given by any other means (including air courier),
when delivered; provided, that notices to the Agent shall not be effective until
received. In the event of a discrepancy between any telephonic or written
notice, the written notice shall control.
18.2 Entire Agreement. This SPC Pledge Agreement sets forth
all of the promises, covenants, agreements, conditions and understandings among
the parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, inducements or conditions, express or
implied, oral or written, with respect thereto, except as contained or referred
to herein.
18.3 Amendments. The terms of this SPC Pledge Agreement may be
amended, terminated, modified, supplemented or waived only upon the written
consent of the Agent and the Pledgor. The rights of the Agent to so change,
modify, waive, discharge or terminate any provision hereof is subject to the
terms of Section 12.5 of the Credit Agreement, it being understood, however,
that the Pledgor is not a third party beneficiary of Section 12.5 of the Credit
Agreement.
18.4 Governing Law. This SPC Pledge Agreement and the rights
and obligations of the parties hereunder shall be construed and enforced in
accordance with and shall be governed by the laws of the Commonwealth of
Pennsylvania.
-15-
249
18.5 Arbitration; Consent to Jurisdiction, Service and Venue;
Waiver of Jury Trial.
18.5.1 Arbitration.
(i) Upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any claim or controversy
arising out of, or relating to, the Loan Documents between any or all of the
parties hereto (a "Dispute") shall be resolved by binding arbitration conducted
under and governed by the Commercial Financial Disputes Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the "AAA") and the
Federal Arbitration Act. Disputes may include, without limitation, tort claims,
counterclaims, a dispute as to whether a matter is subject to arbitration,
claims brought as class actions, or claims arising from documents executed in
the future. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this arbitration provision does not
apply to disputes under or related to Interest Rate Protection Agreements.
(ii) All arbitration hearings shall be conducted in
the City of Philadelphia, Commonwealth of Pennsylvania unless otherwise agreed
by all parties to such arbitration. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall conclude within 120 days of demand
for arbitration. These time limitations may not be extended unless a party shows
cause for extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
the AAA. The parties do not waive applicable Federal or state substantive law
except as provided herein.
(iii) Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to proceed in any court
of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (a) all rights to foreclose against any real or
personal property or other security by exercising a power of sale or under
applicable law by judicial foreclosure including a proceeding to confirm the
sales; (b) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property; and (c) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and filing of involuntary bankruptcy proceedings. Any claim or
controversy with regard to any party's entitlement to such remedies is a
Dispute.
(iv) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A
REMEDY OF SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER
PARTIES IN ANY DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TO SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN
THE FUTURE IN CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS RESOLVED BY
ARBITRATION OR JUDICIALLY.
18.5.2 Consent to Jurisdiction, Service and Venue;
Waiver of Jury Trial.
-16-
250
(i) With respect to any matters that may be heard
before a court of competent jurisdiction under paragraph (iii) of the preceding
subsection 18.5.1, the Pledgor hereby consents to the jurisdiction and venue of
the courts of the Commonwealth of Pennsylvania or of any federal court located
in such state, waives personal service of any and all process upon it and
consents that all such service of process be made by certified or registered
mail directed to the Pledgor at the address provided for in Section 18.1 above
and service so made shall be deemed to be completed upon actual receipt. The
Pledgor hereby waives the right to contest the jurisdiction and venue of the
courts located in the County of Philadelphia, Commonwealth of Pennsylvania on
the ground of inconvenience or otherwise and, further, waives any right to bring
any action or proceeding against (a) the Agent in any court outside the County
of Philadelphia, Commonwealth of Pennsylvania, or (b) any other Senior Secured
Party other than in a state within the United States designated by such Senior
Secured Party. The provisions of this Section 18.5 shall not limit or otherwise
affect the right of the Agent or any Senior Secured Party to institute and
conduct an action in any other appropriate manner, jurisdiction or court.
(ii) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE,
SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY
TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR ANY
OTHER LOAN DOCUMENT OR ANY GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE
RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE AGENT NOR
ANY SENIOR SECURED PARTY NOR THE PLEDGOR NOR ANY OTHER PERSON WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.
(iii) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH
(iv) OF THE PRECEDING SUBSECTION 18.5.1 EXCEPT AS PROHIBITED BY LAW, EACH PARTY
TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY
ARBITRATION OR OTHER LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
EACH PARTY TO THIS AGREEMENT (i) CERTIFIES THAT NEITHER THE AGENT NOR ANY
REPRESENTATIVE, OR ATTORNEY OF THE AGENT NOR ANY SENIOR SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH SENIOR SECURED PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 18.5. THE PROVISIONS OF THIS SECTION 18.5 HAVE
BEEN FULLY DISCLOSED TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER
PARTY THAT THE PROVISIONS OF THIS SECTION 18.5 WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
-17-
251
18.6 Severability. If any of the provisions or terms of this
SPC Pledge Agreement shall for any reason be held to be invalid or unenforceable
such invalidity or unenforceability shall not affect any of the other terms
hereof, but this SPC Pledge Agreement shall be construed as if such invalid or
unenforceable term had never been contained herein. Any such invalidity or
unenforceability in a particular jurisdiction shall not be deemed to render a
provision invalid or unenforceable in any other jurisdiction.
18.7 Counterparts. This SPC Pledge Agreement may be executed
in one or more counterparts, each of which shall constitute an original
agreement, but all of which together shall constitute one and the same
instrument. A photocopied or facsimile copy of any signature page to this SPC
Pledge Agreement shall be deemed to be the functional equivalent of a manually
executed original for all purposes.
-18-
252
IN WITNESS WHEREOF, the parties have caused this SPC Pledge
Agreement to be duly executed and delivered by their respective authorized
officers on the date first above written.
PLEDGOR:
SUSQUEHANNA PFALTZGRAFF CO.
By:_________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Notice Information:
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
AGENT: FIRST UNION NATIONAL BANK, in its
capacity as Agent
By:_________________________________
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
Notice Information:
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx, Senior
Vice President
Signature Page to the SPC Pledge Agreement
253
JOINDER
The undersigned acknowledges the SPC Pledge Agreement to which this
Joinder is attached, and hereby agrees to be bound by the foregoing SPC Pledge
Agreement and to perform the covenants contained therein required to be
performed by it.
SUSQUEHANNA MEDIA CO.
By:_____________________________
Name: Xxxx X. Xxxxxxx
Title: Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
Joinder to the SPC Pledge Agreement
254
SCHEDULE 1
TO SPC PLEDGE AGREEMENT
SHARES OF STOCK AND OTHER SECURITIES OWNED BY SPC
1. 1,100,000 shares of Common Stock of Susquehanna Media Co.
2. 4 shares of Common Stock of Radio Cincinnati, Inc.
3. 50 shares of Common Stock of Radio Indianapolis, Inc.
4. 20 shares of Common Stock of Radio Metroplex, Inc.
5. 90 shares of Common Stock of Radio San Francisco, Inc.
6. 20 shares of Common Stock of KLIF Broadcasting, Inc.
255
PLEDGE AGREEMENT
("Borrower Pledge Agreement")
BORROWER PLEDGE AGREEMENT made as of the 12th day of May, 1999, by and
between SUSQUEHANNA MEDIA CO., a Delaware corporation ("Pledgor"), and FIRST
UNION NATIONAL BANK, a national banking association as agent on behalf of the
Senior Secured Parties (as defined in the Credit Agreement referred to below).
First Union National Bank in its capacity as agent hereunder, with its
successors and assigns, is hereinafter referred to as "Agent."
BACKGROUND OF AGREEMENT
On the date hereof certain lenders and issuers of letters of credit and
FIRST UNION NATIONAL BANK as Agent have entered into a Credit Agreement (as
amended, extended, supplemented, restated, or otherwise modified or refinanced,
including without limitation any amendment involving an increase in principal,
interest rate or other amount, the "Credit Agreement") with the Pledgor,
pursuant to which such lenders and issuers agreed to lend certain sums to the
Pledgor upon the terms and conditions specified in the Credit Agreement under
(1) a revolving credit facility with a swing loan subfacility, and (2) two
separate term loan facilities, and to issue, or participate in the issuance of,
certain letters of credit. In addition, the Credit Agreement currently requires
the Borrower under certain conditions to enter into certain interest rate
hedging agreements.
One of the prerequisites to the making of advances by the Lenders (as
defined in the Credit Agreement) under the Credit Agreement and the issuing of
letters of credit thereunder is that the Pledgor shall have entered into this
Borrower Pledge Agreement and shall have granted to the Agent for the benefit of
the Senior Secured Parties a security interest in and to all of the ownership
interests in the Pledgor's Subsidiaries owned by Pledgor and certain
intercompany notes (as more fully described below) to secure its obligations
under the Credit Agreement, and certain related documents and agreements as more
fully set forth below. This Borrower Pledge Agreement is being executed and
delivered pursuant to Section 4.1.5 of the Credit Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, and in consideration of the mutual covenants herein contained and other
good and valuable consideration receipt of which is hereby acknowledged, agree
as follows:
SECTION 1. DEFINITIONS
Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in, or by reference in, the Credit
Agreement or the Uniform Commercial Code, as applicable. The following terms
shall have the following meanings:
256
"Collateral" shall mean (without duplication):
(i) all Investment Property evidencing ownership
interests in, or related to, any Subsidiary of the Pledgor, including, without
limitation: (a) the shares of capital stock and other securities of, or issued
by, any of the entities listed on Schedule I hereto (as the same may be modified
from time to time pursuant to the terms hereof), and any other shares of capital
stock of and/or other securities of any Subsidiary of the Pledgor obtained in
the future by the Pledgor, and, in each case, all certificates representing such
shares and/or securities and/or ownership interests and, in each case, all
rights, options, warrants, stock, other securities and ownership interests which
may hereafter be received, receivable or distributed in respect of, or exchanged
for, any of the foregoing (all of the foregoing being referred to herein as the
"Pledged Securities"); and (b) all of Pledgor's right, title and interest,
direct or indirect, present or future, in and to any Subsidiary of the Pledgor
which is, or may be from time to time, formed as a partnership or limited
partnership or other such entity, including, without limitation, all rights
under the governing partnership agreement and all rights of the Pledgor to
receive monies due and to become due pursuant thereto (all the foregoing being
referred to herein as "Pledged Partnership Interests");
(ii) all other property which may be delivered to and
held by the Agent pursuant to the terms hereof of any character whatsoever into
which any of the foregoing may be converted or which may be substituted for any
of the foregoing; and
(iii) all Proceeds of the Pledged Securities and
Pledged Partnership Interests and of such other property, including, without
limitation, all dividends, interest, cash, notes, securities or other property
at any time and from time to time acquired, receivable or otherwise distributed
in respect of, or in exchange for, any of or all such Pledged Securities,
Pledged Partnership Interests or other property.
"FCC" shall mean the Federal Communications Commission or any
governmental body succeeding to the functions of such commission.
"FCC License" shall mean any radio, microwave, or other
communications license, permit, certificate of compliance, franchise, approval
or authorization granted or issued by the FCC for control, ownership,
acquisition, construction, operation, management or maintenance of domestic
cable television systems, radio broadcasting systems or businesses directly
related thereto.
"Franchise" shall mean a franchise, permit or license
(including, without limitation, an FCC License), designation or certificate
granted by the United States or any other country, territory or state or a city,
town, county or other municipality, PUC or any other regulatory authority
pursuant to which a Person has the right to own, control, acquire, construct,
operate, manage or maintain a domestic cable television system, radio
broadcasting system or business directly related thereto.
"Lien" shall mean, as to any Person, any mortgage, lien,
pledge, adverse claim, charge, security interest or other encumbrance in or on,
or any interest or title of any vendor, lessor, lender or other secured party to
or of such Person under any conditional sale or other title retention agreement
or capital lease with respect to, any property or asset of such Person.
2
257
"Necessary Endorsement" shall mean undated stock powers
endorsed in blank (with signatures properly guaranteed) or other proper
instruments of assignment duly executed and such other instruments or documents
as the Agent may reasonably request.
"Proceeds" shall have the meaning assigned to such term under
the Uniform Commercial Code and, in any event, shall include (i) any and all
proceeds of any guarantee, insurance or indemnity payable to the Pledgor from
time to time with respect to any of the Collateral; (ii) any and all payments
(in any form whatsoever) made or due and payable to the Pledgor from time to
time in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental authority
(or any person acting under color of governmental authority); and (iii) any and
all other amounts from time to time paid or payable with respect to or in
connection with any of the Collateral.
"PUC" shall mean any state or local regulatory agency or body
that exercises jurisdiction over the ownership, construction, operation,
acquisition, management or maintenance of domestic cable television systems,
radio broadcasting systems or businesses directly related thereto.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code, as amended, as is in effect in the Commonwealth of Pennsylvania or in any
applicable state as the case may be.
SECTION 2. CREATION OF SECURITY INTEREST
As security for the payment and performance in full
of the Senior Secured Obligations, the Pledgor hereby hypothecates, pledges,
assigns, sets over and delivers unto the Agent, and grants to the Agent, for the
equal (in priority) and ratable benefit of the Senior Secured Parties, a
continuing first priority security interest in all its right, title and interest
in, to and under the Collateral, TO HAVE AND TO HOLD the Collateral, together
with all right, title, interest, powers, privileges and preferences pertaining
or incidental thereto, unto the Agent, forever; subject, however, to the terms,
covenants and conditions hereinafter set forth.
SECTION 3. DELIVERY OF COLLATERAL
3.1 At Time of Execution of Agreement. Contemporaneously with
the execution of this Borrower Pledge Agreement or, in any event, prior to the
Closing Date, the Pledgor shall deliver or cause to be delivered to the Agent
(i) any and all certificates and other instruments representing or evidencing
the Pledged Securities or Pledged Partnership Interests, (ii) any and all
certificates and other instruments or documents representing any of the
Collateral and (iii) all other property comprising part of the Collateral, in
each case along with the Necessary Endorsements. Pledgor is, contemporaneously
with the execution hereof, delivering to Agent, or has previously delivered to
Agent, an original counterpart of each partnership agreement governing the
Pledged Partnership Interests. (At any time and from time to time at the request
of Agent, Pledgor shall deliver to Agent certificates, if any, evidencing the
Pledged
3
258
Partnership Interests, Partnership Interest Assignment Powers duly endorsed in
blank for transfer and UCC-1 Financing Statements covering the Collateral.)
3.2 Subsequent Delivery of Collateral. If the Pledgor shall
become entitled to receive or shall receive any securities or other property
(including, without limitation, shares of Pledged Securities or instruments
representing Pledged Partnership Interests acquired after the Closing Date, or
any options, warrants, rights or other similar property or certificates
representing a stock dividend, or any distribution in connection with any
recapitalization, reclassification or increase or reduction of capital, or
issued in connection with any reorganization of the Pledgor or any Subsidiary of
Pledgor but excluding dividends and interest permitted to be retained under
Section 5) in respect of the Pledged Securities or Pledged Partnership Interests
(whether as an addition to, in substitution of, or in exchange for, such Pledged
Securities or Pledged Partnership Interests or otherwise), the Pledgor agrees:
(i) to accept the same as the agent of the Agent,
(ii) to hold the same in trust on behalf of and for
the benefit of the Agent, and
(iii) to deliver any and all certificates or
instruments evidencing the same to the Agent on or before the close of business
on the seventh (7th) Business Day following the receipt thereof by the Pledgor,
in the exact form received together with the Necessary Endorsements, to be held
by the Agent subject to the terms of this Borrower Pledge Agreement, as
additional Collateral.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PLEDGOR
4.1 Representations and Warranties. Pledgor represents and
warrants that each representation and warranty set forth in the Loan Documents
that relates to or refers to the Pledgor or the Collateral subject hereto (or,
in either case, any other term that is used with the same or similar meaning) is
incorporated herein by reference and is true and correct on and as of the date
hereof. Without limiting the generality of the foregoing, the Pledgor further
represents and warrants that:
(i) the Pledged Securities and the Pledged
Partnership Interests included in the Collateral are not subject to any charter,
bylaw, statutory, contractual or other restriction governing their issuance,
transfer, ownership or control which restriction would limit the effectiveness
or enforceability of the pledge and security interest created under this
Borrower Pledge Agreement, except to the extent that regulatory considerations
reflected in Section 11 hereof may affect the enforceability of certain rights
and remedies of the Senior Secured Parties hereunder and
(ii) the stock and securities listed on Schedule I
hereto represents all of the stock and securities held by Pledgor in any
Subsidiary of Pledgor;
4
259
(iii) the indebtedness listed on Schedule II hereto
represents all the intercompany debt owing or issued to the Pledgor;
(iv) the partnership interests listed on Schedule III
hereto represents all the partnership interests (whether as a general or limited
partner) held by Pledgor in any Subsidiary of the Pledgor;
(v) The chief executive office of the Pledgor and the
other offices or places of business of Pledgor or any offices where records
concerning the Collateral are kept are set forth on the signature pages hereto.
Pledgors are not known by any other name except the name appearing on the
signature page hereof;
(vi) the Pledgor is the legal and beneficial owner of
the Pledged Securities and Pledged Partnership Interests, free and clear of any
lien, security interest, option or of the charge or encumbrance except for the
security interests created by this Borrower Pledge Agreement; and
(vii) the pledge of the Pledged Securities and
Pledged Partnership Interests pursuant to this Borrower Pledge Agreement and the
filing of the necessary financing statements (which filings have been duly made)
create a valid and perfected first priority security interest in the Collateral
securing payment of the Senior Secured Obligations.
4.2 Survival of Representations and Warranties. All the
foregoing representations and warranties (including, without limitation, those
incorporated by reference) shall survive the execution and delivery of this
Borrower Pledge Agreement and shall continue until this Borrower Pledge
Agreement is terminated as provided herein and shall not be affected or waived
by any inspection or examination made by or on behalf of Agent or any Secured
Party.
SECTION 5. VOTING; DIVIDENDS
5.1 Rights Prior To Default. Other than during the existence
of an Event of Default,
(i) Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Collateral or any part
thereof for any purpose not inconsistent with the terms of the Loan Documents.
(ii) Subject to and limited by the restrictions on
dividends and other payments in respect of the Collateral set forth in the Loan
Documents, Pledgor shall be entitled to receive and retain any and all
dividends, interest and other payments paid in respect of the Collateral,
provided, however, that any and all
(a) dividends or other payments paid or
payable other than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, or in exchange for,
any Collateral,
5
260
(b) dividends and other distributions paid
or payable in cash in respect of any Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and
(c) cash paid, payable or otherwise
distributed in respect of principal of, or in redemption of, or exchange for,
any Collateral, except as specifically permitted by the Credit Agreement, shall
forthwith be delivered to the Agent to hold as Collateral and shall, if received
by Pledgor, be received in trust for the benefit of the Agent on behalf of the
Senior Secured Parties, be segregated from the other property or funds of
Pledgor, and be forthwith delivered to the Agent as Collateral in the same form
as so received (with any Necessary Endorsement).
(iii) The Agent shall execute and deliver to the
Pledgor all such proxies and other instruments as the Pledgor may reasonably
request for the purpose of enabling the Pledgor to exercise the voting and other
rights which it is entitled to exercise pursuant to paragraph (i) above and to
receive the dividends or interest payments which it is authorized to receive and
retain pursuant to paragraph (ii) above.
5.2 Rights After a Default. Upon the occurrence and during the
continuation of an Event of Default and as more fully set forth in Section 10
below,
(i) Subject to Section 11 below, all rights of the
Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to subsection 5.1 above and to
receive the dividends, interest and other payments which it would otherwise be
authorized to receive and retain pursuant to subsection 5.1 above shall cease,
and all such rights shall thereupon become vested in the Agent who shall have
the sole right to exercise such voting and other consensual rights and to
receive and hold as Collateral such dividends, interest and other payments.
(ii) All dividends, interest and other payments which
are received by the Pledgor contrary to the provisions of paragraph (i) of this
subsection 5.2 shall be received in trust for the benefit of the Agent, shall be
segregated from other funds of the Pledgor and shall forthwith be paid over to
the Agent as Collateral in the same form as so received (with any Necessary
Endorsement).
5.3 Liability of Agent and of the Senior Secured Parties
Nothing in the Borrower Pledge Agreement shall be construed to subject the Agent
or any Senior Secured Parties to liability as a partner in any Subsidiary of
Pledgor that is a partnership nor shall the Agent or any Senior Secured Party be
deemed to have assumed any obligations under any partnership agreement of such a
Subsidiary or otherwise, unless and until Agent exercises its right to be
substituted for the Pledgor as a partner pursuant hereto.
SECTION 6. COVENANTS OF PLEDGOR
6.1 Each of the covenants and agreements which are set forth
or incorporated in the Loan Documents and which are applicable or refer to the
Pledgor or the Collateral subject
6
261
hereto (or, in either case, any other term that is used with the same or similar
meaning) are incorporated herein by reference and the Pledgor agrees to perform
and abide by each such covenant and agreement. Without limiting the generality
of the foregoing and in furtherance thereof, the Pledgor shall vote the stock
and securities included in the Collateral to comply with the covenants and
agreements set forth in the Loan Documents. Without limiting the generality of
the foregoing, Pledgor shall not sell or otherwise dispose of, or grant any
option with respect to, any of the Collateral, except in connection with a sale
permitted under the provisions of the Credit Agreement providing for
dispositions to third parties free of Liens.
6.2 Proceeds of Collateral Disposition. During the continuance
of a Potential Event of Default or an Event of Default, at the Agent's request,
the Pledgor shall establish and maintain at all times a trust account with the
Agent, and all Proceeds, before or after an Event of Default, shall be deposited
directly and immediately into such account. The Pledgor shall be responsible for
all costs and fees arising with respect to such account at the standard rates.
The Pledgor expressly and irrevocably authorizes and consents to the ability of
the Agent to charge such trust account, in its sole discretion, and recover from
the funds on deposit therein, from time to time and at any time, and apply those
funds against any and all Senior Secured Obligations.
SECTION 7. FURTHER ASSURANCES
The Pledgor agrees that at any time and from time to
time, at the expense of the Pledgor and its Subsidiaries, the Pledgor and its
Subsidiaries will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Agent may request, in order to perfect and protect any security
interest granted or purported to be granted hereby or to enable the Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral including, without limitation, using its best efforts to cooperate in
obtaining any FCC, PUC, or other governmental approval of any action or
transaction contemplated hereby or thereby.
SECTION 8. AGENT APPOINTED ATTORNEY-IN-FACT; MAY PERFORM CERTAIN DUTIES
8.1 Appointment as Attorney-in-fact. Effective upon the
occurrence of an Event of Default, and so long as Agent reasonably believes such
Event of Default is continuing, the Pledgor hereby appoints the Agent as its
true and lawful agent, proxy, and attorney-in-fact for the purpose of carrying
out this Borrower Pledge Agreement and taking any action and executing any
instrument which the Agent may deem necessary or advisable to accomplish the
purposes hereof including, without limitation, the execution on behalf of
Pledgor of any financing or continuation statement with respect to the security
interest created hereby and the endorsement of any drafts or orders which may be
payable to Pledgor in respect of, arising out of, or relating to any or all of
the Collateral. This power shall be valid until the termination of the security
interests created hereunder, any limitation under law as to the length or
validity of a proxy to the contrary notwithstanding. This appointment is
irrevocable and coupled with an interest and any proxies heretofore given by the
Pledgor to any other Person are revoked. The designation set forth herein shall
be deemed to amend and supersede any inconsistent provision in the articles of
7
262
incorporation, bylaws or other documents to which Pledgor or any Subsidiary of
Pledgor is subject or to which any is a party.
8.2 Registration of Securities. Pledgor and each Subsidiary of
the Pledgor shall register the pledge of the shares included in the Collateral
in the name of the Agent on the books of the Pledgor or such Subsidiary. Upon
the occurrence of an Event of Default, Pledgor and each of the Subsidiaries of
Pledgor shall at the direction of the Agent register the shares included in the
Collateral in the name of the Agent on the books of the Pledgor and Pledgor's
Subsidiaries.
8.3 Performance of Pledgor's Duties. In furtherance, and not
by way of limitation, of the foregoing subsections 8.1 and 8.2, if (at any time
either before or after the occurrence of an Event of Default) the Pledgor fails
to perform any agreement contained herein, the Agent may (but under no
circumstance is obligated to) perform such agreement and any expenses incurred
shall be payable by the Pledgor and its Subsidiaries provided, however, that
nothing herein shall be deemed to relieve the Pledgor from fulfilling any of its
obligations hereunder.
8.4 Acts May Be Performed By Agents and Employees. Any act of
the Agent to be performed pursuant to this Section 8 or elsewhere in this
Borrower Pledge Agreement may be performed by agents or employees of the Agent.
SECTION 9. STANDARD OF CARE.
9.1 In General. No act or omission of any Secured Party (or
agent or employee thereof) shall give rise to any defense, counterclaim or
offset in favor of the Pledgor or any claim or action against any such Secured
Party (or agent or employee thereof), in the absence of gross negligence or
willful misconduct of such Secured Party as determined in a final, nonappealable
judgment of a court of competent jurisdiction. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which the Agent accords to its own property, it being understood that it
has no duty to take any action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral or to preserve
any rights of any parties and shall only be liable for losses which are a result
of its gross negligence or willful misconduct as determined in a final,
nonappealable judgment of a court of competent jurisdiction.
9.2 Reliance on Advice of Counsel. In taking any action under
this Borrower Pledge Agreement, the Agent shall be entitled to rely upon the
advice of counsel of Agent's choice and shall be fully protected in acting on
such advice whether or not the advice rendered is ultimately determined to have
been accurate.
SECTION 10. DEFAULT
8
263
10.1 Certain Rights Upon Default. In addition to any other
rights accorded to the Agent and the Senior Secured Parties hereunder, upon the
occurrence and during the continuation of an Event of Default:
10.1.1 The Agent shall be entitled to receive any interest,
cash dividends or other payments on the Collateral and, subject to Section 11
below, to exercise in the Agent's discretion all voting rights pertaining
thereto as more fully set forth in Section 5 above. Without limiting the
generality of the foregoing, subject to Section 11 below, the Agent shall have
the right to exercise all rights with respect to the Collateral as if it were
the sole and absolute owner thereof, including, without limitation, to vote
and/or to exchange, at its sole discretion, any or all of the Collateral in
connection with a merger, reorganization, consolidation, recapitalization or
other readjustment concerning or involving the Collateral or the Pledgor or any
Subsidiary of the Pledgor.
10.1.2 Pledgor and each of its Subsidiaries shall take any
action necessary or required or requested by the Agent in order to allow it
fully to enforce the security interest in the Collateral hereunder and to
realize thereon to the fullest extent possible, including, but not limited to,
the filing of any claims with any court, liquidator, trustee, guardian, receiver
or other like person or party.
10.1.3 The Agent shall have all of the rights of a secured
party under the Uniform Commercial Code of Pennsylvania, as amended, and any
other applicable law including the right to sell on such terms as it may deem
appropriate any or all of the Collateral at one or more public or private sales
upon at least ten (10) Business Days' written notice to Pledgor of the time and
place of any public sale and of the date on which the Collateral will first be
offered for sale in the case of any private sale. Agent shall have the right to
bid thereat or purchase any part or all the Collateral in its own or a nominee's
name (subject to applicable FCC or PUC requirements or restrictions). The Agent
shall have the right to apply the proceeds of the sale, after deduction for any
costs and expenses of sale (including any liabilities incurred in connection
therewith including reasonable attorneys' fees and allocated costs of attorneys
who are employees of the Agent), to the payment of the Senior Secured
Obligations in any manner or order which the Agent, in its sole discretion, may
elect (whether pursuant to the Credit Agreement or otherwise), to the payment of
any other amount required by law (including without limitation Section
9-504(1)(c) of the Uniform Commercial Code), and to pay any remaining proceeds
to Pledgor or its successors or assigns or to whomsoever may lawfully be
entitled to receive the same or as a court of competent jurisdiction may direct,
without further notice to or consent of Pledgor and without regard to any
equitable principles of marshalling or other like equitable doctrines. Pledgor
hereby acknowledges and agrees that the notice provided for above is reasonable
and expressly waives any rights it may have of equity of redemption, stay or
appraisal with respect to the Collateral.
10.1.4 For purposes hereof, a written agreement to purchase
the Collateral or any portion thereof shall be treated as a sale thereof; the
Agent shall be free to carry out such sale pursuant to such agreement, and
Pledgor shall not be entitled to the return of the Collateral or any portion
thereof, notwithstanding the fact that after Agent shall have entered into such
an agreement, any and all Events of Default shall have been remedied and the
Senior Secured Obligations paid in full.
9
264
10.1.5 The Agent shall have the right, with full power of
substitution either in the Agent's name or the name of the Pledgor, to ask for,
demand, xxx, collect and receive any and all moneys due or to become due under
and by virtue of the Collateral and to settle, compromise, prosecute or defend
any action, claim or proceeding with respect thereto, provided, however, that
nothing herein shall be construed as requiring the Agent to take any action,
including, without limitation, requiring or obligating the Agent to make any
inquiry as to the nature or sufficiency of any payment received, or to present
or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby.
10.1.6 The Agent shall be entitled to the appointment of a
receiver or trustee for all or any part of the businesses of the Pledgor or its
Subsidiaries, which receiver shall have such powers as may be conferred by law
or the appointing authority.
10.2 Agent May Exercise Less Than All Rights. Pledgor hereby
acknowledges and agrees that the Agent is not required to exercise all remedies
and rights available to it equally with respect to all of the Collateral, and
the Agent may select less than all of the Collateral with respect to which the
remedies as determined by the Agent may be exercised.
10.3 Duties of Pledgor and Subsidiaries of the Pledgor With
Respect to Transferee. In the event that, upon an occurrence of an Event of
Default, the Agent shall sell all or any of the Collateral to another party or
parties (herein called "Transferee") or shall purchase or retain all or any of
the Collateral, Pledgor and each Subsidiary of the Pledgor shall:
(i) Deliver to the Agent or Transferee, as the case
may be, the articles of incorporation, bylaws, minute books, stock certificate
books, corporate seals, deeds, leases, indentures, agreements, evidences of
indebtedness, books of account, financial records and all other documents and
records of Pledgor and each Subsidiary of the Pledgor;
(ii) Use its best efforts to obtain resignations of
the persons then serving as officers and directors of Pledgor and each
Subsidiary of the Pledgor, if so requested; and
(iii) Use its best efforts to obtain any approvals
that are required by any governmental or regulatory body in order to permit the
sale of the Collateral to the Transferee or the purchase or retention of the
Collateral by the Agent and allow the Transferee or the Agent to continue the
business of the issuer.
SECTION 11. ACKNOWLEDGEMENT OF REGULATORY CONSIDERATIONS; UNIQUE NATURE
OF ASSETS.
11.1 FCC/PUC Approval. It is hereby acknowledged that transfer
of certain Collateral and the exercise of certain other remedies provided herein
may constitute a transfer of an FCC License or other Franchise or a sale or
transfer of control of a holder of an FCC License or other Franchise, requiring
approval of the FCC or PUC, pursuant to rules and regulations of the FCC or PUC.
Notwithstanding anything to the contrary contained in this Agreement, the Agent
10
265
will not knowingly take any action pursuant to this Agreement which would
constitute or result in assignment of an FCC License or other Franchise or any
transfer of control of the holder of an FCC License or other Franchise if such
assignment of license or transfer of control would require under then existing
law (including the written rules and regulations promulgated by the FCC or any
PUC), the prior approval of the FCC or such PUC, without first obtaining such
approval. In connection with this provision, the Agent shall be entitled to rely
upon the advice of counsel of Agent's choice whether or not the advice rendered
is ultimately determined to have been accurate.
11.2 Pledgor and Subsidiary of Pledgor Assistance in Obtaining
Approval. Without limiting the generality of Section 7 above, if counsel to the
Agent reasonably determines that the consent of the FCC or the PUC is required
in connection with any of the actions hereunder or under any other Loan
Document, then the Pledgor and each Subsidiary thereof (at its cost and expense)
agrees to use its best efforts to secure such consent and to cooperate fully
with the Agent in any action to secure such consent. Without limiting the
generality of the foregoing, Pledgor and each Subsidiary thereof shall promptly
execute and file and/or cause the execution and filing of all applications,
certificates, instruments, and other documents and papers that the Agent deems
necessary or advisable to file in order to obtain any necessary governmental
consent, approval, or authorization, and if Pledgor or any Subsidiary thereof
fails or refuses to execute (or fails or refuses to cause another Person to
execute) such documents, the Agent or the clerk of any court of competent
jurisdiction may execute and file the same on behalf of the Pledgor or such
other Person.
11.3 Unique Nature of Assets. It is agreed that the FCC
Licenses and other Franchises held by the Pledgor and its Subsidiaries are
unique assets which (or the control of which) may have to be transferred in
order for the Agent adequately to realize the value of its security interest. A
violation of the covenants set forth in this Section would result in irreparable
harm to the Agent for which monetary damages are not readily ascertainable.
Therefore, in addition to any other remedy which may be available to the Agent
at law or in equity, Agent shall have the remedy of specific performance of the
provisions of this Section. To enforce the provisions of this Section, the Agent
is authorized to request the consent or approval of the FCC or PUC to a
voluntary or an involuntary transfer of control of any FCC License or other
Franchise or sale or transfer of control of a holder of an FCC License or other
Franchise.
11.4 Selection by Agent of Different Transferee. If, for any
reason, the FCC or PUC does not approve within a reasonable period of time
(which period shall be determined conclusively by the Agent), the initial
application for approval of the transfer of the Collateral, the Agent shall then
have the right to transfer the Collateral to such other Person as the Agent
shall select (subject to the prior approval of the FCC or PUC). With respect to
such subsequent selection, Pledgor agrees to cooperate fully in the manner set
forth above. Exercise by the Agent of the right to such cooperation shall not be
exhausted by the initial or any subsequent exercise thereof.
SECTION 12. SECURITIES LAW PROVISION
Pledgor recognizes that the Agent may be limited in its
ability to effect a sale to the public of all or part of the Collateral by
reason of certain prohibitions in the Securities
11
266
Act of 1933, as amended, or other federal or state securities laws
(collectively, the "Securities Laws"), and may be compelled to resort to one or
more sales to a restricted group of purchasers who may be required to agree to
acquire the Collateral for their own account, for investment and not with a view
to the distribution or resale thereof. Pledgor agrees that sales so made may be
at prices and on terms less favorable than if the Collateral were sold to the
public, and that the Agent has no obligation to delay the sale of any Collateral
for the period of time necessary to register the Collateral for sale to the
public under the Securities Laws. Pledgor and each Subsidiary thereof shall
cooperate with the Agent in its attempts to satisfy any requirements under the
Securities Laws (including without limitation registration thereunder if
requested by Agent) applicable to the sale of the Collateral by the Agent.
SECTION 13. SECURITY INTEREST ABSOLUTE; WAIVERS BY PLEDGOR
13.1 Absolute Nature of Security Interest. All rights of the
Agent hereunder, the grant of the security interest in the Collateral and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of any of the terms
of the Loan Documents or any other instrument or document relating hereto or
thereto, (ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Senior Secured Obligations, or any other
amendment or waiver of any terms related thereto, (iii) any exchange, release or
nonperfection of any other collateral, or any release or amendment or waiver of
any guaranty, or (iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor or any other Person in
respect of the Senior Secured Obligations or in respect of this Borrower Pledge
Agreement or any other Loan Document or any obligations hereunder or thereunder.
13.2 No Duty To Marshal Assets. The Agent shall have no
obligation to marshal any assets in favor of the Pledgor or any other Person or
against or in payment of any or all of the Senior Secured Obligations.
13.3 Waiver with Right of Subrogation, Etc. The Pledgor
acknowledges that until all the Senior Secured Obligations shall have been
indefeasibly paid in full, the Pledgor shall have no right (or hereby waives any
such right) of subrogation, reimbursement, or indemnity whatsoever, in respect
of any Subsidiary of the Pledgor, arising out of remedies exercised by the Agent
hereunder.
13.4 Waivers. The Pledgor hereby waives notice of acceptance
of this Borrower Pledge Agreement. The Pledgor further waives presentment and
demand for payment of any of the Senior Secured Obligations, protest and notice
of dishonor or default with respect to any of the Senior Secured Obligations,
and all other notices to which the Pledgor might otherwise be entitled, except
as otherwise expressly provided in this Borrower Pledge Agreement or any of the
other Loan Documents. The Pledgor (to the extent that it may lawfully do so)
covenants that it shall not at any time insist upon or plead, or in any manner
claim or take the benefit of, any stay, valuation, appraisal or redemption now
or at any time hereafter in force that, but for this waiver, might be applicable
to any sale made under any judgment, order or decree based on this Borrower
Pledge Agreement or any other Loan Document; and the Pledgor (to the extent that
it may lawfully do so) hereby expressly waives and relinquishes all benefit of
any and all such laws and hereby covenants
12
267
that it will not hinder, delay or impede the execution of any power in this
Borrower Pledge Agreement or in any other Loan Document delegated to the Agent,
but that it will suffer and permit the execution of every such power as though
no such law or laws had been made or enacted.
SECTION 14. NON-WAIVER AND NON-EXCLUSIVE REMEDIES
14.1 Non-Exclusive Remedies. No remedy or right herein
conferred upon, or reserved to the Agent is intended to be to the exclusion of
any other remedy or right, but each and every such remedy or right shall be
cumulative and shall be in addition to every other remedy or right given
hereunder or under any other Loan Document or under law.
14.2 Delay and Non-Waiver. No delay or omission by the Agent
to exercise any remedy or right hereunder shall impair any such remedy or right
or shall be construed to be a waiver of any Event of Default, or an acquiescence
therein, nor shall it affect any subsequent Event of Default of the same or of a
different nature.
SECTION 15. EFFECT OF PLEDGE ON CERTAIN SHAREHOLDER RIGHTS.
If any of the Collateral subject to this Borrower
Pledge Agreement consists of shares of nonvoting stock (regardless of their
class, designation, preference or rights) or other instruments which may be
converted into voting stock upon the occurrence of certain events (including,
without limitation, upon the transfer of all or any of the other stock or assets
of the issuer), it is agreed that the pledge of such stock or other instruments
pursuant to this Borrower Pledge Agreement or the enforcement of any of the
Agent's rights hereunder shall not be deemed to be the type of event which would
trigger such conversion rights notwithstanding any provisions in the charter,
bylaws or agreements of the issuer or the Pledgor to the contrary.
SECTION 16. CONTINUING SECURITY INTEREST; HEIRS AND ASSIGNS.
This Borrower Pledge Agreement shall create a
continuing security interest in the Collateral and shall (i) remain in full
force and effect until terminated pursuant to Section 17 below, (ii) be binding
upon the Pledgor, its successors and assigns and (iii) inure to the benefit of
the Agent, the other Senior Secured Parties and their respective successors,
transferees and assigns provided, however, that the Pledgor shall not be
permitted to transfer any of its obligations hereunder.
SECTION 17. TERMINATION OF AGREEMENT; RELEASE OF COLLATERAL
17.1 Termination of Agreement. At such time as (a) the Senior
Secured Parties have no obligation to make further loans or other extensions of
credit to the Pledgor under the Credit Agreement, and (b) all the Senior Secured
Obligations have been indefeasibly paid and/or performed in full, then this
Borrower Pledge Agreement shall terminate and the Collateral shall be released
pursuant to subsection 17.2, provided that if at the time of the payment in full
of the Senior Secured Obligations (i) such payment and performance is not
subject to any filed or threatened claim, contest, voidance or offset of any
kind whatsoever, (ii) the chief financial officer of the Pledgor so certifies in
writing to the Agent and (iii) Pledgor supplies to Agent such valuations,
13
268
information, evidence, certifications and opinions as Agent may request in
connection therewith, this Borrower Pledge Agreement shall terminate upon
satisfaction of the conditions in clauses (a) and (b) above without giving
effect to the requirement that the payment in full be indefeasible.
17.2 Duties of Agent With Respect To Release of Collateral.
When this Agreement terminates pursuant to subsection 17.1 above, the Agent
shall reassign and deliver to the Pledgor, or to such Person as the Pledgor
shall designate, against receipt, such of the Collateral (if any) as shall not
have been sold or otherwise applied by the Agent pursuant to the terms hereof
and shall still be held by it hereunder, together with appropriate instruments
of reassignment and release, all without any recourse to, or warranty whatsoever
by, the Agent, at the sole cost and expense of the Pledgor.
17.3 Release of Certain Collateral. Effective upon the closing
of a sale of any Collateral in conformity with the provisions of the Credit
Agreement providing for dispositions to third parties free of Liens, and receipt
by the Agent of a certification to such effect from the chief financial officer
of the Pledgor, then the security interest in the assets which are the subject
of the sale (the "Sold Collateral") shall terminate. The Agent shall thereupon
reassign and deliver to Pledgor, or to such Person as the Pledgor shall
designate, against receipt, the Sold Collateral, together with appropriate
instruments or reassignment and release, all without any recourse to, or
warranty whatsoever by, the Agent, at the sole cost and expense of the Pledgor
and its Subsidiaries.
SECTION 18. PAYMENT OF COSTS AND EXPENSES; INDEMNITIES
18.1 Payment of Costs and Expenses. Upon demand, the Pledgor
shall pay to the Agent the amount of any and all reasonable expenses incurred by
the Agent hereunder or in connection herewith, including, without limitation
those that may be incurred in connection with (i) the administration of this
Borrower Pledge Agreement (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Agent hereunder or (iv) the
failure of the Pledgor to perform or observe any of the provisions hereof.
18.2 Fees. The Pledgor will, upon demand, pay to the Agent
such reasonable fees (in addition to its expenses) for its services as Agent as
may be agreed upon from time to time between the Agent and the Pledgor.
18.3 Indemnification. The Pledgor agrees to indemnify and hold
harmless the Agent and other Senior Secured Parties (and, in each case, its
directors, officers, agents and employees) to the fullest extent permitted by
law, from and against any and all claims, losses, liabilities, actions,
judgments, demands, costs and expenses of whatever nature incurred by the Agent
or such Secured Party hereunder or in connection herewith, unless such claim,
loss, liability, action, judgment, demand, cost or expense is the result of the
willful misconduct or gross negligence of said indemnified party as shall have
been determined in a final, nonappealable judgment of a court of competent
jurisdiction. This indemnification shall survive the termination of this
Agreement.
14
269
18.4 Taxes. The Pledgor hereby agrees to pay to the Agent,
upon demand, the amount of any taxes which the Agent may have been required to
pay by reason of the security interests established pursuant to this Borrower
Pledge Agreement (including any applicable transfer taxes).
18.5 Interest. All monetary obligations of the Pledgor under
this Section 18 shall bear interest following demand at the Base Rate (as
defined in the Credit Agreement) plus two (2) per cent.
18.6 Additional Obligations. Any amounts payable pursuant to
this Section 18 shall be additional Senior Secured Obligations secured hereby.
SECTION 19. MISCELLANEOUS PROVISIONS
19.1 Notices
All notices, requests, demands, directions and other
communications (collectively "notices") given or made upon any party under the
provisions of this Borrower Pledge Agreement shall be by telephone or in writing
(including facsimile communication) unless otherwise expressly provided under
this Borrower Pledge Agreement and if in writing, shall be delivered or sent by
facsimile to the respective parties at the addresses and numbers set forth under
their respective names on the signature pages to this Borrower Pledge Agreement
or in accordance with any subsequent unrevoked written direction from any party
to the others. All notices shall, except as otherwise expressly provided in this
Borrower Pledge Agreement, be effective (a) in the case of facsimile, when
received, (b) in case of hand-delivered notice, when hand delivered, (c) in the
case of telephone, when telephoned, provided, however, that in order to be
effective, telephonic notices must be confirmed in writing no later than the
next day by letter, facsimile or telex, (d) if given by mail, four (4) days
after such communication is deposited in the mails with first class postage
prepaid, return receipt requested, and (e) if given by any other means
(including air courier), when delivered; provided, that notices to the Agent
shall not be effective until received. In the event of a discrepancy between any
telephonic or written notice, the written notice shall control.
19.2 Entire Agreement. This Borrower Pledge Agreement sets
forth all of the promises, covenants, agreements, conditions and understandings
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings, inducements or conditions,
express or implied, oral or written, with respect thereto, except as contained
or referred to herein.
19.3 Amendments. The terms of this Borrower Pledge Agreement
may be amended, terminated, modified, supplemented or waived only upon the
written consent of the Agent and the Pledgor. The rights of the Agent to so
change, modify, waive, discharge or terminate any provision hereof is subject to
the terms of Section 12.5 of the Credit Agreement, it being understood, however,
that the Pledgor is not a third party beneficiary of Section 12.5 of the Credit
Agreement.
15
270
19.4 Governing Law. This Borrower Pledge Agreement and the
rights and obligations of the parties hereunder shall be construed and enforced
in accordance with and shall be governed by the laws of the Commonwealth of
Pennsylvania.
19.5 Arbitration; Consent to Jurisdiction, Service and Venue;
Waiver of Jury Trial.
19.5.1 Arbitration.
(i) Upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any claim or controversy
arising out of, or relating to, the Loan Documents between any or all of the
parties hereto (a "Dispute") shall be resolved by binding arbitration conducted
under and governed by the Commercial Financial Disputes Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the "AAA") and the
Federal Arbitration Act. Disputes may include, without limitation, tort claims,
counterclaims, a dispute as to whether a matter is subject to arbitration,
claims brought as class actions, or claims arising from documents executed in
the future. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this arbitration provision does not
apply to disputes under or related to Interest Rate Protection Agreements.
(ii) All arbitration hearings shall be conducted in
the City of Philadelphia, Commonwealth of Pennsylvania unless otherwise agreed
by all parties to such arbitration. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall conclude within 120 days of demand
for arbitration. These time limitations may not be extended unless a party shows
cause for extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
the AAA. The parties do not waive applicable Federal or state substantive law
except as provided herein.
(iii) Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to proceed in any court
of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (a) all rights to foreclose against any real or
personal property or other security by exercising a power of sale or under
applicable law by judicial foreclosure including a proceeding to confirm the
sales; (b) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property; and (c) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and filing of involuntary bankruptcy proceedings. Any claim or
controversy with regard to any party's entitlement to such remedies is a
Dispute.
(iv) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A
REMEDY OF SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER
PARTIES IN ANY DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TO SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES
16
271
THEY HAVE NOW OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY DISPUTE
WHETHER THE DISPUTE IS RESOLVED BY ARBITRATION OR JUDICIALLY.
19.5.2 Consent to Jurisdiction, Service and Venue; Waiver of
Jury Trial.
(i) With respect to any matters that may be heard
before a court of competent jurisdiction under paragraph (iii) of the preceding
subsection 19.5.1, the Pledgor hereby consents to the jurisdiction and venue of
the courts of the Commonwealth of Pennsylvania or of any federal court located
in such state, waives personal service of any and all process upon it and
consents that all such service of process be made by certified or registered
mail directed to the Pledgor at the address provided for in Section 19.1 above
and service so made shall be deemed to be completed upon actual receipt. The
Pledgor hereby waives the right to contest the jurisdiction and venue of the
courts located in the County of Philadelphia, Commonwealth of Pennsylvania on
the ground of inconvenience or otherwise and, further, waives any right to bring
any action or proceeding against (a) the Agent in any court outside the County
of Philadelphia, Commonwealth of Pennsylvania, or (b) any other Senior Secured
Party other than in a state within the United States designated by such Senior
Secured Party. The provisions of this Section 19.5 shall not limit or otherwise
affect the right of the Agent or any Senior Secured Party to institute and
conduct an action in any other appropriate manner, jurisdiction or court.
(ii) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE,
SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY
TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR ANY
OTHER LOAN DOCUMENT OR ANY GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE
RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE AGENT NOR
ANY SENIOR SECURED PARTY NOR THE PLEDGOR NOR ANY OTHER PERSON WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.
(iii) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH
(iv) OF THE PRECEDING SUBSECTION 19.5.1 EXCEPT AS PROHIBITED BY LAW, EACH PARTY
TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY
ARBITRATION OR OTHER LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
EACH PARTY TO THIS AGREEMENT (a) CERTIFIES THAT NEITHER THE AGENT NOR ANY
REPRESENTATIVE, OR ATTORNEY OF THE AGENT NOR ANY SENIOR SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH SENIOR SECURED PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(b) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 19.5. THE PROVISIONS OF THIS SECTION 19.5 HAVE
BEEN FULLY DISCLOSED TO THE PARTIES AND THE PROVISIONS SHALL BE
17
272
SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO
ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 19.5 WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
19.6 Severability. If any of the provisions or terms of this
Borrower Pledge Agreement shall for any reason be held to be invalid or
unenforceable such invalidity or unenforceability shall not affect any of the
other terms hereof, but this Borrower Pledge Agreement shall be construed as if
such invalid or unenforceable term had never been contained herein. Any such
invalidity or unenforceability in a particular jurisdiction shall not be deemed
to render a provision invalid or unenforceable in any other jurisdiction.
19.7 Counterparts. This Borrower Pledge Agreement may be
executed in one or more counterparts, each of which shall constitute an original
agreement, but all of which together shall constitute one and the same
instrument. A photocopied or facsimile copy of any signature page to this
Borrower Pledge Agreement shall be deemed to be the functional equivalent of a
manually executed original for all purposes.
19.8 Compliance with Partnership Agreement. To the extent that
the grant of the security interest herein created in the Pledged Partnership
Interests and the enforcement of the terms hereof require the consent, approval
or action of any partner of the subject partnership or compliance with any
provisions of the subject partnership agreement, the Pledgor hereby grants such
consent and approval and waives any such noncompliance with the terms of said
partnership agreements.
18
273
IN WITNESS WHEREOF, the parties have caused this Borrower
Pledge Agreement to be duly executed and delivered by their respective
authorized officers on the date first above written.
PLEDGOR:
SUSQUEHANNA MEDIA CO.
By:__________________________________
Name: Xxxx X. Xxxxxxx
Title: Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No. (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
AGENT:
FIRST UNION NATIONAL BANK, in its capacity
as Agent
By:__________________________________
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
Notice Information
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000
Phone No.: (000)000-0000
Fax No.: (000)000-0000
Attention: Xxxxxxxxx Xxxxxx,
Senior Vice President
Signature Page to the Borrower Pledge Agreement
274
JOINDER
The undersigned acknowledge the Borrower Pledge Agreement to
which this Joinder is attached, and hereby jointly and severally agree to be
bound by the foregoing Borrower Pledge Agreement and to perform the covenants
contained therein required to be performed by each.
SUSQUEHANNA CABLE CO.
SUSQUEHANNA CABLE INVESTMENT CO.
CABLE TV OF EAST PROVIDENCE, INC.
CASCO CABLE TELEVISION, INC.
CASCO CABLE TELEVISION OF BATH, MAINE
SBC CABLE CO.
YORK CABLE TELEVISION, INC.
SUSQUEHANNA RADIO CORP.
RADIO CINCINNATI, INC.
RADIO INDIANAPOLIS, INC.
RADIO METROPLEX, INC.
KPLX LICO, INC.
KPLX RADIO, INC.
KLIF BROADCASTING, INC.
XXXX XXXX, INC.
KLIF RADIO, INC.
RADIO SAN FRANCISCO, INC.
KFFG LICO, INC.
Joinder to Xxxxxxxx Xxxxxx Xxxxxxxxx
000
XXXX XX.
XXXX, INC.
BAY AREA RADIO CORP.
WSBA LICO, INC.
WVAE LICO, INC.
WNNX LICO, INC.
INDIANAPOLIS RADIO LICENSE CO.
KNBR LICO, INC.
KRBE LICO, INC.
TEXAS STAR RADIO, INC.
SUSQUEHANNA FIBER SYSTEMS, INC.
SUSQUEHANNA DATA SERVICES, INC.
MEDIA PCS VENTURES, INC.
INDY LICO, INC.
WRRM LICO, INC.
WFMS LICO, INC.
By:__________________________________
Name: Xxxx X. Xxxxxxx
Title: Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000)000-0000
Fax No.: (000)000-0000
Attention: Xxxxx Xxxxxx, Esquire
Joinder to Borrower Pledge Agreement
276
PARAGON RESEARCH LIMITED PARTNERSHIP,
by Susquehanna Radio Corp., its General
Partner*
KPLX LIMITED PARTNERSHIP, by KPLX Radio, Inc.,
its General Partner
KLIF BROADCASTING LIMITED PARTNERSHIP,
by KLIF Radio, Inc., its General Partner
By:_______________________________________
Xxxx X. Xxxxxxx on behalf of each of the
foregoing as Treasurer of the General
Partner
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000)000-0000
Fax No.: (000)000-0000
Attention: Xxxxx Xxxxxx, Esquire
*Subject to unwaived restrictions on transfer in partnership agreement.
Joinder to Borrower Pledge Agreement
277
SCHEDULE I
TO BORROWER PLEDGE AGREEMENT
PLEDGED SECURITIES
SHARES OF STOCK AND OTHER SECURITIES OWNED BY BORROWER
1. 750,000 shares of Class A Common Stock of Susquehanna Cable Co.
2. 4,000,000 shares of Class A Common Stock of Susquehanna Radio Co.
3. 1,000 shares of Common Stock of Susquehanna Fiber Systems, Inc.
4. 1,000 shares of Common Stock of Susquehanna Data Services, Inc.
5. 1,000 shares of Common Stock of Media PCS Ventures, Inc.
278
SCHEDULE II
TO BORROWER PLEDGE AGREEMENT
PLEDGED DEBT
None.
279
SCHEDULE III
TO BORROWER PLEDGE AGREEMENT
PLEDGED PARTNERSHIP INTERESTS
None.
280
PLEDGE AGREEMENT
("Subsidiary Pledge Agreement")
SUBSIDIARY PLEDGE AGREEMENT made as of the ____ day of _____, 1999, by
and between the Subsidiaries of Susquehanna Media Co. listed on the signature
pages to this Subsidiary Pledge Agreement (the foregoing, together with any
other entity that becomes a Pledgor hereunder pursuant to Section 20.10 below,
individually a "Pledgor" and collectively the "Pledgors") and FIRST UNION
NATIONAL BANK, a national banking association as agent on behalf of the Senior
Secured Parties (as defined in the Credit Agreement referred to below). First
Union National Bank in its capacity as agent hereunder, with its successors and
assigns, is hereinafter referred to as "Agent."
BACKGROUND OF AGREEMENT
On the date hereof certain lenders and issuers of letters of credit and
FIRST UNION NATIONAL BANK as Agent have entered into a Credit Agreement (as
amended, extended, supplemented, restated or otherwise modified or refinanced,
including without limitation any amendment involving an increase in principal,
interest rate or other amount, the "Credit Agreement") with Susquehanna Media
Co. (the "Borrower"), pursuant to which such lenders and issuers agreed to
extend credit to the Borrower upon the terms and conditions specified in the
Credit Agreement under (1) a revolving credit facility with a swing loan
subfacility, and (2) two separate term loan facilities, and to issue, or
participate in the issuance of, certain letters of credit. In addition, the
Credit Agreement currently requires the Borrower under certain conditions to
enter into certain interest rate hedging agreements.
Each of the Pledgors is a Subsidiary, direct or indirect, of the
Borrower. The Subsidiaries, wishing to induce the Lenders (as defined in the
Credit Agreement) to enter into the financings described above to enable the
Borrower to (among other things) make loans to them, and the Borrower and the
Subsidiaries having determined that they can obtain their borrowings more
economically by combining their financing needs into a single borrowing unit on
the parent company level, borrowing funds from institutional lenders on that
basis, and then entering into the requisite intercompany financings, the
Subsidiaries agreed to make the pledges set forth below in order to facilitate
such financings. Each Pledgor determined that it was in its best interests and
in pursuant of its business purposes that it do so and that it was and will be
Solvent, before and after giving effect to the transactions contemplated by the
Credit Agreement.
One of the prerequisites to the making of advances by the Lenders under
the Credit Agreement and the issuing of letters of credit thereunder was that
the Pledgors enter into this Subsidiary Pledge Agreement and grant to the Agent
for the benefit of the Senior Secured Parties a security interest in and to all
of the ownership interests in the Pledgors' Subsidiaries owned by Pledgors and
certain intercompany notes and other ownership interests (as more fully
described below) to secure the obligations of the Borrower under the Credit
Agreement, and certain related documents and agreements as more fully set forth
below. This Subsidiary Pledge Agreement is being executed and delivered pursuant
to Section 4.1.5 of the Credit Agreement.
281
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, and in consideration of the mutual covenants herein contained and other
good and valuable consideration receipt of which is hereby acknowledged, agree
as follows:
SECTION 1. DEFINITIONS
Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in, or by reference in, the Credit
Agreement or the Uniform Commercial Code, as applicable. The following terms
shall have the following meanings:
"Collateral" shall mean (without duplication):
(i) all Investment Property evidencing ownership interests in,
or related to, the Borrower and/or any Subsidiary of the Borrower, including,
without limitation: (a) the shares of capital stock and other securities of, or
issued by, any of the entities listed on Schedule I hereto (as the same may be
modified from time to time pursuant to the terms hereof), and any other shares
of capital stock of and/or other securities of the Borrower and/or any
Subsidiary of the Borrower obtained in the future by any Pledgor, and, in each
case, all certificates representing such shares and/or securities and/or
ownership interests and in each case, all rights, options, warrants, stock,
other securities and ownership interests which may hereafter be received,
receivable or distributed in respect of, or exchanged for, any of the foregoing
(all the foregoing being referred to herein as "Pledged Securities"); and (b)
all the partnership and other equity interests of, or issued by, any of the
entities listed on Schedule II hereto (as the same may be modified from time to
time pursuant to the terms hereof) and all other rights, title and interest,
direct or indirect, present or future, of any Pledgor in and to (i) any
Subsidiary of such Pledgor and (without duplication) any Subsidiary of the
Borrower which is, or may be from time to time, formed as a partnership, limited
partnership, limited liability company or other such entity, including, without
limitation, in each case all rights under the governing partnership or other
organizational agreement and all rights of such Pledgor to receive monies due
and to become due pursuant thereto (all the foregoing being referred to herein
as "Pledged Partnership Interests");
(ii) all other property which may be delivered to and held by
the Agent pursuant to the terms hereof of any character whatsoever into which
any of the foregoing may be converted or which may be substituted for any of the
foregoing; and
(iii) all Proceeds of the Pledged Securities and Pledged
Partnership Interests and of such other property, including, without limitation,
all dividends, interest, cash, notes, securities or other property at any time
and from time to time acquired, receivable or otherwise distributed in respect
of, or in exchange for, any of or all such Pledged Securities, Pledged
Partnership Interests or other property.
"FCC" shall mean the Federal Communications Commission or any
governmental body succeeding to the functions of such commission.
-2-
282
"FCC License" shall mean any radio, microwave, or other
communications license, permit, certificate of compliance, franchise, approval
or authorization granted or issued by the FCC for control, ownership,
acquisition, construction, operation, management or maintenance of domestic
cable television systems, radio broadcasting systems or businesses directly
related thereto.
"Franchise" shall mean a franchise, permit or license
(including, without limitation, an FCC License), designation or certificate
granted by the United States or any other country, territory or state or a city,
town, county or other municipality, PUC or any other regulatory authority
pursuant to which a Person has the right to own, control, acquire, construct,
operate, manage or maintain a domestic cable television system, radio
broadcasting system or business directly related thereto.
"Lien" shall mean, as to any Person, any mortgage, lien,
pledge, adverse claim, charge, security interest or other encumbrance in or on,
or any interest or title of any vendor, lessor, lender or other secured party to
or of such Person under any conditional sale or other title retention agreement
or capital lease with respect to, any property or asset of such Person.
"Necessary Endorsement" shall mean undated stock powers
endorsed in blank (with signatures properly guaranteed) or other proper
instruments of assignment duly executed and such other instruments or documents
as the Agent may reasonably request.
"Proceeds" shall have the meaning assigned to such term under
the Uniform Commercial Code and, in any event, shall include (i) any and all
proceeds of any guarantee, insurance or indemnity payable to a Pledgor from time
to time with respect to any of the Collateral; (ii) any and all payments (in any
form whatsoever) made or due and payable to a Pledgor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental authority
(or any person acting under color of governmental authority); and (iii) any and
all other amounts from time to time paid or payable with respect to or in
connection with any of the Collateral.
"PUC" shall mean any state or local regulatory agency or body
that exercises jurisdiction over the ownership, construction, operation,
acquisition, management or maintenance of domestic cable television systems,
radio broadcasting systems or businesses directly related thereto.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code, as amended, as is in effect in the Commonwealth of Pennsylvania or in any
applicable state as the case may be.
SECTION 2. CREATION OF SECURITY INTEREST
As security for the payment and performance in full of the
Senior Secured Obligations, each Pledgor hereby hypothecates, pledges, assigns,
sets over and delivers unto the Agent, and grants to the Agent, for the equal
(in priority) and ratable benefit of the Senior
-3-
283
Secured Parties, a continuing first priority security interest in all its right,
title and interest in, to and under the Collateral, TO HAVE AND TO HOLD the
Collateral, together with all right, title, interest, powers, privileges and
preferences pertaining or incidental thereto, unto the Agent, forever; subject,
however, to the terms, covenants and conditions hereinafter set forth.
SECTION 3. DELIVERY OF COLLATERAL
3.1 At Time of Execution of Agreement. Prior to or
contemporaneously with the execution of this Subsidiary Pledge Agreement or, in
any event, prior to the Closing Date, each Pledgor shall deliver or cause to be
delivered to the Agent (i) any and all certificates and other instruments
representing or evidencing the Pledged Securities or Pledged Partnership
Interests, (ii) any and all certificates and other instruments or documents
representing any of the Collateral and (iii) all other property comprising part
of the Collateral, in each case along with the Necessary Endorsements. Each
Pledgor is, contemporaneously with the execution hereof, delivering to Agent, or
has previously delivered to Agent, an original counterpart of each partnership
or other similar agreement governing the Pledged Partnership Interests. (At any
time and from time to time at the request of Agent, each Pledgor shall deliver
to Agent certificates, if any, evidencing the Pledged Partnership Interests,
Partnership Interest assignment powers duly endorsed in blank for transfer and
UCC-1 Financing Statements covering the Collateral.)
3.2 Subsequent Delivery of Collateral. If a Pledgor shall
become entitled to receive or shall receive any securities or other property
(including, without limitation, shares of Pledged Securities or instruments
representing Pledged Partnership Interests acquired after the Closing Date, or
any options, warrants, rights or other similar property or certificates
representing a stock dividend, or any distribution in connection with any
recapitalization, reclassification or increase or reduction of capital, or
issued in connection with any reorganization of a Pledgor or any Subsidiary of a
Pledgor but excluding dividends and interest permitted to be retained under
Section 5) in respect of the Pledged Securities or Pledged Partnership Interests
(whether as an addition to, in substitution of, or in exchange for, such Pledged
Securities or Pledged Partnership Interests or otherwise), such Pledgor agrees:
(i) to accept the same as the agent of the Agent,
(ii) to hold the same in trust on behalf of and for
the benefit of the Agent, and
(iii) to deliver any and all certificates or
instruments evidencing the same to the Agent on or before the close of business
on the seventh (7th) Business Day following the receipt thereof by such Pledgor,
in the exact form received together with the Necessary Endorsements, to be held
by the Agent subject to the terms of this Subsidiary Pledge Agreement, as
additional Collateral.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PLEDGORS
4.1 Representations and Warranties. Each Pledgor represents
and warrants that each representation and warranty set forth in the Loan
Documents that relates to or refers to
-4-
284
a Pledgor or the Collateral subject hereto (or, in either case, any other term
that is used with the same or similar meaning) is incorporated herein by
reference and is true and correct on and as of the date hereof. Without limiting
the generality of the foregoing, each Pledgor further represents and warrants
that:
(i) the Pledged Securities and the Pledged
Partnership Interests included in the Collateral are not subject to any charter,
bylaw, statutory, contractual or other restriction governing their issuance,
transfer, ownership or control which restriction would limit the effectiveness
or enforceability of the pledge and security interest created under this
Subsidiary Pledge Agreement, except to the extent that regulatory considerations
reflected in Section 12 hereof may affect the enforceability of certain rights
and remedies of the Senior Secured Parties hereunder;
(ii) the stock and securities listed on Schedule I
hereto represents all of the stock and securities held by each Pledgor in any
Subsidiary of such Pledgor;
(iii) the interests listed on Schedule II hereto
represent all the partnership interests (whether as a general or limited
partner) or other ownership interests held by a Pledgor in any Subsidiary of
such Pledgor;
(iv) the Pledged Partnership Interests, by their
express terms, do not provide that they are securities governed by Article 8 of
the Uniform Commercial Code and are not held in a securities account or by any
financial intermediary;
(v) the chief executive office of each Pledgor and
the other offices or places of business of Pledgor or any offices where records
concerning the Collateral are kept are set forth on the signature pages hereto.
No Pledgor is known by any other name except the name appearing on the signature
page hereof;
(vi) each Pledgor is the legal and beneficial owner
of the Pledged Securities and Pledged Partnership Interests which is reflected
as owned by it on the schedules hereto, free and clear of any lien, security
interest, option or of the charge or encumbrance except for the security
interests created by this Subsidiary Pledge Agreement; and
(vii) the pledge of the Pledged Securities and
Pledged Partnership Interests pursuant to this Subsidiary Pledge Agreement and
the filing of the necessary financing statements (which filings have been duly
made) create a valid and perfected first priority security interest in the
Collateral securing payment of the Senior Secured Obligations.
4.2 Survival of Representations and Warranties. All the
foregoing representations and warranties (including, without limitation, those
incorporated by reference) shall survive the execution and delivery of this
Subsidiary Pledge Agreement and shall continue until this Subsidiary Pledge
Agreement is terminated as provided herein and shall not be affected or waived
by any inspection or examination made by or on behalf of Agent or any Senior
Secured Party.
-5-
285
SECTION 5. VOTING; DIVIDENDS
5.1 Rights Prior To Default. Other than during the existence
of an Event of Default,
(i) Each Pledgor shall be entitled to exercise any
and all voting and other consensual rights pertaining to the Collateral or any
part thereof for any purpose not inconsistent with the terms of the Loan
Documents.
(ii) Subject to and limited by the restrictions on
dividends and other payments in respect of the Collateral set forth in the Loan
Documents, each Pledgor shall be entitled to receive and retain any and all
dividends, interest and other payments paid in respect of the Collateral,
provided, however, that any and all
(a) dividends or other payments paid or
payable other than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, or in exchange for,
any Collateral,
(b) dividends and other distributions paid
or payable in cash in respect of any Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and
(c) except as otherwise provided in the
Credit Agreement, cash paid, payable or otherwise distributed in respect of
principal of, or in redemption of, or exchange for, any Collateral,
shall forthwith be delivered to the Agent to hold as Collateral and shall, if
received by a Pledgor, be received in trust for the benefit of the Agent on
behalf of the Senior Secured Parties, be segregated from the other property or
funds of such Pledgor, and be forthwith delivered to the Agent as Collateral in
the same form as so received (with any Necessary Endorsement).
(iii) The Agent shall execute and deliver to each
Pledgor all such proxies and other instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the voting and
other rights which it is entitled to exercise pursuant to paragraph (i) above
and to receive the dividends or interest payments which it is authorized to
receive and retain pursuant to paragraph (ii) above.
5.2 Rights After a Default. Upon the occurrence and during the
continuation of an Event of Default and as more fully set forth in Section 11
below.
(i) Subject to Section 12 below, all rights of a
Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to subsection 5.1 above and to
receive the dividends, interest and other payments which it would otherwise be
authorized to receive and retain pursuant to subsection 5.1 above shall cease,
and all such rights shall thereupon become vested in the Agent who shall have
the sole right to exercise
-6-
286
such voting and other consensual rights and to receive and hold as Collateral
such dividends, interest and other payments.
(ii) All dividends, interest and other payments which
are received by the Pledgor contrary to the provisions of paragraph (i) of this
subsection 5.2 shall be received in trust for the benefit of the Agent, shall be
segregated from other funds of each Pledgor and shall forthwith be paid over to
the Agent as Collateral in the same form as so received (with any Necessary
Endorsement).
5.3 Liability of Agent and of the Senior Secured Parties.
(i) As more fully set forth in the following
paragraph (ii), nothing in the Subsidiary Pledge Agreement shall be construed to
subject the Agent or any Senior Secured Party to liability as a partner in any
Subsidiary of a Pledgor that is a partnership or in any partnership entity in
which a Pledgor owns Collateral that is pledged hereunder nor shall the Agent or
any Senior Secured Party be deemed to have assumed any obligations under any
partnership agreement of such a Subsidiary or other entity or otherwise, unless
and until Agent exercises its right to be substituted for a Pledgor as a partner
pursuant hereto.
(ii) This Subsidiary Pledge Agreement is executed
only as security for the Senior Secured Obligations. THEREFORE (NOTWITHSTANDING
ANYTHING ELSE SET FORTH IN THIS SUBSIDIARY PLEDGE AGREEMENT WHICH, IF
INCONSISTENT WITH THIS PARAGRAPH (ii), SHALL BE DEEMED MODIFIED TO THE EXTENT
NECESSARY TO BE CONSISTENT WITH THIS PARAGRAPH (ii)), THE EXECUTION AND DELIVERY
OF THIS AGREEMENT SHALL NOT SUBJECT THE AGENT, THE SENIOR SECURED PARTIES TO, OR
IN ANY WAY RELIEVE ANY PLEDGOR OF, ANY LIABILITY OR OBLIGATION AS A PARTNER OR
OWNER OF ANY ISSUER OR ANY OTHER LIABILITIES OR OBLIGATIONS RELATING TO, OR
ARISING FROM, THE COLLATERAL. IT IS UNDERSTOOD AND AGREED THAT, NOTWITHSTANDING
THIS SUBSIDIARY PLEDGE AGREEMENT, ALL THE PLEDGORS' LIABILITIES OR OTHER
OBLIGATIONS AS PARTNER OR OTHER OWNER OF EQUITY CONSTITUTING COLLATERAL SHALL BE
AND REMAIN ENFORCEABLE AGAINST, BUT ONLY AGAINST THE PLEDGORS, UNLESS AND UNTIL,
AFTER AN EVENT OF DEFAULT, NOTICE IS GIVEN BY THE AGENT AND APPROPRIATE ACTION
IS TAKEN TO TRANSFER THE INTEREST IN THE SUBJECT COLLATERAL TO A PERSON
DESIGNATED BY THE AGENT.
SECTION 6. COVENANTS OF PLEDGORS
6.1 Each of the covenants and agreements which are set forth
or incorporated in the Loan Documents and which are applicable or refer to a
Pledgor or the Collateral subject hereto (or, in either case, any other term
that is used with the same or similar meaning) are incorporated herein by
reference and each Pledgor agrees to perform and abide by each such covenant and
agreement. Without limiting the generality of the foregoing and in furtherance
thereof, each Pledgor shall vote the stock and securities included in the
Collateral to comply with the covenants and agreements set forth in the Loan
Documents. Without limiting the generality
-7-
287
of the foregoing, each Pledgor (i) shall restrict the issuance of additional
intercompany debt except as permitted in the Loan Documents and additional
shares of stock or ownership interests of its Subsidiaries (or rights or options
therefore) except as permitted pursuant to the terms of the Loan Documents; (ii)
shall not sell or otherwise dispose of, or grant any option with respect to, any
of the Collateral except in connection with a sale permitted under the
provisions of the Credit Agreement providing for dispositions to third parties
free of Liens; and (iii) with respect to Collateral consisting of partnership or
other ownership interests, shall perform and discharge all material obligations
set forth in the governing agreements of such entities and not amend any such
agreements except as permitted by Section 7.26 of the Credit Agreement (or any
successor provision).
6.2 Proceeds of Collateral Disposition. During the continuance
of a Potential Event of Default or an Event of Default, at the Agent's request,
each or all of the Pledgors shall establish and maintain at all times a trust
account with the Agent, and all Proceeds, before or after an Event of Default,
shall be deposited directly and immediately into such account. The Pledgors
shall be responsible for all costs and fees arising with respect to such account
at the standard rates. Each of the Pledgors expressly and irrevocably authorizes
and consents to the ability of the Agent to charge such trust account, in its
sole discretion, and recover from the funds on deposit therein, from time to
time and at any time, and apply those funds against any and all Senior Secured
Obligations.
SECTION 7. FURTHER ASSURANCES
Each Pledgor agrees that at any time and from time to
time, at the expense of the Borrower and its Subsidiaries, such Pledgor and its
Subsidiaries will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Agent may request, in order to perfect and protect any security
interest granted or purported to be granted hereby or to enable the Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral including, without limitation, using its best efforts to cooperate in
obtaining any FCC, PUC, or other governmental approval of any action or
transaction contemplated hereby or thereby.
SECTION 8. ISSUERS OF PLEDGED PARTNERSHIP INTERESTS TO COMPLY WITH
INSTRUCTIONS OF AGENT
EACH PARTY HERETO WHICH IS AN ISSUER OF PLEDGED
PARTNERSHIP INTERESTS LISTED ON SCHEDULE IIA HERETO OR OTHER COLLATERAL HEREBY
AGREES TO COMPLY WITH ANY AND ALL ORDERS AND INSTRUCTIONS OF THE AGENT REGARDING
THE PLEDGED PARTNERSHIP INTERESTS OR SUCH OTHER COLLATERAL WITHOUT THE FURTHER
CONSENT OF THE PLEDGOR.
SECTION 9. AGENT APPOINTED ATTORNEY-IN-FACT; MAY PERFORM CERTAIN DUTIES
9.1 Appointment as Attorney-in-fact. Effective upon the
occurrence of an Event of Default, and so long as Agent reasonably believes such
Event of Default is continuing, the Pledgor hereby appoints the Agent as its
true and lawful agent, proxy, and attorney-in-fact for
-8-
288
the purpose of carrying out this Subsidiary Pledge Agreement and taking any
action and executing any instrument which the Agent may deem necessary or
advisable to accomplish the purposes hereof including, without limitation, the
execution on behalf of each Pledgor of any financing or continuation statement
with respect to the security interest created hereby and the endorsement of any
drafts or orders which may be payable to a Pledgor in respect of, arising out
of, or relating to any or all of the Collateral. This power shall be valid until
the termination of the security interests created hereunder, any limitation
under law as to the length or validity of a proxy to the contrary
notwithstanding. This appointment is irrevocable and coupled with an interest
and any proxies heretofore given by any Pledgor to any other Person are revoked.
The designation set forth herein shall be deemed to amend and supersede any
inconsistent provision in the articles of incorporation, bylaws or other
documents to which any Pledgor or any Subsidiary of a Pledgor is subject or to
which any is a party.
9.2 Registration of Securities. Each Pledgor shall register
the pledge provided for herein on the books of such Pledgor. Each Pledgor shall
notify each issuer (the "Issuer") of equity pledged hereunder to register the
pledge of Collateral in the name of the Agent on the books of such Issuer.
Further, except with respect to certificate securities delivered to the Agent
with appropriate transfer instruments, the applicable Pledgor shall deliver to
the Agent an acknowledgement of pledge (which, where appropriate, shall comply
with the requirements of the relevant Uniform Commercial Code with respect to
perfection by registration) signed by the Issuer, which acknowledgement shall
confirm that (a) it has registered the pledge on its books and records, (b) at
any time the Agent so directs after an Event of Default, the Issuer will
transfer the record ownership of the securities into the name of any designee of
the Agent, will take such steps as may be necessary to effect the transfer, and
will comply with all other instructions of the Agent regarding such Collateral
without the further consent of the Pledgor, and (c) the equity is not designated
by its terms as a security governed by Article 8 pursuant to Section 8-103 of
the Uniform Commercial Code as in effect in the governing jurisdiction, if
applicable. Each party hereto that is also an Issuer confirms the foregoing
statements with respect to any equity issued by it.
9.3 Performance of Pledgor's Duties. In furtherance, and not
by way of limitation, of the foregoing subsections 9.1 and 9.2, if (at any time
either before or after the occurrence of an Event of Default) a Pledgor fails to
perform any agreement contained herein, the Agent may (but under no circumstance
is obligated to) perform such agreement and any expenses incurred shall be
payable by the Borrower and its Subsidiaries provided, however, that nothing
herein shall be deemed to relieve a Pledgor from fulfilling any of its
obligations hereunder.
9.4 Acts May Be Performed By Agents and Employees. Any act of
the Agent to be performed pursuant to this Section 9 or elsewhere in this
Subsidiary Pledge Agreement may be performed by agents or employees of the
Agent.
SECTION 10. STANDARD OF CARE
10.1 In General. No act or omission of any Senior Secured
Party (or agent or employee thereof) shall give rise to any defense,
counterclaim or offset in favor of a Pledgor or
-9-
289
any claim or action against any such Senior Secured Party (or agent or employee
thereof), in the absence of gross negligence or willful misconduct of such
Senior Secured Party as determined in a final, nonappealable judgment of a court
of competent jurisdiction. The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which the Agent accords to its own property, it being understood that it has no
duty to take any action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral or to preserve
any rights of any parties and shall only be liable for losses which are a result
of its gross negligence or willful misconduct as determined in a final,
nonappealable judgment of a court of competent jurisdiction.
10.2 Reliance on Advice of Counsel. In taking any action under
this Subsidiary Pledge Agreement, the Agent shall be entitled to rely upon the
advice of counsel of Agent's choice and shall be fully protected in acting on
such advice whether or not the advice rendered is ultimately determined to have
been accurate.
SECTION 11. DEFAULT
11.1 Certain Rights Upon Default. In addition to any other
rights accorded to the Agent and the Senior Secured Parties hereunder, upon the
occurrence and during the continuation of an Event of Default:
11.1.1 The Agent shall be entitled to receive any
interest, cash dividends or other payments on the Collateral and, subject to
Section 12 below, to exercise in the Agent's discretion all voting rights
pertaining thereto as more fully set forth in Section 5 above. Without limiting
the generality of the foregoing, subject to Section 12 below, the Agent shall
have the right to exercise all rights with respect to the Collateral as if it
were the sole and absolute owner thereof, including, without limitation, to vote
and/or to exchange, at its sole discretion, any or all of the Collateral in
connection with a merger, reorganization, consolidation, recapitalization or
other readjustment concerning or involving the Collateral or any Pledgor or any
Subsidiary of any Pledgor.
11.1.2 Each Pledgor and each of its Subsidiaries
shall take any action necessary or required or requested by the Agent in order
to allow it fully to enforce the security interest in the Collateral hereunder
and to realize thereon to the fullest extent possible, including, but not
limited to, the filing of any claims with any court, liquidator, trustee,
guardian, receiver or other like person or party.
11.1.3 The Agent shall have all of the rights of a
secured party under the Uniform Commercial Code of Pennsylvania, as amended, and
any other applicable law including the right to sell on such terms as it may
deem appropriate any or all of the Collateral at one or more public or private
sales upon at least ten (10) Business Days' written notice to the Pledgors of
the time and place of any public sale and of the date on which the Collateral
will first be offered for sale in the case of any private sale. Agent shall have
the right to bid thereat or purchase any part or all the Collateral in its own
or a nominee's name (subject to applicable FCC or PUC requirements or
restrictions). The Agent shall have the right to apply the proceeds of the
-10-
290
sale, after deduction for any costs and expenses of sale (including any
liabilities incurred in connection therewith including reasonable attorneys'
fees and allocated costs of attorneys who are employees of the Agent), to the
payment of the Senior Secured Obligations in any manner or order which the
Agent, in its sole discretion, may elect (whether pursuant to the Credit
Agreement or otherwise), to the payment of any other amount required by law
(including without limitation Section 9-504(l)(c) of the Uniform Commercial
Code), and to pay any remaining proceeds to the applicable Pledgor or its
successors or assigns or to whomsoever may lawfully be entitled to receive the
same or as a court of competent jurisdiction may direct, without further notice
to or consent of such Pledgor and without regard to any equitable principles of
marshalling or other like equitable doctrines. Each Pledgor hereby acknowledges
and agrees that the notice provided for above is reasonable and expressly waives
any rights it may have of equity of redemption, stay or appraisal with respect
to the Collateral.
11.1.4 For purposes hereof, a written agreement to
purchase the Collateral or any portion thereof shall be treated as a sale
thereof; the Agent shall be free to carry out such sale pursuant to such
agreement, and no Pledgor shall be entitled to the return of the Collateral or
any portion thereof, notwithstanding the fact that after Agent shall have
entered into such an agreement, any and all Events of Default shall have been
remedied and the Senior Secured Obligations paid in full.
11.1.5 The Agent shall have the right with full power
of substitution either in the Agent's name or the name of a Pledgor, to ask for,
demand, xxx, collect and receive any and all moneys due or to become due under
and by virtue of the Collateral and to settle, compromise, prosecute or defend
any action, claim or proceeding with respect thereto, provided, however, that
nothing herein shall be construed as requiring the Agent to take any action,
including, without limitation, requiring or obligating the Agent to make any
inquiry as to the nature or sufficiency of any payment received, or to present
or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby.
11.1.6 The Agent shall be entitled to the appointment
of a receiver or trustee for all or any part of the businesses of a Pledgor or
its Subsidiaries, which receiver shall have such powers as may be conferred by
law or the appointing authority.
11.2 Agent May Exercise Less Than All Rights. Each Pledgor
hereby acknowledges and agrees that the Agent is not required to exercise all
remedies and rights available to it equally with respect to all of the
Collateral, and the Agent may select less than all of the Collateral with
respect to which the remedies as determined by the Agent may be exercised.
11.3 Duties of Pledgors and Subsidiaries of the Pledgors With
Respect to Transferee. In the event that, upon an occurrence of an Event of
Default, the Agent shall sell all or any of the Collateral to another party or
parties (herein called "Transferee") or shall purchase or retain all or any of
the Collateral, such Pledgor and each Subsidiary of such Pledgor shall:
-11-
291
(i) Deliver to the Agent or Transferee, as the case
may be, the articles of incorporation, bylaws, minute books, stock certificate
books, corporate seals, deeds, leases, indentures, agreements, evidences of
indebtedness, books of account, financial records and all other documents and
records of such Pledgor and each Subsidiary of such Pledgor;
(ii) Use its best efforts to obtain resignations of
the persons then serving as officers and directors of such Pledgor and each
Subsidiary of such Pledgor, if so requested; and
(iii) Use its best efforts to obtain any approvals
that are required by any governmental or regulatory body in order to permit the
sale of the Collateral to the Transferee or the purchase or retention of the
Collateral by the Agent and allow the Transferee or the Agent to continue the
business of the issuer.
SECTION 12. ACKNOWLEDGEMENT OF REGULATORY CONSIDERATIONS; UNIQUE NATURE
OF ASSETS
12.1 FCC/PUC Approval. It is hereby acknowledged that transfer
of certain Collateral and the exercise of certain other remedies provided herein
may constitute a transfer of an FCC License or other Franchise or a sale or
transfer of control of a holder of an FCC License or other Franchise, requiring
approval of the FCC or PUC, pursuant to rules and regulations of the FCC or PUC.
Notwithstanding anything to the contrary contained in this Agreement, the Agent
will not knowingly take any action pursuant to this Agreement which would
constitute or result in assignment of an FCC License or other Franchise or any
transfer of control of the holder of an FCC License or other Franchise if such
assignment of license or transfer of control would require under then existing
law (including the written rules and regulations promulgated by the FCC or any
PUC), the prior approval of the FCC or such PUC, without first obtaining such
approval. In connection with this provision, the Agent shall be entitled to rely
upon the advice of counsel of Agent's choice whether or not the advice rendered
is ultimately determined to have been accurate.
12.2 Pledgor and Subsidiary of Pledgor Assistance in Obtaining
Approval. Without limiting the generality of Section 7 above, if counsel to the
Agent reasonably determines that the consent of the FCC or the PUC is required
in connection with any of the actions hereunder or under any other Loan
Document, then the Borrower, each Pledgor and each Subsidiary thereof (at its
cost and expense) agrees to use its best efforts to secure such consent and to
cooperate fully with the Agent in any action to secure such consent. Without
limiting the generality of the foregoing, the Borrower, each Pledgor and each
Subsidiary thereof shall promptly execute and file and/or cause the execution
and filing of all applications, certificates, instruments, and other documents
and papers that the Agent deems necessary or advisable to file in order to
obtain any necessary governmental consent, approval, or authorization, and if
the Borrower, any Pledgor or any Subsidiary thereof fails or refuses to execute
(or fails or refuses to cause another Person to execute) such documents, the
Agent or the clerk of any court of competent jurisdiction may execute and file
the same on behalf of the Pledgor or such other Person.
-12-
292
12.3 Unique Nature of Assets. It is agreed that the FCC
Licenses and other Franchises held by each Pledgor and its Subsidiaries are
unique assets which (or the control of which) may have to be transferred in
order for the Agent adequately to realize the value of its security interest. A
violation of the covenants set forth in this Section would result in irreparable
harm to the Agent for which monetary damages are not readily ascertainable.
Therefore, in addition to any other remedy which may be available to the Agent
at law or in equity, Agent shall have the remedy of specific performance of the
provisions of this Section. To enforce the provisions of this Section, the Agent
is authorized to request the consent or approval of the FCC or PUC to a
voluntary or an involuntary transfer of control of any FCC License or other
Franchise or sale or transfer of control of a holder of an FCC License or other
Franchise.
12.4 Selection by Agent of Different Transferee. If, for any
reason, the FCC or PUC does not approve within a reasonable period of time
(which period shall be determined conclusively by the Agent), the initial
application for approval of the transfer of the Collateral, the Agent shall then
have the right to transfer the Collateral to such other Person as the Agent
shall select (subject to the prior approval of the FCC or PUC). With respect to
such subsequent selection, the Borrower and each Pledgor agrees to cooperate
fully in the manner set forth above. Exercise by the Agent of the right to such
cooperation shall not be exhausted by the initial or any subsequent exercise
thereof.
SECTION 13. SECURITIES LAW PROVISION
Each Pledgor recognizes that the Agent may be limited
in its ability to effect a sale to the public of all or part of the Collateral
by reason of certain prohibitions in the Securities Act of 1933, as amended, or
other federal or state securities laws (collectively, the "Securities Laws"),
and may be compelled to resort to one or more sales to a restricted group of
purchasers who may be required to agree to acquire the Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. Each Pledgor agrees that sales so made may be at prices and on terms
less favorable than if the Collateral were sold to the public, and that the
Agent has no obligation to delay the sale of any Collateral for the period of
time necessary to register the Collateral for sale to the public under the
Securities Laws. Each Pledgor and each Subsidiary thereof shall cooperate with
the Agent in its attempts to satisfy any requirements under the Securities Laws
(including without limitation registration thereunder if requested by Agent)
applicable to the sale of the Collateral by the Agent.
SECTION 14. SECURITY INTEREST ABSOLUTE; WAIVERS BY PLEDGOR
14.1 Absolute Nature of Security Interest. All rights of the
Agent hereunder, the grant of the security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of any of the terms
of the Loan Documents or any other instrument or document relating hereto or
thereto, (ii) any change in the time, manner or place of payment of, increases
in, or in any other term of, all or any of the Senior Secured Obligations, or
any other amendment or waiver of any terms related thereto, (iii) any exchange,
release or nonperfection of any other collateral, or any release or amendment or
waiver of any guaranty, or (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Borrower, any Pledgor
or any
-13-
293
other Person in respect of the Senior Secured Obligations or in respect of this
Subsidiary Pledge Agreement or any other Loan Document or any obligations
hereunder or thereunder.
14.2 No Duty To Marshal Assets. The Agent shall have no
obligation to marshal any assets in favor of any Pledgor or any other Person or
against or in payment of any or all of the Senior Secured Obligations.
14.3 Waiver with Right of Subrogation, Etc. Each Pledgor
acknowledges that until all the Senior Secured Obligations shall have been
indefeasibly paid in full, such Pledgor shall have no right (or hereby waives
any such right) of subrogation, reimbursement, or indemnity whatsoever, in
respect of the Borrower or any of its Subsidiaries, arising out of remedies
exercised by the Agent hereunder.
14.4 Waivers. Each Pledgor hereby waives notice of acceptance
of this Subsidiary Pledge Agreement. Each Pledgor further waives presentment and
demand for payment of any of the Senior Secured Obligations, protest and notice
of dishonor or default with respect to any of the Senior Secured Obligations,
and all other notices to which a Pledgor might otherwise be entitled, except as
otherwise expressly provided in this Subsidiary Pledge Agreement or any of the
other Loan Documents. Each Pledgor (to the extent that it may lawfully do so)
covenants that it shall not at any time insist upon or plead, or in any manner
claim or take the benefit of, any stay, valuation, appraisal or redemption now
or at any time hereafter in force that, but for this waiver, might be applicable
to any sale made under any judgment, order or decree based on this Subsidiary
Pledge Agreement or any other Loan Document; and each Pledgor (to the extent
that it may lawfully do so) hereby expressly waives and relinquishes all benefit
of any and all such laws and hereby covenants that it will not hinder, delay or
impede the execution of any power in this Subsidiary Pledge Agreement or in any
other Loan Document delegated to the Agent, but that it will suffer and permit
the execution of every such power as though no such law or laws had been made or
enacted.
SECTION 15. NON-WAIVER AND NON-EXCLUSIVE REMEDIES
15.1 Non-Exclusive Remedies. No remedy or right herein
conferred upon, or reserved to the Agent is intended to be to the exclusion of
any other remedy or right, but each and every such remedy or right shall be
cumulative and shall be in addition to every other remedy or right given
hereunder or under any other Loan Document or under law.
15.2 Delay and Non-Waiver. No delay or omission by the Agent
to exercise any remedy or right hereunder shall impair any such remedy or right
or shall be construed to be a waiver of any Event of Default, or an acquiescence
therein, nor shall it affect any subsequent Event of Default of the same or of a
different nature.
SECTION 16. EFFECT OF PLEDGE ON CERTAIN SHAREHOLDER RIGHTS
If any of the Collateral subject to this Subsidiary
Pledge Agreement consists of shares of nonvoting stock (regardless of their
class, designation, preference or rights) or other instruments which may be
converted into voting stock upon the occurrence of certain
-14-
294
events (including, without limitation, upon the transfer of all or any of the
other stock or assets of the issuer), it is agreed that the pledge of such stock
or other instruments pursuant to this Subsidiary Pledge Agreement or the
enforcement of any of the Agent's rights hereunder shall not be deemed to be the
type of event which would trigger such conversion rights notwithstanding any
provisions in the charter, bylaws or agreements of the issuer or a Pledgor to
the contrary.
SECTION 17. CONTINUING SECURITY INTEREST; HEIRS AND ASSIGNS
This Subsidiary Pledge Agreement shall create a
continuing security interest in the Collateral and shall (i) remain in full
force and effect until terminated pursuant to Section 18 below, (ii) be binding
upon each Pledgor, its successors and assigns and (iii) inure to the benefit of
the Agent, the other Senior Secured Parties and their respective successors,
transferees and assigns provided, however, that no Pledgor shall be permitted to
transfer any of its obligations hereunder.
SECTION 18. TERMINATION OF AGREEMENT; RELEASE OF COLLATERAL
18.1 Termination of Agreement. At such time as (a) the Senior
Secured Parties have no obligation to make further loans or other extensions of
credit to the Borrower, and (b) all the Senior Secured Obligations have been
indefeasibly paid and/or performed in full, then this Subsidiary Pledge
Agreement shall terminate and the Collateral shall be released pursuant to
subsection 18.2 below, provided that if at the time of the payment in full of
the Senior Secured Obligations (i) such payment and performance is not subject
to any filed or threatened claim, contest, voidance or offset of any kind
whatsoever, (ii) the chief financial officer of the Borrower so certifies in
writing to the Agent and (iii) the Borrower supplies to Agent such valuations,
information, evidence, certifications and opinions as Agent may request in
connection therewith, this Subsidiary Pledge Agreement shall terminate upon
satisfaction of the conditions in clauses (a) and (b) above without giving
effect to the requirement that the payment in full be indefeasible.
18.2 Duties of Agent With Respect To Release of Collateral.
When this Agreement terminates pursuant to subsection 18.1 above, the Agent
shall reassign and deliver to each Pledgor, or to such Person as each Pledgor
shall designate, against receipt, such of the Collateral (if any) as shall not
have been sold or otherwise applied by the Agent pursuant to the terms hereof
and shall still be held by it hereunder, together with appropriate instruments
of reassignment and release, all without any recourse to, or warranty whatsoever
by, the Agent, at the sole cost and expense of the Borrower and its
Subsidiaries.
18.3 Release of Certain Collateral. Effective upon the closing
of a sale of any Collateral in conformity with the provisions of the Credit
Agreement providing for dispositions to third parties free of Liens, and receipt
by the Agent of a certification to such effect from the chief financial officer
of the Borrower, then the security interest in the assets which are the subject
of the sale (the "Sold Collateral") shall terminate. The Agent shall thereupon
reassign and deliver to the applicable Pledgor, or to such Person as such
Pledgor shall designate, against receipt, the Sold Collateral, together with
appropriate instruments or reassignment and release,
-15-
295
all without any recourse to, or warranty whatsoever by, the Agent, at the sole
cost and expense of the Borrower and its Subsidiaries.
SECTION 19. PAYMENT OF COSTS AND EXPENSES; INDEMNITIES
19.1 Costs and Expenses. Upon demand, each Pledgor shall pay
to the Agent the amount of any and all reasonable expenses incurred by the Agent
hereunder or in connection herewith, including, without limitation those that
may be incurred in connection with (i) the administration of this Subsidiary
Pledge Agreement (ii) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Agent hereunder or (iv) the failure of a
Pledgor to perform or observe any of the provisions hereof.
19.2 Fees. The Borrower and its Subsidiaries will, upon
demand, pay to the Agent such reasonable fees (in addition to its expenses) for
its services as Agent as may be agreed upon from time to time between the Agent
and the Borrower.
19.3 Indemnification. The Borrower and its Subsidiaries
jointly and severally agree to indemnify and hold harmless the Agent and other
Senior Secured Parties (and, in each case, its directors, officers, agents and
employees) to the fullest extent permitted by law, from and against any and all
claims, losses, liabilities, actions, judgments, demands, costs and expenses of
whatever nature incurred by the Agent or such Senior Secured Party hereunder or
in connection herewith, unless such claim, loss, liability, action, judgment,
demand, cost or expense is the result of the willful misconduct or gross
negligence of said indemnified party as shall have been determined in a final,
nonappealable judgment of a court of competent jurisdiction. This
indemnification shall survive the termination of this Agreement.
19.4 Taxes. The Borrower and its Subsidiaries hereby jointly
and severally agree to pay to the Agent, upon demand, the amount of any taxes
which the Agent may have been required to pay by reason of the security
interests established pursuant to this Subsidiary Pledge Agreement (including
any applicable transfer taxes).
19.5 Interest. All monetary obligations of the Borrower and
its Subsidiaries under this Section 19 shall bear interest following demand at
the Base Rate (as defined in the Credit Agreement) plus two (2) per cent.
19.6 Additional Obligations. Any amounts payable pursuant to
this Section 19 shall be additional Senior Secured Obligations secured hereby.
SECTION 20. MISCELLANEOUS PROVISIONS
20.1 Notices. All notices, requests, demands, directions and
other communications (collectively "notices") given or made upon any party under
the provisions of this Subsidiary Pledge Agreement shall be by telephone or in
writing (including facsimile communication) unless otherwise expressly provided
under this Subsidiary Pledge Agreement and if in writing, shall be delivered or
sent by facsimile to the respective parties at the addresses
-16-
296
and numbers set forth under their respective names on the signature pages to
this Subsidiary Pledge Agreement or in accordance with any subsequent unrevoked
written direction from any party to the others. All notices shall, except as
otherwise expressly provided in this Subsidiary Pledge Agreement, be effective
(a) in the case of facsimile, when received, (b) in case of hand-delivered
notice, when hand delivered, (c) in the case of telephone, when telephoned,
provided, however, that in order to be effective, telephonic notices must be
confirmed in writing no later than the next day by letter, facsimile or telex,
(d) if given by mail, four (4) days after such communication is deposited in the
mails with first class postage prepaid, return receipt requested, and (e) if
given by any other means (including air courier), when delivered; provided, that
notices to the Agent shall not be effective until received. In the event of a
discrepancy between any telephonic or written notice, the written notice shall
control.
20.2 Entire Agreement. This Subsidiary Pledge Agreement sets
forth all of the promises, covenants, agreements, conditions and understandings
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings, inducements or conditions,
express or implied, oral or written, with respect thereto, except as contained
or referred to herein.
20.3 Amendments. The terms of this Subsidiary Pledge Agreement
may be amended, terminated, modified, supplemented or waived only upon the
written consent of the Agent and each Pledgor. The rights of the Agent to so
change, modify, waive, discharge or terminate any provision hereof is subject to
the terms of Section 12.5 of the Credit Agreement, it being understood, however,
that the Pledgors are not third party beneficiaries of Section 12.5 of the
Credit Agreement.
20.4 Governing Law. This Subsidiary Pledge Agreement and the
rights and obligations of the parties hereunder shall be construed and enforced
in accordance with and shall be governed by the laws of the Commonwealth of
Pennsylvania.
20.5 Arbitration; Consent to Jurisdiction, Service and Venue;
Waiver of Jury Trial.
20.5.1 Arbitration.
(i) Upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any claim or controversy
arising out of, or relating to, the Loan Documents between any or all of the
parties hereto (a "Dispute") shall be resolved by binding arbitration conducted
under and governed by the Commercial Financial Disputes Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the "AAA") and the
Federal Arbitration Act. Disputes may include, without limitation, tort claims,
counterclaims, a dispute as to whether a matter is subject to arbitration,
claims brought as class actions, or claims arising from documents executed in
the future. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this arbitration provision does not
apply to disputes under or related to Interest Rate Protection Agreements.
-17-
297
(ii) All arbitration hearings shall be conducted in
the City of Philadelphia, Commonwealth of Pennsylvania unless otherwise agreed
by all parties to such arbitration. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall conclude within 120 days of demand
for arbitration. These time limitations may not be extended unless a party shows
cause for extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
the AAA. The parties do not waive applicable Federal or state substantive law
except as provided herein.
(iii) Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to proceed in any court
of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (a) all rights to foreclose against any real or
personal property or other security by exercising a power of sale or under
applicable law by judicial foreclosure including a proceeding to confirm the
sales; (b) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property; and (c) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and filing of involuntary bankruptcy proceedings. Any claim or
controversy with regard to any party's entitlement to such remedies is a
Dispute.
(iv) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A
REMEDY OF SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER
PARTIES IN ANY DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TO SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN
THE FUTURE IN CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS RESOLVED BY
ARBITRATION OR JUDICIALLY.
20.5.2 Consent to Jurisdiction, Service and Venue;
Waiver of Jury Trial.
(i) With respect to any matters that may be heard
before a court of competent jurisdiction under paragraph (iii) of the preceding
subsection 20.5.1, each of the Pledgors hereby consents to the jurisdiction and
venue of the courts of the Commonwealth of Pennsylvania or of any federal court
located in such state, waives personal service of any and all process upon it
and consents that all such service of process be made by certified or registered
mail directed to the such Pledgor at the address provided for in Section 20.1
above and service so made shall be deemed to be completed upon actual receipt.
Each of the Pledgors hereby waives the right to contest the jurisdiction and
venue of the courts located in the County of Philadelphia, Commonwealth of
Pennsylvania on the ground of inconvenience or otherwise and, further, waives
any right to bring any action or proceeding against (a) the Agent in any court
outside the County of Philadelphia, Commonwealth of Pennsylvania, or (b) any
other Senior Secured Party other than in a state within the United States
designated by such Senior Secured Party. The provisions of this Section 20.5
shall not limit or otherwise affect the right of the Agent or any Senior Secured
Party to institute and conduct an action in any other appropriate manner,
jurisdiction or court.
-18-
298
(ii) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE,
SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY
TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR ANY
OTHER LOAN DOCUMENT OR ANY GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE
RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE AGENT NOR
ANY SENIOR SECURED PARTY NOR ANY PLEDGOR NOR ANY OTHER PERSON WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.
(iii) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH
(iv) OF THE PRECEDING SUBSECTION 20.5.1 EXCEPT AS PROHIBITED BY LAW, EACH PARTY
TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY
ARBITRATION OR OTHER LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
EACH PARTY TO THIS AGREEMENT (i) CERTIFIES THAT NEITHER THE AGENT NOR ANY
REPRESENTATIVE, OR ATTORNEY OF THE AGENT NOR ANY SENIOR SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH SENIOR SECURED PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 20.5. THE PROVISIONS OF THIS SECTION 20.5 HAVE
BEEN FULLY DISCLOSED TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER
PARTY THAT THE PROVISIONS OF THIS SECTION 20.5 WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
20.6 Severability. If any of the provisions or terms of this
Subsidiary Pledge Agreement shall for any reason be held to be invalid or
unenforceable such invalidity or unenforceability shall not affect any of the
other terms hereof, but this Subsidiary Pledge Agreement shall be construed as
if such invalid or unenforceable term had never been contained herein. Any such
invalidity or unenforceability in a particular jurisdiction shall not be deemed
to render a provision invalid or unenforceable in any other jurisdiction.
20.7 Counterparts. This Subsidiary Pledge Agreement may be
executed in one or more counterparts, each of which shall constitute an original
agreement, but all of which together shall constitute one and the same
instrument. A photocopied or facsimile copy of any signature page to this
Subsidiary Pledge Agreement shall be deemed to be the functional equivalent of a
manually executed original for all purposes.
20.8 Compliance with Partnership Agreement. To the extent that
the grant of the security interest herein created in the Pledged Partnership
Interests and the enforcement of the terms hereof require the consent, approval
or action of any partner of the subject partnership or compliance with any
provisions of the subject partnership agreement, each Pledgor hereby
-19-
299
grants such consent and approval and waives any such noncompliance with the
terms of said partnership agreements.
20.9 Joint and Several Liability. All Pledgors shall jointly
and severally be liable for the obligations of each Pledgor to the Agent
hereunder. To the extent that such obligations are coextensive with obligations
of the Borrower, the Borrower and all Pledgors shall be jointly and severally
liable.
20.10 Additional Pledgors. Any Person that shall at any time
have any right or interest in the capital stock, partnership interests or other
equity of any Subsidiary of the Borrower shall, if not already a party to this
Agreement or another Pledge Agreement, become a party hereto (an "Additional
Pledgor") by the execution and delivery of an Additional Pledgor Joinder in
substantially the form of Exhibit A attached hereto and shall comply with the
provisions hereof applicable to Pledgors. Concurrent therewith, the Additional
Pledgor shall deliver replacement schedules for, or supplements to, Schedule I,
Schedule II, Schedule IIA and/or Schedule III to this Agreement, as applicable,
which replacement Schedules shall supersede, or supplements shall modify, the
Schedules then in effect. Upon delivery of the foregoing to the Agent, the
Additional Pledgor shall be and become a Pledgor for all purposes hereof as
fully and to the same extent as if it were an original signatory hereto and
shall be deemed to have made the representations and warranties set forth in
Section 4.1 hereof as of the date of execution and delivery of such Additional
Pledgor Joinder and thereafter at any time that such representations must be
restated pursuant to the terms of the Loan Documents.
20.11 Effect of Amendment. On and after the effectiveness of
this Subsidiary Pledge Agreement, any reference to the Subsidiary Pledge
Agreement or similar term used in any Loan Documents shall mean and refer to
this Subsidiary Pledge Agreement, as amended, modified or supplemented, from
time to time.
-20-
300
IN WITNESS WHEREOF, the parties have caused this Subsidiary
Pledge Agreement to be duly executed and delivered by their respective
authorized officers on the date first above written.
PLEDGORS: SUSQUEHANNA CABLE CO.
SUSQUEHANNA CABLE INVESTMENT CO.
CABLE TV OF EAST PROVIDENCE, INC.
CASCO CABLE TELEVISION, INC.
CASCO CABLE TELEVISION OF BATH, MAINE
SBC CABLE CO.
YORK CABLE TELEVISION, INC.
SUSQUEHANNA RADIO CORP.
RADIO CINCINNATI, INC.
RADIO INDIANAPOLIS, INC.
RADIO METROPLEX, INC.
RADIO SAN FRANCISCO, INC.
KRBE CO.
KNBR, INC.
BAY AREA RADIO CORP.
WSBA LICO, INC.
WVAE LICO, INC.
WNNX LICO, INC.
KNBR LICO, INC.
KRBE LICO, INC.
Signature Page to the Subsidiary Pledge Agreement
-21-
301
INDIANAPOLIS RADIO LICENSE CO.
SUSQUEHANNA DATA SERVICES, INC.
SUSQUEHANNA FIBER SYSTEMS, INC.
MEDIA PCS VENTURES, INC.
KFFG LICO, INC.
KPLX RADIO, INC.
KPLX LICO, INC.
KLIF BROADCASTING, INC.
XXXX XXXX, INC.
KLIF RADIO, INC.
TEXAS STAR RADIO, INC.
INDY LICO, INC.
WRRM LICO, INC.
WFMS LICO, INC.
By:_______________________________________
Xxxx X. Xxxxxxx, on behalf of each of
the foregoing as Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000)000-0000
Attn: Xxxxx Xxxxxx, Esquire
Signature Page to the Subsidiary Pledge Agreement
-22-
302
KPLX LIMITED PARTNERSHIP, by KPLX Radio,
Inc., its General Partner
KLIF BROADCASTING LIMITED PARTNERSHIP,
by KLIF Radio, Inc., its General Partner
By:_______________________________________
Xxxx X. Xxxxxxx on behalf of each of the
foregoing as Treasurer of the General
Partner
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000)000-0000
Attn: Xxxxx Xxxxxx, Xxxxxxx
-00-
000
XXXXX: FIRST UNION NATIONAL BANK, in its
capacity as Agent
By:_______________________________________
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
Notice Information
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx,
Senior Vice President
Signature Page to the Subsidiary Pledge Agreement
-24-
304
JOINDER
The undersigned acknowledges the Subsidiary Pledge Agreement to which
this Joinder is attached, and hereby agrees to be bound by the foregoing
Subsidiary Pledge Agreement and to perform the covenants contained therein
required to be performed by it.
SUSQUEHANNA MEDIA CO.
By:_______________________________________
Name: Xxxx X. Xxxxxxx
Title: Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esquire
Joinder to the Subsidiary Pledge Agreement
-25-
305
SCHEDULE I
TO SUBSIDIARY PLEDGE AGREEMENT
PLEDGED SECURITIES
SHARES OF CAPITAL STOCK OF THE SUBSIDIARIES
OF THE BORROWER OWNED BY EACH PLEDGOR
SHARES OWNED BY SUSQUEHANNA RADIO CORP.
360 shares of Common Stock of Radio Cincinnati, Inc.
4,500 shares of Common Stock of Radio Indianapolis, Inc.
1,800 shares of Common Stock of Radio Metroplex, Inc.
4,000 shares of Common Stock of KLIF Broadcasting, Inc.
12,000 shares of Common Stock of Radio San Francisco, Inc.
400 shares of Common Stock of KRBE Co.
85,000 shares of Common Stock of Bay Area Radio Corp.
10 shares of Common Stock of WSBA Lico, Inc.
10 shares of Common Stock of WVAE Lico, Inc.
10 shares of Common Stock of WNNX Lico, Inc.
1,000 shares of Common Stock of Indianapolis Radio License Co.
10,000 shares of Common Stock of Texas Star Radio, Inc.
SHARES OWNED BY BAY AREA RADIO CORP.
1 share of Common Stock of KNBR, Inc.
SHARES OWNED BY KNBR, INC.
10 shares of Common Stock of KNBR Lico, Inc.
306
SHARES OWNED BY KRBE CO.
10 shares of Common Stock of KRBE Lico, Inc..
SHARES OWNED BY RADIO SAN FRANCISCO, INC.
10 shares of Common Stock of KFFG Lico, Inc..
SHARES OWNED BY SUSQUEHANNA CABLE CO.
51 shares of Common Stock of Susquehanna Cable Investment Co.
320 shares of Common Stock of Casco Cable Television, Inc.
200 shares of Common Stock of Casco Cable Television of Bath, Maine
6,000 shares of Common Stock of Cable TV of East Providence, Inc.
43,200 shares of Common Stock of SBC Cable Co.
50 shares of Common Stock of York Cable Television, Inc.
SHARES OWNED BY RADIO METROPLEX, INC.
10 shares of Common Stock of KPLX Lico, Inc.
10 shares of Common Stock of KPLX Radio, Inc.
SHARES OWNED BY KLIF BROADCASTING, INC.
10 shares of Common Stock of XXXX Xxxx, Inc.
10 shares of Common Stock of KLIF Radio, Inc.
SHARES OWNED BY INDIANAPOLIS RADIO LICENSE CO.
10 shares of Common Stock of Indy Lico, Inc.
SHARES OWNED BY RADIO CINCINNATI, INC.
10 shares of Common Stock of WRRM Lico, Inc.
SHARES OWNED BY RADIO INDIANAPOLIS, INC.
10 shares of Common Stock of WFMS Lico, Inc.
-2-
307
SCHEDULE II
TO SUBSIDIARY PLEDGE AGREEMENT
PLEDGED SUBSIDIARY PARTNERSHIP INTERESTS
PARTNERSHIP INTERESTS OWNED BY SUSQUEHANNA RADIO CORP.
90.1% interest in Paragon Research Limited Partnership
PARTNERSHIP INTERESTS OWNED BY KPLX RADIO, INC.
1% interest in KPLX Limited Partnership
PARTNERSHIP INTERESTS OWNED BY RADIO METROPLEX, INC.
99% interest in KPLX Limited Partnership
PARTNERSHIP INTERESTS OWNED BY KLIF RADIO, INC.
1% interest in KLIF Broadcasting Limited Partnership
PARTNERSHIP INTERESTS OWNED BY KLIF BROADCASTING, INC.
99% interest in KLIF Broadcasting Limited Partnership
-3-
308
EXHIBIT A
FORM OF ADDITIONAL PLEDGOR JOINDER
Subsidiary Pledge Agreement dated as of ______, 1999 among
certain Subsidiaries of Susquehanna Media Co. as
Pledgors party thereto, from time to time, and First Union National Bank as
Agent (the "Subsidiary Pledge Agreement")
Reference is made to the Subsidiary Pledge Agreement as defined above;
capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in, or by reference in, the Subsidiary Pledge
Agreement.
The undersigned hereby agrees that upon delivery of this Additional
Pledgor Joinder to the Agent referred to above, the undersigned shall be and
become a Pledgor for all purposes of the Subsidiary Pledge Agreement as fully
and to the same extent as if it were an original signatory thereto and shall be
deemed to have made the representations and warranties set forth in Section 4.1
therein as of the date of execution and delivery of this Additional Pledgor
Joinder and at any future dates that such representations must be restated
pursuant to the terms of the Loan Documents. Without limiting the generality of
the foregoing, the undersigned specifically acknowledges and agrees to the
Arbitration Clause in Section 20.5 thereof and to the Consent to Jurisdiction
and Waiver of Jury Trial provisions set forth in Section 20.6 thereof.
Attached hereto are [supplemental] [replacement] Schedules [I, II, IIA
and/or III] to the Subsidiary Pledge Agreement.
An executed copy of this Joinder shall be delivered to the Agent, and the Agent
and the Senior Secured Parties may rely on the matters set forth herein in
entering into and extending credit under the Credit Agreement on or after the
date hereof. This Joinder shall not be modified, amended, or terminated without
the prior written consent of the Agent.
[Name of New Pledgor]
By:__________________________________
Title:
Address:
Dated:_______________________________
309
STOCK PLEDGE AGREEMENT
("Other Shareholders Pledge Agreement")
OTHER SHAREHOLDERS PLEDGE AGREEMENT made as of the 12th day of May,
1999, by and between the pledgors set forth on the signature pages hereto (each
hereinafter referred to as "Pledgor" and collectively referred to as
"Pledgors"), and FIRST UNION NATIONAL BANK, a national banking association as
agent on behalf of the Senior Secured Parties (as defined in the Credit
Agreement referred to below). First Union National Bank in its capacity as agent
hereunder, with its successors and assigns, is hereinafter referred to as
"Agent."
BACKGROUND OF AGREEMENT
On the date hereof certain lenders and issuers of letters of credit and
FIRST UNION NATIONAL BANK as Agent have entered into a Credit Agreement (as
amended, extended, supplemented, restated or otherwise modified or refinanced,
including without limitation any amendment involving an increase in principal,
interest rate or other amount, the "Credit Agreement") with Susquehanna Media
Co. (the "Borrower"), pursuant to which such lenders and issuers agreed to
extend credit to the Borrower upon the terms and conditions specified in the
Credit Agreement under (1) a revolving credit facility with a swing loan
subfacility, and (2) two separate term loan facilities, and to issue, or
participate in the issuance of, certain letters of credit. In addition, the
Credit Agreement currently requires the Borrower under certain conditions to
enter into certain interest rate hedging agreements.
One of the prerequisites to the making of advances by the Lenders (as
defined in the Credit Agreement) under the Credit Agreement and issuing the
letters of credit thereunder is that the Pledgors (which own the capital stock
or other securities of the Borrower and certain Subsidiaries of the Borrower as
specified on Schedule 1) shall have entered into this Other Shareholders Pledge
Agreement and shall have granted to the Agent for the benefit of the Senior
Secured Parties a security interest in and to all of the shares of capital stock
of the Borrower and the Subsidiaries, direct and/or indirect, of the Borrower
owned by Pledgors to secure the Borrower's obligations to the Senior Secured
Parties. This Other Shareholders Pledge Agreement is being executed and
delivered pursuant to Section 4.1.5 of the Credit Agreement.
Each Pledgor acknowledges that the loan made pursuant to the Credit
Agreement will benefit the Borrower and the Subsidiaries of the Borrower in
which such Pledgor has an interest and thereby also benefit such Pledgor. Each
Pledgor also acknowledges that it was and will be Solvent, before and after
giving effect to the transactions contemplated by the Credit Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, and in consideration of the mutual covenants herein contained and other
good and valuable consideration receipt of which is hereby acknowledged, agree
as follows:
310
SECTION 1. DEFINITIONS
Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in, or by reference in, the Credit
Agreement or in the Uniform Commercial Code, as applicable. Each covenant or
representation set forth in this Other Shareholders Pledge Agreement shall be
deemed to be made by each Pledgor as to itself only, and any references to the
"Pledged Securities" or "Collateral" in such covenants or representations shall
be deemed to refer only to the Pledged Securities and Collateral owned or
purportedly owned (in accordance with Schedule 1 hereto, Schedule 9.1 of the
Credit Agreement or otherwise) by the Pledgor making such covenant or
representation. The following terms shall have the following meanings:
"Collateral" shall mean (without duplication):
(i) all Investment Property evidencing ownership
interests in, or related to, the Borrower and/or any Subsidiary of the Borrower
including, without limitation, the shares of capital stock or other securities
listed on Schedule 1 hereto (as the same may be modified from time to time
pursuant to the terms hereof), and any other shares of capital stock of and/or
other securities of and/or ownership interests in the Borrower and/or any
Subsidiary of the Borrower obtained in the future by any Pledgor, and, in each
case, all certificates representing such shares and/or securities and/or
ownership interests and, in each case, all rights, options, warrants, stock,
other securities and ownership interests which may hereafter be received,
receivable or distributed in respect of, or exchanged for, any of the foregoing
(all of the foregoing being referred to herein as the "Pledged Securities");
(ii) all other property which may be delivered to and
held by the Agent pursuant to the terms hereof of any character whatsoever into
which any of the foregoing may be converted or which may be substituted for any
of the foregoing; and
(iii) all Proceeds of the Pledged Securities and of
such other property, including, without limitation, all dividends, cash,
securities or other property at any time and from time to time acquired,
receivable or otherwise distributed in respect of, or in exchange for, any of or
all such Pledged Securities or other property.
"FCC" shall mean the Federal Communications Commission or any
governmental body succeeding to the functions of such commission.
"FCC License" shall mean any radio, microwave, or other
communications license, permit, certificate of compliance, franchise, approval
or authorization granted or issued by the FCC for control, ownership,
acquisition, construction, operation, management or maintenance of domestic
cable television systems, radio broadcasting systems or businesses directly
related thereto.
"Franchise" shall mean a franchise, permit or license
(including, without limitation, an FCC License), designation or certificate
granted by the United States or any other country, territory or state or a city,
town, county or other municipality, PUC or any other regulatory authority
pursuant to which a Person has the right to own, control, acquire, construct,
operate,
-2-
311
manage or maintain a domestic cable television system, radio broadcasting system
or business directly related thereto.
"Lien" shall mean, as to any Person, any mortgage, lien,
pledge, adverse claim, charge, security interest or other encumbrance in or on,
or any interest or title of any vendor, lessor, lender or other secured party to
or of such Person under any conditional sale or other title retention agreement
or capital lease with respect to, any property or asset of such Person.
"Necessary Endorsement" shall mean undated stock powers
endorsed in blank (with signatures properly guaranteed) or other proper
instruments of assignment duly executed and such other instruments or documents
as the Agent may reasonably request.
"Proceeds" shall have the meaning assigned to such term under
the Uniform Commercial Code and, in any event, shall include (i) any and all
proceeds of any guarantee, insurance or indemnity payable to the Pledgor from
time to time with respect to any of the Collateral; (ii) any and all payments
(in any form whatsoever) made or due and payable to the Pledgor from time to
time in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental authority
(or any person acting under color of governmental authority); and (iii) any and
all other amounts from time to time paid or payable with respect to or in
connection with any of the Collateral.
"PUC" shall mean any state or local regulatory agency or body
that exercises jurisdiction over the ownership, construction, operation,
acquisition, management or maintenance of domestic cable television systems,
radio broadcasting systems or businesses directly related thereto.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code, as amended, as is in effect in the Commonwealth of Pennsylvania or in any
applicable state as the case may be.
SECTION 2. CREATION OF SECURITY INTEREST
As security for the payment and performance in full of the
Senior Secured Obligations, each Pledgor hereby hypothecates, pledges, assigns,
sets over and delivers unto the Agent, and grants to the Agent, for the equal
(in priority) and ratable benefit of the Senior Secured Parties, a continuing
first priority security interest in all its right, title and interest in, to and
under the Collateral, TO HAVE AND TO HOLD the Collateral, together with all
right, title, interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Agent, forever; subject, however, to the terms,
covenants and conditions hereinafter set forth.
SECTION 3. NON-RECOURSE GUARANTY
Each Pledgor hereby irrevocably and unconditionally guaranties
to the Agent the full and timely payment and performance of the Senior Secured
Obligations, it being each Pledgor's intent that the guaranty set forth in this
Section 3 shall be a guaranty of payment and not a guaranty of collection. The
guaranty hereunder is a primary and original obligation of each Pledgor and is
an
-3-
312
absolute, unconditional guaranty of payment and performance which is irrevocable
and, to the extent allowed by applicable law, shall remain in full force and
effect without respect to future changes in conditions. No Pledgor shall have a
right of subrogation, reimbursement or indemnity whatsoever or right of recourse
to or with respect to any assets or property of the Borrower or to any
Collateral. Each Pledgor's liability under this Other Shareholder Pledge
Agreement, and the rights and remedies of Agent hereunder, shall be immediate
and shall not be contingent upon the exercise or enforcement by Agent of
whatever remedies it may have against the Borrower or others or the enforcement
of any lien or the realization upon any security that Agent may at any time
possess.
Notwithstanding the foregoing paragraph, the recourse of Agent
in respect of the guaranty of each Pledgor set forth in this Section 3 is
limited to such Pledgor's interest in the Collateral. However, this paragraph
shall not limit Agent's rights against any Pledgor as a result of any breach by
such Pledgor of any representation, warranty or covenant of such Pledgor set
forth in this Other Shareholder Pledge Agreement.
SECTION 4. DELIVERY OF COLLATERAL
4.1 At Time of Execution of Agreement. Contemporaneously with the
execution of this Other Shareholder Pledge Agreement or, in any event, prior to
the Closing Date, each Pledgor shall deliver or cause to be delivered to the
Agent (i) any and all certificates and other instruments evidencing the Pledged
Securities, (ii) any and all other certificates or other instruments or
documents representing any of the Collateral and (iii) all other property
comprising part of the Collateral, in each case along with the Necessary
Endorsements.
4.2 Subsequent Delivery of Collateral. If a Pledgor shall become
entitled to receive or shall receive any securities or other property
(including, without limitation, shares of Pledged Securities acquired after the
Closing Date, or any options, warrants, rights or other similar property or
certificates representing a stock dividend, or any distribution in connection
with any recapitalization, reclassification or increase or reduction of capital,
or issued in connection with any reorganization of the Borrower or any
Subsidiary, but excluding dividends permitted to be retained under Section 6) in
respect of the Pledged Securities (whether as an addition to, in substitution
of, or in exchange for, such Pledged Securities or otherwise), each Pledgor
agrees:
(i) to accept the same as the agent of the Agent,
(ii) to hold the same in trust on behalf of and for the
benefit of the Agent, and
(iii) to deliver any and all certificates or instruments
evidencing the same to the Agent on or before the close of business on the
seventh (7th) Business Day following the receipt thereof by such Pledgor, in the
exact form received together with the Necessary Endorsements, to be held by the
Agent subject to the terms of this Other Shareholder Pledge Agreement, as
additional Collateral.
-4-
313
SECTION 5. REPRESENTATIONS AND WARRANTIES OF PLEDGOR
5.1 Representations and Warranties. Each Pledgor, as to itself only,
represents and warrants as follows:
(i) The address set forth below such Pledgor's name on the
signature pages hereto is the place where such Pledgor resides or, in the case
of an entity other than an individual, its principal place of business is
located.
(ii) All the Pledged Securities are validly issued, fully paid
and nonassessable, and are owned by such Pledgor beneficially and of record free
and clear of any Lien, except for the Liens created pursuant to this Other
Shareholder Pledge Agreement. The execution and delivery by such Pledgor of this
Other Shareholder Pledge Agreement and the delivery of the Collateral to the
Agent simultaneously therewith has created a valid and perfected first priority
security interest in the Collateral in favor of the Agent, for the equal (in
priority) and ratable benefit of the Senior Secured Parties, to secure payment
of the Senior Secured Obligations.
(iii) Such Pledgor has the power to execute, deliver and carry
out the terms and provisions of this Other Shareholders Pledge Agreement. This
Other Shareholder Pledge Agreement constitutes the authorized, valid and legally
binding obligation of such Pledgor enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether such enforcement is sought in a court of law or at equity).
(iv) The execution and delivery of this Other Shareholder
Pledge Agreement, the consummation of the transactions contemplated hereby and
compliance with the terms and provisions hereof, will not (x) violate any
provision of law or any injunction or any applicable regulation, order, writ,
judgment or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality, or (y) conflict or be inconsistent with, or
result in any breach of, any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to impose) any Lien, other than the Liens created hereby,
upon any of the Collateral pursuant to the terms of, any agreement, indenture,
franchise, license, permit, mortgage or deed of trust to which such Pledgor is a
party or by which such Pledgor is bound, or to which such Pledgor is subject, or
(z) violate any organizational documents, if any, of such Pledgor.
(v) No consent, approval or authorization of any Person, or
recording, filing, registration, notice or other similar action with or to any
Person, is required in order to insure the legality, validity, binding effect or
enforceability of this Other Shareholders Pledge Agreement, except such filings
as may be required as contemplated by Section 7.30 of the Credit Agreement.
(vi) The shares of stock and securities of the Borrower or the
Subsidiaries of the Borrower included in the Collateral are not subject to any
charter, bylaw,
-5-
314
statutory, contractual or other restriction governing their issuance, transfer,
ownership or control which restriction would limit the effectiveness or
enforceability of the pledge and security interest created under this Other
Shareholder Pledge Agreement, except to the extent that regulatory
considerations reflected in Section 12 hereof may affect the enforceability of
certain rights and remedies of the Agent and the Senior Secured Parties
hereunder.
5.2 Survival of Representations and Warranties. All the foregoing
representations and warranties shall survive the execution and delivery of this
Other Shareholders Pledge Agreement and shall continue until this Other
Shareholders Pledge Agreement is terminated as provided herein and shall not be
affected or waived by any inspection or examination made by or on behalf of
Agent or any Secured Party.
SECTION 6. VOTING; DIVIDENDS
6.1 Rights Prior To Default. Other than during the existence of an
Event of Default,
(i) Each Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Pledged Securities or any part
thereof for any purpose not inconsistent with the terms of the Loan Documents.
(ii) Subject to and limited by the restrictions on dividends and
other payments in respect of the Collateral set forth in the Loan Documents,
each Pledgor shall be entitled to receive and retain any and all dividends and
other payments paid in respect of the Collateral, provided, however, that any
and all
(a) dividends or other payments paid or payable other than in
cash in respect of, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any Collateral,
(b) dividends and other distributions paid or payable in cash
in respect of any Collateral in connection with a partial or total liquidation
or dissolution or in connection with a reduction of capital, capital surplus or
paid-in-surplus, and
(c) except as otherwise provided in the Credit Agreement, cash
paid, payable or otherwise distributed in redemption of or exchange for, any
Collateral,
shall forthwith be delivered to the Agent to hold as Collateral and shall, if
received by a Pledgor, be received in trust for the benefit of the Agent, be
segregated from the other property or funds of such Pledgor, and be forthwith
delivered to the Agent as Collateral in the same form as so received (with any
Necessary Endorsement).
(iii) The Agent shall execute and deliver to each Pledgor all such
proxies and other instruments as such Pledgor may reasonably request for the
purpose of enabling such Pledgor to exercise the voting and other rights which
it is entitled to exercise pursuant to paragraph (i) above and to receive the
dividends or interest payments which it is authorized to receive and retain
pursuant to paragraph (ii) above.
-6-
315
6.2 Rights After a Default. Upon the occurrence and during the
continuation of an Event of Default and as more fully set forth in Section 11
below,
(i) Subject to Section 12 below, all rights of each Pledgor to
exercise the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant to subsection 6.1 above and to receive the
dividends and payments which it would otherwise be authorized to receive and
retain pursuant to subsection 6.1 above shall cease, and all such rights shall
thereupon become vested in the Agent who shall have the sole right to exercise
such voting and other consensual rights and to receive and hold as Collateral
such dividends and payments.
(ii) All dividends and other payments which are received by a
Pledgor contrary to the provisions of paragraph (i) of this subsection 6.2 shall
be received in trust for the benefit of the Agent, shall be segregated from
other funds of such Pledgor and shall forthwith be paid over to the Agent as
Collateral in the same form as so received (with any Necessary Endorsement).
SECTION 7. COVENANTS OF PLEDGOR
Each Pledgor covenants as to itself only that until this Other
Shareholders Pledge Agreement is terminated in accordance with the terms hereof:
(i) Such Pledgor shall not transfer, sell, encumber or otherwise
dispose of any of the Collateral, except in connection with a sale permitted
under the provisions of the Credit Agreement providing for dispositions to third
parties free of Liens, and shall not create, assume or suffer to exist any Lien
in or on any of the Collateral, except the Liens created hereunder.
(ii) To the extent permitted by applicable law, such Pledgor hereby
waives any rights which it otherwise may have under Section 9-112 of the Uniform
Commercial Code as in effect in the Commonwealth of Pennsylvania.
(iii) If there are any UCC financing statements filed in favor of
the Agent on the Collateral and if such Pledgor shall change the location of its
residence or principal office, as the case may be, or its name, or conduct
business under any other name, such as to make the information on the financing
statement untrue or misleading, then such Pledgor shall take such action as is
necessary to correct the information contained thereon so that the filings shall
be true, correct and complete.
SECTION 8. FURTHER ASSURANCES
Each Pledgor agrees that at any time and from time to time, at the
expense of the Borrower and its Subsidiaries, such Pledgor will promptly execute
and deliver all further instruments and documents, and take all further action,
that may be necessary or desirable, or that the Agent may request, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Agent to exercise and enforce its rights and remedies
hereunder
-7-
316
with respect to any Collateral including, without limitation, using
its best efforts to cooperate in obtaining any FCC, PUC, or other governmental
approval of any action or transaction contemplated hereby or thereby.
SECTION 9. AGENT APPOINTED ATTORNEY-IN-FACT; MAY PERFORM CERTAIN DUTIES
9.1 Appointment as Attorney-in-fact. Effective upon the occurrence of
an Event of Default, and so long as Agent reasonably believes such Event of
Default is continuing, each Pledgor hereby appoints the Agent as its true and
lawful agent, proxy, and attorney-in-fact for the purpose of carrying out this
Other Shareholders Pledge Agreement and taking any action and executing any
instrument which the Agent may deem necessary or advisable to accomplish the
purposes hereof including, without limitation, the execution on behalf of such
Pledgor of any financing or continuation statement with respect to the security
interest created hereby and the endorsement of any drafts or orders which may be
payable to such Pledgor in respect of, arising out of, or relating to any or all
of the Collateral. This power shall be valid until the termination of the
security interests created hereunder, any limitation under law as to the length
or validity of a proxy to the contrary notwithstanding. This appointment is
irrevocable and coupled with an interest and any proxies heretofore given by a
Pledgor to any other Person are revoked. The designation set forth herein shall
be deemed to amend and supersede any inconsistent provision in the articles of
incorporation, bylaws or other documents to which the Borrower or any Subsidiary
of the Borrower in which each Pledgor holds capital stock is subject or to which
any is a party.
9.2 Registration of Securities. Each Pledgor shall cause the Borrower
and each Subsidiary of Borrower in which such Pledgor holds capital stock to,
and the Borrower and such Subsidiary of Borrower shall, register the pledge of
the shares included in the Collateral in the name of the Agent on the books of
such Subsidiary of Borrower. Upon the occurrence of an Event of Default, each
Pledgor shall at the direction of Agent cause the Borrower and each Subsidiary
of Borrower in which such Pledgor holds capital stock to, and the Borrower and
such Subsidiary of the Borrower shall, register the shares included in the
Collateral in the name of the Agent on the books of the Borrower or such
Subsidiary of the Borrower.
9.3 Performance of Pledgor's Duties. In furtherance, and not by way of
limitation, of the foregoing subsections 9.1 and 9.2, if (at any time either
before or after the occurrence of an Event of Default) a Pledgor fails to
perform any agreement contained herein, the Agent may (but under no circumstance
is obligated to) perform such agreement and any expenses incurred shall be
payable by the Borrower and its Subsidiaries provided, however, that nothing
herein shall be deemed to relieve a Pledgor from fulfilling any of its
obligations hereunder.
9.4 Acts May Be Performed By Agents and Employees. Any act of the Agent
to be performed pursuant to this Section 9 or elsewhere in this Other
Shareholder Pledge Agreement may be performed by agents or employees of the
Agent.
-8-
317
SECTION 10. STANDARD OF CARE
10.1 In General. No act or omission of any Secured Party (or agent or
employee thereof) shall give rise to any defense, counterclaim or offset in
favor of a Pledgor or any claim or action against any such Secured Party (or
agent or employee thereof), in the absence of gross negligence or willful
misconduct of such Secured Party as determined in a final, nonappealable
judgment of a court of competent jurisdiction. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which the Agent accords to its own property, it being understood that it
has no duty to take any action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral or to preserve
any rights of any parties and shall only be liable for losses which are a result
of it gross negligence or willful misconduct as determined in a final,
nonappealable judgment of a court of competent jurisdiction.
10.2 Reliance on Advice of Counsel. In taking any action under this
Other Shareholders Pledge Agreement, the Agent shall be entitled to rely upon
the advice of counsel of Agent's choice and shall be fully protected in acting
on such advice whether or not the advice rendered is ultimately determined to
have been accurate.
SECTION 11. DEFAULT
11.1 Certain Rights Upon Default. In addition to any other rights
accorded to the Agent and the Senior Secured Parties hereunder, upon the
occurrence and during the continuation of an Event of Default:
11.1.1 The Agent shall be entitled to receive any cash dividends or
payments on the Collateral and, subject to Section 12 below, to exercise in the
Agent's discretion all voting rights pertaining thereto as more fully set forth
in Section 6 above. Without limiting the generality of the foregoing, subject to
Section 12 below, the Agent shall have the right to exercise all rights with
respect to the Collateral as if it were the sole and absolute owner thereof,
including, without limitation, to vote and/or to exchange, at its sole
discretion, any or all of the Collateral in connection with a merger,
reorganization, consolidation, recapitalization or other readjustment concerning
or involving the Collateral or the Borrower, any Subsidiary of the Borrower or
the Pledgor.
11.1.2 Each Pledgor shall take any action necessary or required or
requested by the Agent in order to allow it fully to enforce the security
interest in the Collateral hereunder and to realize thereon to the fullest
extent possible, including, but not limited to, the filing of any claims with
any court, liquidator, trustee, guardian, receiver or other like person or
party.
11.1.3 The Agent shall have all of the rights of a secured party
under the Uniform Commercial Code of Pennsylvania, as amended, and any other
applicable law including the right to sell on such terms as it may deem
appropriate any or all of the Collateral at one or more public or private sales
upon at least ten (10) Business Days' written notice to applicable
-9-
318
Pledgor of the time and place of any public sale and of the date on which the
Collateral will first be offered for sale in the case of any private sale. Agent
shall have the right to bid thereat or purchase any part or all the Collateral
in its own or a nominee's name (subject to applicable FCC or PUC requirements or
restrictions). The Agent shall have the right to apply the proceeds of the sale,
after deduction for any costs and expenses of sale (including any liabilities
incurred in connection therewith including reasonable attorneys' fees and
allocated costs of attorneys who are employees of the Agent), to the payment of
the Senior Secured Obligations in any manner or order which the Agent, in its
sole discretion, may elect (whether pursuant to the Credit Agreement or
otherwise), to the payment of any other amount required by law (including
without limitation Section 9-504(1)(c) of the Uniform Commercial Code), and to
pay any remaining proceeds to the applicable Pledgor or its respective
successors or assigns or to whomsoever may lawfully be entitled to receive the
same or as a court of competent jurisdiction may direct, without further notice
to or consent of such Pledgor and without regard to any equitable principles of
marshalling or other like equitable doctrines. Each Pledgor hereby acknowledges
and agrees that the notice provided for above is reasonable and expressly waives
any rights it may have of equity of redemption, stay or appraisal with respect
to the Collateral.
11.1.4 For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof; the Agent
shall be free to carry out such sale pursuant to such agreement, and no Pledgor
shall be entitled to the return of the Collateral or any portion thereof,
notwithstanding the fact that after Agent shall have entered into such an
agreement, any and all Defaults shall have been remedied and the Senior Secured
Obligations paid in full.
11.1.5 The Agent shall have the right, with full power of
substitution either in the Agent's name or the name of a Pledgor, to ask for,
demand, xxx, collect and receive any and all moneys due or to become due under
and by virtue of the Collateral and to settle, compromise, prosecute or defend
any action, claim or proceeding with respect thereto, provided, however, that
nothing herein shall be construed as requiring the Agent to take any action,
including, without limitation, requiring or obligating the Agent to make any
inquiry as to the nature or sufficiency of any payment received, or to present
or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby.
11.1.6 The Agent shall be entitled to the appointment of a receiver
or trustee for all or any part of the businesses of the Borrower or of the
Subsidiary of the Borrower in which a Pledgor owns an interest or of a Pledgor,
which receiver shall have such powers as may be conferred by law or the
appointing authority.
11.2 Agent May Exercise Less Than All Rights. Each Pledgor hereby
acknowledges and agrees that the Agent is not required to exercise all remedies
and rights available to it equally with respect to all of the Collateral, and
the Agent may select less than all of the Collateral with respect to which the
remedies as determined by the Agent may be exercised. Without limiting the
generality of the foregoing, the Agent may exercise certain rights with respect
to the Collateral of one Pledgor, but not another Pledgor.
-10-
319
11.3 Duties of the Borrower and Subsidiary of the Borrower With Respect
to Transferee. In the event that, upon an occurrence of an Event of Default, the
Agent shall sell all or any of the Collateral to another party or parties
(herein called "Transferee") or shall purchase or retain all or any of the
Collateral, the Borrower and each Subsidiary of the Borrower shall:
(i) Deliver to the Agent or Transferee, as the case may be, the
articles of incorporation, bylaws, minute books, stock certificate books,
corporate seals, deeds, leases, indentures, agreements, evidences of
indebtedness, books of account, financial records and all other documents and
records of the Borrower and the Subsidiary of the Borrower in which Pledgor has
an interest;
(ii) Use its best efforts to obtain resignations of the persons
then serving as officers and directors of the Borrower and Subsidiaries of the
Borrower in which Pledgor has an interest, if so requested; and
(iii) Use its best efforts to obtain any approvals that are
required by any governmental or regulatory body in order to permit the sale of
the Collateral to the Transferee or the purchase or retention of the Collateral
by the Agent and allow the Transferee or the Agent to continue the business of
the issuer.
SECTION 12. ACKNOWLEDGEMENT OF REGULATORY CONSIDERATIONS; UNIQUE NATURE
OF ASSETS.
12.1 FCC/PUC Approval. It is hereby acknowledged that transfer of
certain Collateral and the exercise of certain other remedies provided herein
may constitute a transfer of an FCC License or other Franchise or a sale or
transfer of control of a holder of an FCC License or other Franchise, requiring
approval of the FCC or PUC, pursuant to rules and regulations of the FCC or PUC.
Notwithstanding anything to the contrary contained in this Agreement, the Agent
will not knowingly take any action pursuant to this Agreement which would
constitute or result in an assignment of an FCC License or other Franchise or
any transfer of control of the holder of an FCC License or other Franchise if
such assignment of license or transfer of control would require under then
existing law (including the written rules and regulations promulgated by the FCC
or any PUC), the prior approval of the FCC or such PUC, without first obtaining
such approval. In connection with this provision, the Agent shall be entitled to
rely upon the advice of counsel of Agent's choice whether or not the advice
rendered is ultimately determined to have been accurate.
12.2 Pledgor/Borrower and Subsidiary of the Borrower Assistance in
Obtaining Approval. Without limiting the generality of Section 8 above, if
counsel to the Agent reasonably determines that the consent of the FCC or PUC is
required in connection with any of the actions hereunder or under any other Loan
Document, then each Pledgor (at the cost and expense of the Borrower and its
Subsidiaries) agrees to cooperate fully with the Agent in any action to secure
such consent. the Borrower and Subsidiaries of the Borrower agree to do the same
and shall use their best efforts to secure such consent. Without limiting the
generality of the foregoing, each Pledgor and the Borrower and its Subsidiaries
shall promptly execute and file and/or cause the execution and filing of all
applications, certificates, instruments, and other documents and papers
-11-
320
that the Agent deems necessary or advisable to file in order to obtain any
necessary governmental consent, approval, or authorization, and if the Borrower,
any Subsidiary of the Borrower or a Pledgor fails or refuses to execute (or
fails or refuses to cause another Person to execute) such documents, the Agent
or the clerk of any court of competent jurisdiction may execute and file the
same on behalf of the Borrower, any Subsidiary of the Borrower and such Pledgor
(or any of them) or such other Person.
12.3 Unique Nature of Assets. It is agreed that the FCC Licenses and
other Franchises held by the Borrower and its Subsidiaries are unique assets
which (or the control of which) may have to be transferred in order for the
Agent adequately to realize the value of its security interest. A violation of
the covenants set forth in this Section would result in irreparable harm to the
Agent for which monetary damages are not readily ascertainable. Therefore, in
addition to any other remedy which may be available to the Agent at law or in
equity, they shall have the remedy of specific performance of the provisions of
this Section. To enforce the provisions of this Section, the Agent is authorized
to request the consent or approval of the FCC or PUC to a voluntary or an
involuntary transfer of control of any FCC License or other Franchise or sale or
transfer of control of a holder of an FCC License or other Franchise.
12.4 Selection by Agent of Different Transferee. If, for any reason,
the FCC or PUC does not approve within a reasonable period of time (which period
shall be determined conclusively by the Agent), the initial application for
approval of the transfer of the Collateral, the Agent shall then have the right
to transfer the Collateral to such other Person as the Agent shall select
(subject to the prior approval of the FCC or PUC). With respect to such
subsequent selection, each Pledgor agrees to cooperate fully in the manner set
forth above. Exercise by the Agent of the right to such cooperation shall not be
exhausted by the initial or any subsequent exercise thereof.
SECTION 13. SECURITIES LAW PROVISION
Each Pledgor recognizes that the Agent may be limited in its
ability to effect a sale to the public of all or part of the Collateral by
reason of certain prohibitions in the Securities Act of 1933, as amended, or
other federal or state securities laws (collectively, the "Securities Laws"),
and may be compelled to resort to one or more sales to a restricted group of
purchasers who may be required to agree to acquire the Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. Each Pledgor agrees that sales so made may be at prices and on terms
less favorable than if the Collateral were sold to the public, and that the
Agent has no obligation to delay the sale of any Collateral for the period of
time necessary to register the Collateral for sale to the public under the
Securities Laws. The Borrower, Subsidiaries of the Borrower and each Pledgor
shall cooperate with the Agent in its attempts to satisfy any requirements under
the Securities Laws (including without limitation registration thereunder if
requested by Agent) applicable to the sale of the Collateral by the Agent at the
Borrower's and its Subsidiaries' cost and expense.
-12-
321
SECTION 14. SECURITY INTEREST ABSOLUTE; WAIVERS BY PLEDGOR
14.1 Absolute Nature of Security Interest. All rights of the Agent
hereunder, the grant of the security interest in the Collateral and all
obligations of the each Pledgor hereunder, shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of any of the terms
of the Loan Documents or any other instrument or document relating hereto or
thereto, (ii) any change in the time, manner or place of payment of, increases
in, or in any other term of, all or any of the Senior Secured Obligations, or
any other amendment or waiver of any terms related thereto, (iii) any exchange,
release or nonperfection of any other collateral, or any release or amendment or
waiver of any guaranty, or (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, a Pledgor or any other
Person in respect of the Senior Secured Obligations or in respect of this Other
Shareholders Pledge Agreement or any other Loan Document or any obligations
hereunder or thereunder.
14.2 No Duty To Marshal Assets. The Agent shall have no obligation to
marshal any assets in favor of a Pledgor or any other Person or against or in
payment of any or all of the Senior Secured Obligations.
14.3 Waiver of Right of Subrogation, Etc. Each Pledgor acknowledges
that until all the Senior Secured Obligations shall have been indefeasibly paid
in full, such Pledgor shall have no right (or hereby waives any such right) of
subrogation, reimbursement, or indemnity whatsoever in respect of the Borrower
or any Subsidiary of the Borrower arising out of remedies exercised by the Agent
hereunder.
14.4 Other Waivers. Each Pledgor hereby waives notice of acceptance of
this Other Shareholders Pledge Agreement. Each Pledgor further waives
presentment and demand for payment of any of the Senior Secured Obligations,
protest and notice of dishonor or default with respect to any of the Senior
Secured Obligations, and all other notices to which a Pledgor might otherwise be
entitled, except as otherwise expressly provided in this Other Shareholder
Pledge Agreement or any of the other Loan Documents. Each Pledgor (to the extent
that it may lawfully do so) covenants that it shall not at any time insist upon
or plead, or in any manner claim or take the benefit of, any stay, valuation,
appraisal or redemption now or at any time hereafter in force that, but for this
waiver, might be applicable to any sale made under any judgment, order or decree
based on this Other Shareholders Pledge Agreement or any other Loan Document;
and each Pledgor (to the extent that it may lawfully do so) hereby expressly
waives and relinquishes all benefit of any and all such laws and hereby
covenants that it will not hinder, delay or impede the execution of any power in
this Other Shareholders Pledge Agreement or in any other Loan Document delegated
to the Agent, but that it will suffer and permit the execution of every such
power as though no such law or laws had been made or enacted.
SECTION 15. NON-WAIVER AND NON-EXCLUSIVE REMEDIES
15.1 Non-Exclusive Remedies. No remedy or right herein conferred upon,
or reserved to the Agent is intended to be to the exclusion of any other remedy
or right, but each and every such remedy or right shall be cumulative and shall
be in addition to every other remedy or right given hereunder or under any other
Loan Document or under law.
-13-
322
15.2 Delay and Non-Waiver. No delay or omission by the Agent to
exercise any remedy or right hereunder shall impair any such remedy or right or
shall be construed to be a waiver of any Event of Default, or an acquiescence
therein, nor shall it affect any subsequent Event of Default of the same or of a
different nature.
SECTION 16. CONTINUING SECURITY INTEREST; HEIRS AND ASSIGNS
This Other Shareholder Pledge Agreement shall create a continuing
security interest in the Collateral and shall (i) remain in full force and
effect until terminated pursuant to Section 17 below, (ii) be binding upon each
Pledgor, its heirs, successors and assigns and (iii) inure to the benefit of the
Agent, the other Senior Secured Parties and their respective successors,
transferees and assigns provided, however, that a Pledgor shall not be permitted
to transfer any of its obligations hereunder.
SECTION 17. TERMINATION OF AGREEMENT; RELEASE OF COLLATERAL
17.1 Termination of Agreement. At such time as (a) the Senior
Secured Parties have no obligation to make further loans and other extensions of
credit to the Borrower under the Credit Agreement, and (b) all the Senior
Secured Obligations have been indefeasibly paid and/or performed in full, this
Other Shareholder Pledge Agreement shall terminate and the Collateral shall be
released pursuant to subsection 17.2, provided that if at the time of the
payment in full of the Senior Secured Obligations (i) such payment and
performance is not subject to any filed or threatened claim, contest, voidance
or offset of any kind whatsoever, (ii) the chief financial officer of the
Borrower so certifies in writing to Agent and (iii) the Borrower supplies to
Agent such valuations, information, evidence, certifications and opinions as
Agent may request in connection therewith, this Other Shareholder Pledge
Agreement shall terminate upon satisfaction of the conditions in clauses (a) and
(b) above without giving effect to the requirement that the payment in full be
indefeasible.
17.2 Duties of Agent With Respect To Release of Collateral. When
this Agreement terminates pursuant to subsection 17.1 above, the Agent shall
reassign and deliver to each Pledgor, or to such Person as such Pledgor shall
designate, against receipt, such of the Collateral (if any) as shall not have
been sold or otherwise applied by the Agent pursuant to the terms hereof and
shall still be held by it hereunder, together with appropriate instruments of
reassignment and release, all without any recourse to, or warranty whatsoever
by, the Agent, at the sole cost and expense of the Borrower.
17.3 Release of Certain Collateral. Effective upon the closing of a
sale of any Collateral in conformity with the provisions of the Credit Agreement
providing for dispositions to third parties free of Liens, and receipt by the
Agent of a certification to such effect from the chief financial officer of the
Borrower, then the security interest in the assets which are the subject of the
sale (the "Sold Collateral") shall terminate. The Agent shall thereupon reassign
and deliver to the applicable Pledgor, or to such Person as such Pledgor shall
designate, against receipt, the Sold Collateral, together with appropriate
instruments of reassignment and release,
-14-
323
all without any recourse to, or warranty whatsoever by, the Agent, at the sale
cost and expense of the Borrower and its Subsidiaries.
SECTION 18. MISCELLANEOUS PROVISIONS
18.1 Notices. All notices, requests, demands, directions and other
communications (collectively "notices") given or made upon any party under the
provisions of this Other Shareholders Pledge Agreement shall be by telephone or
in writing (including facsimile communication) unless otherwise expressly
provided under this Other Shareholders Pledge Agreement and if in writing, shall
be delivered or sent by facsimile to the respective parties at the addresses and
numbers set forth under their respective names on the signature pages to this
Other Shareholders Pledge Agreement or in accordance with any subsequent
unrevoked written direction from any party to the others. All notices shall,
except as otherwise expressly provided in this Other Shareholders Pledge
Agreement, be effective (a) in the case of facsimile, when received, (b) in case
of hand-delivered notice, when hand delivered, (c) in the case of telephone,
when telephoned, provided, however, that in order to be effective, telephonic
notices must be confirmed in writing no later than the next day by letter,
facsimile or telex, (d) if given by mail, four (4) days after such communication
is deposited in the mails with first class postage prepaid, return receipt
requested, and (e) if given by any other means (including air courier), when
delivered; provided, that notices to the Agent shall not be effective until
received. In the event of a discrepancy between any telephonic or written
notice, the written notice shall control.
18.2 Entire Agreement. This Other Shareholders Pledge Agreement
sets forth all of the promises, covenants, agreements, conditions and
understandings among the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings, inducements or
conditions, express or implied, oral or written, with respect thereto, except as
contained or referred to herein.
18.3 Amendments. The terms of this Other Shareholders Pledge
Agreement may be amended, terminated, modified, supplemented or waived only upon
the written consent of the Agent and the Pledgor. The rights of the Agent to so
change, modify, waive, discharge or terminate any provision hereof is subject to
the terms of Section 12.5 of the Credit Agreement, it being understood, however,
that the Pledgors are not third party beneficiaries of Section 12.5 of the
Credit Agreement.
18.4 Governing Law. This Other Shareholders Pledge Agreement and
the rights and obligations of the parties hereunder shall be construed and
enforced in accordance with and shall be governed by the laws of the
Commonwealth of Pennsylvania.
18.5 Arbitration; Consent to Jurisdiction, Service and Venue;
Waiver of Jury Trial.
18.5.1 Arbitration.
(i) Upon demand of any party hereto, whether made before or
after institution of any judicial proceeding, any claim or controversy arising
out of, or relating to, the
-15-
324
Loan Documents between any or all of the parties hereto (a "Dispute") shall be
resolved by binding arbitration conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act. Disputes
may include, without limitation, tort claims, counterclaims, a dispute as to
whether a matter is subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A judgment upon the award
may be entered in any court having jurisdiction. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or related to
Interest Rate Protection Agreements.
(ii) All arbitration hearings shall be conducted in the City
of Philadelphia, Commonwealth of Pennsylvania unless otherwise agreed by all
parties to such arbitration. A hearing shall begin within 90 days of demand for
arbitration and all hearings shall conclude within 120 days of demand for
arbitration. These time limitations may not be extended unless a party shows
cause for extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
the AAA. The parties do not waive applicable Federal or state substantive law
except as provided herein.
(iii) Notwithstanding the preceding binding arbitration
provisions, the parties agree to preserve, without diminution, certain remedies
that any party may exercise before or after an arbitration proceeding is
brought. The parties shall have the right to proceed in any court of proper
jurisdiction or by self-help to exercise or prosecute the following remedies, as
applicable: (a) all rights to foreclose against any real or personal property or
other security by exercising a power of sale or under applicable law by judicial
foreclosure including a proceeding to confirm the sales; (b) all rights of
self-help including peaceful occupation of real property and collection of
rents, set-off, and peaceful possession of personal property; and (c) obtaining
provisional or ancillary remedies including injunctive relief, sequestration,
garnishment, attachment, appointment of receiver and filing of involuntary
bankruptcy proceedings. Any claim or controversy with regard to any party's
entitlement to such remedies is a Dispute.
(iv) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A REMEDY OF
SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER PARTIES IN
ANY DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TO SPECIAL, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN THE FUTURE IN
CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS RESOLVED BY ARBITRATION OR
JUDICIALLY.
18.5.2 Consent to Jurisdiction, Service and Venue; Waiver of
Jury Trial.
(i) With respect to any matters that may be heard before a
court of competent jurisdiction under paragraph (iii) of the preceding
Subsection 18.5.1, each of the Pledgors hereby consents to the jurisdiction and
venue of the courts of the Commonwealth of Pennsylvania or of any federal court
located in such state, waives personal service of any and all process upon it
and consents that all such service of process be made by certified or registered
mail directed to such Pledgor at the address provided for in Section 18.1 above
and service so made shall be deemed to be completed upon actual receipt. Each of
the Pledgors hereby waives
-16-
325
the right to contest the jurisdiction and venue of the courts located in the
County of Philadelphia, Commonwealth of Pennsylvania on the ground of
inconvenience or otherwise and, further, waives any right to bring any action or
proceeding against (a) the Agent in any court outside the County of
Philadelphia, Commonwealth of Pennsylvania, or (b) any other Senior Secured
Party other than in a state within the United States designated by such Senior
Secured Party. The provisions of this Section 18.5 shall not limit or otherwise
affect the right of the Agent or any Senior Secured Party to institute and
conduct an action in any other appropriate manner, jurisdiction or court.
(ii) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE, SUCCESSOR,
HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY TRIAL IN ANY
PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR ANY OTHER LOAN
DOCUMENT OR ANY GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE RELATIONSHIP
BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE AGENT NOR ANY SENIOR
SECURED PARTY NOR ANY PLEDGOR NOR ANY OTHER PERSON WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED.
(iii) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH (iv) OF THE
PRECEDING SUBSECTION 18.5.1 EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS
AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY ARBITRATION
OR OTHER LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES
OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS
AGREEMENT (i) CERTIFIES THAT NEITHER THE AGENT NOR ANY REPRESENTATIVE, OR
ATTORNEY OF THE AGENT NOR ANY SENIOR SECURED PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE AGENT OR SUCH SENIOR SECURED PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
18.5. THE PROVISIONS OF THIS SECTION 18.5 HAVE BEEN FULLY DISCLOSED TO THE
PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN
ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF
THIS SECTION 18.5 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
18.6 Severability. If any of the provisions or terms of this Other
Shareholders Pledge Agreement shall for any reason be held to be invalid or
unenforceable such invalidity or unenforceability shall not affect any of the
other terms hereof, but this Other Shareholders Pledge Agreement shall be
construed as if such invalid or unenforceable term had never been contained
herein. Any such invalidity or unenforceability in a particular jurisdiction
shall not be deemed to render a provision invalid or unenforceable in any other
jurisdiction.
-17-
326
18.7 Counterparts. This Other Shareholders Pledge Agreement may be
executed in one or more counterparts, each of which shall constitute an original
agreement, but all of which together shall constitute one and the same
instrument. A photocopied or facsimile copy of any signature page to this Other
Shareholders Pledge Agreement shall be deemed to be the functional equivalent of
a manually executed copy for all purposes.
-18-
327
IN WITNESS WHEREOF, the parties have caused this Other
Shareholders Pledge Agreement to be duly executed and delivered by their
respective authorized officers on the date first above written.
PLEDGORS:
------------------------------------
Xxxxxx X. Xxxxxx
Address: RFD #1, Xxx 00
Xxxxx Xxxxxxxxx, XX 00000
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
of Xxxxx X. Xxxxxx Revocable Trust
U/D/T 12/17/87
Address: RFD #0, Xxx 00
Xxxxx Xxxxxxxxx, XX 00000
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
U/D/T 12/31/80
Address: RFD #0, Xxx 00
Xxxxx Xxxxxxxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
328
------------------------------------
Xxxxx X. Xxxxxx, Trustee of
Xxxxx X. Xxxxxx Revocable Trust
U/D/T 12/17/87
Address: RFD #0, Xxx 00
Xxxxx Xxxxxxxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
329
------------------------------------
Xxxxx X. X. Xxxxxx, trustee
U/D/T 6/18/80
Address:
------------------------------------
Xxxxx X. X. Xxxxxx, Trustee
of Xxxxxx X. Xxxxxx Revocable Trust
U/D/T 3/21/88
Address:
Signature Page to Other Shareholders Pledge Agreement
330
------------------------------------
Xxxxx X. Xxxxxx, Xx.
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
------------------------------------
Xxxxx X. Xxxxxx, Xx., Trustee
of Xxxxx X. Xxxxxx, Xx.,
Revocable Trust
U/D/T 1/29/88
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
331
------------------------------------
Xxxxx X. Xxxxxx, III
Address: 0000 Xxx Xxxxxxx Xxxxxxx
Xxxxx, XX 00000
------------------------------------
Xxxxx X. Xxxxxx, III, Trustee
U/D/T 12/31/79 f.b.o.
Xxxxx X. Xxxxxx, III
Address: 0000 Xxx Xxxxxxx Xxxxxxx
Xxxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
332
------------------------------------
Xxxxx X. Xxxxxx, XX
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
------------------------------------
Xxxxx X. Xxxxxx, XX, Trustee
U/D/T 12/31/79 f.b.o.
Xxxxx X. Xxxxxx, XX
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
333
------------------------------------
Xxxxxxx X. Xxxxxx
Address: 000 X. Xxxxxxxx Xxxxxx
Xxxx, XX 00000
------------------------------------
Xxxxxxx X. Xxxxxx, trustee
U/D/T 12/31/79 f.b.o.
Xxxxxxx X. Xxxxxx
Address: 000 X. Xxxxxxxx Xxxxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
334
------------------------------------
Xxxxxxxxx X. Xxxxxx, Trustee of
Xxxxx X. Xxxxxx, Xx. Revocable Trust
U/D/T 1/29/88
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
335
------------------------------------
Xxxxxx X. Xxxxxx, Trustee of
Xxxxxx X. Xxxxxx Revocable Trust
U/D/T 3/21/88
Address:
Signature Page to Other Shareholders Pledge Agreement
336
------------------------------------
Xxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
337
------------------------------------
Xxxxx Xxxxxx Xxxx,
a/k/a Xxxxx X. Xxxxxx, XX
Address: 000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
338
------------------------------------
Xxxxxx X. Xxxxxx (Xxxxx)
Address: XX 0, Xxx 000
Xxxxx Xxxxxxxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
339
------------------------------------
Xxxxx X. Xxxxxx
Address: RFD #1, Xxx 00
Xxxxx Xxxxxxxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
340
------------------------------------
Xxxxx Xxxxxx-Xxxxxx,
Trustee of Harrier Trust
U/D/T 3/21/88
Address: Xxxxxx Academy
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
341
------------------------------------
Xxxxx X. Xxxxxxxxx,
Trustee of Harrier Trust
U/D/T 3/21/88
Address: 000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
342
------------------------------------
Charity X. Xxxxxx (Xxxxxxxx)
Trustee of Harrier
Trust U/D/T 3/21/88
Address: Xxxxx 0, Xxx 00
Xxxxxxxxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
343
------------------------------------
Xxxxxxx X. Xxxxxxx, trustee
U/D/T 12/31/79 f.b.o.
Xxxxx X. Xxxxxx, III
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
------------------------------------
Xxxxxxx X. Xxxxxxx, trustee
U/D/T 12/31/79 f.b.o.
Xxxxx X. Xxxxxx, XX
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
------------------------------------
Xxxxxxx X. Xxxxxxx, trustee
U/D/T 12/31/79 f.b.o.
Xxxxxxx X. Xxxxxx
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Pledge Agreement
344
AGENT: FIRST UNION NATIONAL BANK, in its
capacity as Agent
By:
---------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
Notice Information
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx,
Senior Vice President
Signature Page to Other Shareholders Pledge Agreement
345
JOINDER
The undersigned acknowledge the Other Shareholders Pledge
Agreement to which this Joinder is attached, and hereby jointly and severally
agree to be bound by the foregoing Other Shareholders Pledge Agreement and to
perform the covenants contained therein required to be performed by each.
SUSQUEHANNA MEDIA CO.
SUSQUEHANNA CABLE CO.
SUSQUEHANNA CABLE INVESTMENT CO.
CABLE TV OF EAST PROVIDENCE, INC.
CASCO CABLE TELEVISION, INC.
CASCO CABLE TELEVISION OF BATH, MAINE
SBC CABLE CO.
YORK CABLE TELEVISION, INC.
SUSQUEHANNA RADIO CORP.
RADIO CINCINNATI, INC.
RADIO INDIANAPOLIS, INC.
RADIO METROPLEX, INC.
KPLX LICO, INC.
KPLX RADIO, INC,
KLIF BROADCASTING, INC.
XXXX XXXX, INC.
KLIF RADIO, INC.
RADIO SAN FRANCISCO, INC.
Signature Page to Other Shareholders Pledge Agreement
346
KFFG LICO, INC.
KRBE CO.
KRBE LICO, INC.
KNBR INC.
KNBR LICO, INC.
BAY AREA RADIO CORP.
WSBA LICO, INC.
WVAE LICO, INC.
WNNX LICO, INC.
INDIANAPOLIS RADIO LICENSE CO.
TEXAS STAR RADIO, INC.
SUSQUEHANNA FIBER SYSTEMS, INC.
SUSQUEHANNA DATA SERVICES, INC.
MEDIA PCS VENTURES, INC.
INDY LICO, INC.
WRRM LICO, INC.
WFMS LICO, INC.
By:
-------------------------------------------
Xxxx X. Xxxxxxx, on behalf of each of the
foregoing as Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esquire
347
PARAGON RESEARCH LIMITED PARTNERSHIP,*
by Susquehanna Radio Corp.,
its General Partner
KPLX LIMITED PARTNERSHIP, by KPLX Radio,
Inc., its General Partner
KLIF BROADCASTING LIMITED PARTNERSHIP,
by KLIF Radio, Inc., its General Partner
By:
----------------------------------------
Xxxx X. Xxxxxxx on behalf of each of the
foregoing as Treasurer of the
General Partner
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esquire
*Subject to unwaived restrictions on transfer in partnership agreement.
348
SCHEDULE 1
TO OTHER SHAREHOLDER PLEDGE AGREEMENT
Shares of Capital Stock of
the Borrower and/or Subsidiaries of the
Borrower Owned by Each Pledgor
SHARES OWNED BY XXXXX X. XXXXXX, XX.
5,000 shares of common stock of Bay Area Radio Corp.
SHARES OWNED BY TRUSTEES OF REVOCABLE TRUST DATED 1/29/88 IN FAVOR OF
XXXXX X. XXXXXX, XX.
14 shares of common stock of Radio Cincinnati, Inc.
250 shares of common stock of Radio Indianapolis, Inc.
70 shares of common stock of Radio Metroplex Inc.
400 shares of common stock of Radio San Francisco, Inc.
5,095.98 shares of preferred stock of Susquehanna Media Co.
SHARES OWNED BY XXXXX X. XXXXXX, III
2 shares of common stock of Radio Cincinnati, Inc.
10 shares of common stock of Radio Metroplex, Inc.
150 shares of common stock of Radio San Francisco, Inc.
7,513.71 shares of preferred stock of Susquehanna Media Co.
SHARES OWNED BY XXXXXXX X. XXXXXX
2 shares of common stock of Radio Cincinnati, Inc.
10 shares of common stock of Radio Metroplex, Inc.
150 shares of common stock of Radio San Francisco, Inc.
7,513.71 shares of preferred stock of Susquehanna Media Co.
349
SHARES OWNED BY XXXXX X. X. XXXXXX, TRUSTEE UNDER TRUST DATED 6/18/80
300 shares of common stock of KLIF Broadcasting, Inc.
SHARES OWNED BY XXXXXX X. XXXXXX, TRUSTEE UNDER TRUST DATED 12/31/80
300 shares of common stock of KLIF Broadcasting, Inc.
5000 shares of common stock of Bay Area Radio Corp.
SHARES OWNED BY XXXXXXX X. XXXXXXX AND XXXXX X. XXXXXX, III, TRUSTEES UNDER
TRUST DATED 12/31/79 FOR THE BENEFIT OF XXXXX X. XXXXXX, III
100 shares of common stock of KLIF Broadcasting, Inc.
SHARES OWNED BY XXXXXXX X. XXXXXXX AND XXXXX X. XXXXXX, XX, TRUSTEES UNDER TRUST
DATED 12/31/79 FOR THE BENEFIT OF XXXXX X. XXXXXX, XX
100 shares of common stock of KLIF Broadcasting, Inc.
SHARES OWNED BY XXXXXXX X. XXXXXXX AND XXXXXXX X. XXXXXX, TRUSTEES UNDER TRUST
DATED 12/31/79 FOR THE BENEFIT OF XXXXXXX X. XXXXXX
100 shares of common stock of KLIF Broadcasting, Inc.
SHARES OWNED BY XXXXXX X. XXXXXX AND XXXXX X.X. XXXXXX, TRUSTEES UNDER TRUST
DATED 3/21/88 FOR THE BENEFIT OF XXXXXX X. XXXXXX
850 shares of common stock of Radio San Francisco, Inc.
SHARES OWNED BY XXXXXX X. XXXXXX
283.33 shares of common stock of Radio San Francisco, Inc.
3,086.43 shares of preferred stock of Susquehanna Media Co.
SHARES OWNED BY XXXXX X. XXXXXX
283.33 shares of common stock of Radio San Francisco, Inc.
3,086.43 shares of preferred stock of Susquehanna Media Co.
350
SHARES OWNED BY XXXXX X. XXXXXX-XXXX
283.33 shares of common stock of Radio San Francisco, Inc.
SHARES OWNED BY XXXXX X. XXXXXX-XXXXXX, XXXXX XXXXXXXXX AND XXXXXXX XXXXXX,
TRUSTEES OF HARRIER TRUST UNDER TRUST DATED 3/21/88
5000 shares of common stock of Bay Area Radio Corp.
3,810.08 shares of preferred stock of Susquehanna Media Co.
SHARES OWNED BY XXXXXX X. AND XXXXX X. XXXXXX
8,324.26 shares of preferred stock of Susquehanna Media Co.
SHARES OWNED BY XXXXXX X. XXXXXX
5,109.81 shares of preferred stock of Susquehanna Media Co.
SHARES OWNED BY XXXXX X. XXXXXX AND XXXXXX XXXXXX, TRUSTEES OF XXXXX X. XXXXXX
REVOCABLE TRUST UNDER TRUST DATED 12/17/87
277.48 shares of preferred stock of Susquehanna Media Co.
SHARES OWNED BY XXXXXX X. XXXXXX, TRUSTEE UNDER TRUST DATED 12/31/80
18,373.86 shares of preferred stock of Susquehanna Media Co.
SHARES OWNED BY XXXXX X. XXXXXXXX
793.77 shares of preferred stock of Susquehanna Media Co.
SHARES OWNED BY XXXXX X. XXXXXX, XX
7,513.71 shares of preferred stock of Susquehanna Media Co.
2 shares of common stock of Radio Cincinnati Inc.
10 shares of common stock of Radio Metroplex, Inc.
150 shares of common stock of Radio San Francisco, Inc.
351
STOCK PLEDGE AGREEMENT
("Xxxxxxx Pledge Agreement")
XXXXXXX PLEDGE AGREEMENT made as of the 12th day of May, 1999, by and
between XXXXXXX YORK, INC., a Delaware corporation ("Pledgor"), and FIRST UNION
NATIONAL BANK, a national banking association as agent on behalf of the Senior
Secured Parties (as defined in the Credit Agreement referred to below). First
Union National Bank in its capacity as agent hereunder, with its successors and
assigns, is hereinafter referred to as "Agent."
BACKGROUND OF AGREEMENT
On the date hereof certain lenders and issuers of letters of credit and
FIRST UNION NATIONAL BANK as Agent have entered into a Credit Agreement (as
amended, extended, supplemented, restated or otherwise modified or refinanced,
including without limitation any amendment involving an increase in principal,
interest rate or other amount, the "Credit Agreement") with Susquehanna Media
Co. (the "Borrower"), pursuant to which such lenders and issuers agreed to
extend credit to the Borrower upon the terms and conditions specified in the
Credit Agreement under (1) a revolving credit facility with a swing loan
subfacility, and (2) two separate term loan facilities, and to issue, or
participate in the issuance of, certain letters of credit. In addition, the
Credit Agreement currently requires under certain conditions the Borrower to
enter into certain interest rate hedging agreements.
One of the prerequisites to the making of advances by the Lenders (as
defined in the Credit Agreement) under the Credit Agreement and the issuing of
letters of credit thereunder is that the Pledgor (which owns the capital stock
of certain Subsidiaries, direct or indirect, of the Borrower as specified on
Schedule 1) shall have entered into this Xxxxxxx Pledge Agreement and shall have
granted to the Agent for the benefit of the Senior Secured Parties a security
interest in and to all of the shares of capital stock of the Subsidiaries of the
Borrower owned by Pledgor to secure the Borrower's obligations to the Senior
Secured Parties. This Xxxxxxx Pledge Agreement is being executed and delivered
pursuant to Section 4.1.5 of the Credit Agreement.
Pledgor acknowledges that the loans made pursuant to the Credit
Agreement will benefit the Subsidiaries of the Borrower in which Pledgor has an
interest and thereby also benefit Pledgor. Pledgor also acknowledges that it was
and will be Solvent, before and after giving effect to the transactions
contemplated by the Credit Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, and in consideration of the mutual covenants herein contained and other
good and valuable consideration receipt of which is hereby acknowledged, agree
as follows:
352
SECTION 1. DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in, or by reference in, the Credit Agreement or
in the Uniform Commercial Code, as applicable. The following terms shall have
the following meanings:
"Collateral" shall mean (without duplication):
(i) all Investment Property evidencing ownership interests in,
or related to, the Borrower and/or any Subsidiary of the Borrower, including,
without limitation, the shares of capital stock and other securities owned by
the Pledgor in any of the entities listed on Schedule I hereto (as the same may
be modified from time to time pursuant to the terms hereof), and any other
shares of capital stock of and/or other securities of and/or ownership interests
in the Borrower and/or any Subsidiary of the Borrower obtained in the future by
the Pledgor, and, in each case, all certificates representing such shares and/or
securities and/or ownership interests and, in each case, all rights, options,
warrants, stock, other securities and ownership interests which may hereafter be
received, receivable or distributed in respect of, or exchanged for, any of the
foregoing (all of the foregoing being referred to herein as the "Pledged
Securities");
(ii) all other property which may be delivered to and held by
the Agent pursuant to the terms hereof of any character whatsoever into which
any of the Pledged Securities may be converted or which may be substituted for
any of the foregoing; and
(iii) all Proceeds of the Pledged Securities and of such other
property, including, without limitation, all dividends, cash, securities or
other property at any time and from time to time acquired, receivable or
otherwise distributed in respect of, or in exchange for, any of or all such
Pledged Securities or other property.
"FCC" shall mean the Federal Communications Commission or any
governmental body succeeding to the functions of such commission.
"FCC License" shall mean any radio, microwave, or other
communications license, permit, certificate of compliance, franchise, approval
or authorization granted or issued by the FCC for control, ownership,
acquisition, construction, operation, management or maintenance of domestic
cable television systems, radio broadcasting systems or businesses directly
related thereto.
"Franchise" shall mean a franchise, permit or license
(including, without limitation, an FCC License), designation or certificate
granted by the United States or any other country, territory or state or a city,
town, county or other municipality, PUC or any other regulatory authority
pursuant to which a Person has the right to own, control, acquire, construct,
operate, manage or maintain a domestic cable television system, radio
broadcasting system or business directly related thereto.
"Lien" shall mean, as to any Person, any mortgage, lien,
pledge, adverse claim, charge, security interest or other encumbrance in or on,
or any interest or title of any vendor,
-2-
353
lessor, lender or other secured party to or of such Person under any conditional
sale or other title retention agreement or capital lease with respect to, any
property or asset of such Person.
"Necessary Endorsement" shall mean undated stock powers
endorsed in blank (with signatures property guaranteed) or other proper
instruments of assignment duly executed and such other instruments or documents
as the Agent may reasonably request.
"Proceeds" shall have the meaning assigned to such term under
the Uniform Commercial Code and, in any event, shall include (i) any and all
proceeds of any guarantee, insurance or indemnity payable to the Pledgor from
time to time with respect to any of the Collateral; (ii) any and all payments
(in any form whatsoever) made or due and payable to the Pledgor from time to
time in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental authority
(or any person acting under color of governmental authority); and (iii) any and
all other amounts from time to time paid or payable with respect to or in
connection with any of the Collateral.
"PUC" shall mean any state or local regulatory agency or body
that exercises jurisdiction over the ownership, construction, operation,
acquisition, management or maintenance of domestic cable television systems,
radio broadcasting systems or businesses directly related thereto.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code, as amended, as is in effect in the Commonwealth of Pennsylvania or in any
applicable state as the case may be.
SECTION 2. CREATION OF SECURITY INTEREST
As security for the payment and performance in full of the
Senior Secured Obligations, the Pledgor hereby hypothecates, pledges, assigns,
sets over and delivers unto the Agent, and grants to the Agent, for the equal
(in priority) and ratable benefit of the Senior Secured Parties, a continuing
first priority security interest in all its right, title and interest in, to and
under the Collateral, TO HAVE AND TO HOLD the Collateral, together with all
right, title, interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Agent, forever; subject, however, to the terms,
covenants and conditions hereinafter set forth.
SECTION 3. NON-RECOURSE GUARANTY
The Pledgor hereby irrevocably and unconditionally guaranties
to the Agent the full and timely payment and performance of the Senior Secured
Obligations, it being the Pledgor's intent that the guaranty set forth in this
Section 3 shall be a guaranty of payment and not a guaranty of collection. The
guaranty hereunder is a primary and original obligation of the Pledgor and is an
absolute, unconditional guaranty of payment and performance which is irrevocable
and, to the extent allowed by applicable law, shall remain in full force and
effect without respect to future changes in conditions. The Pledgor shall have
no right of subrogation, reimbursement or indemnity whatsoever and no right of
recourse to or with respect to any assets or property of the Borrower or to any
Collateral. The Pledgors liability under this Xxxxxxx Pledge
-3-
354
Agreement, and the rights and remedies of Agent hereunder, shall be immediate
and shall not be contingent upon the exercise or enforcement by Agent of
whatever remedies it may have against the Borrower or others or the enforcement
of any lien or the realization upon any security that Agent may at any time
possess.
Notwithstanding the foregoing paragraph, the recourse of Agent
in respect of the guaranty of the Pledgor set forth in this Section 3 is limited
to the Pledgor's interest in the Collateral. However, this paragraph shall not
limit Agent's rights against the Pledgor as a result of any breach by the
Pledgor of any representation, warranty or covenant of the Pledgor set forth in
this Xxxxxxx Pledge Agreement.
SECTION 4. DELIVERY OF COLLATERAL
4.1 At Time of Execution of Agreement. Contemporaneously with
the execution of this Xxxxxxx Pledge Agreement or, in any event, prior to the
Closing Date, the Pledgor shall deliver or cause to be delivered to the Agent
(i) any and all certificates and other instruments evidencing the Pledged
Securities, (ii) any and all other certificates or other instruments or
documents representing any of the Collateral and (iii) all other property
comprising part of the Collateral, in each case along with the Necessary
Endorsements.
4.2 Subsequent Delivery of Collateral. If the Pledgor shall
become entitled to receive or shall receive any securities or other property
(including, without limitation, shares of Pledged Securities acquired after the
Closing Date (including, without limitation, stock in York Cable Television,
Inc.), or any options, warrants, rights or other similar property or
certificates representing a stock dividend, or any distribution in connection
with any recapitalization, reclassification or increase or reduction of capital,
or issued in connection with any reorganization of the Borrower or any
Subsidiary, but excluding dividends permitted to be retained under Section 6) in
respect of the Pledged Securities (whether as an addition to, in substitution
of, or in exchange for, such Pledged Securities or otherwise), the Pledgor
agrees:
(i) to accept the same as the agent of the Agent,
(ii) to hold the same in trust on behalf of and for
the benefit of the Agent, and
(iii) to deliver any and all certificates or
instruments evidencing the same to the Agent on or before the close of business
on the seventh (7th) Business Day following the receipt thereof by the Pledgor,
in the exact form received together with the Necessary Endorsements, to be held
by the Agent subject to the terms of this Xxxxxxx Pledge Agreement, as
additional Collateral.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF PLEDGOR
5.1 Representations and Warranties. Pledgor represents and
warrants as follows:
-4-
355
(i) Pledgor is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware. Pledgor
has perpetual corporate existence, and Pledgor has the corporate power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage. Pledgor has not failed to
qualify to do business in any state or jurisdiction where the failure to so
qualify could have a material adverse effect on (a) the ability of Pledgor to
perform its obligations hereunder, (b) the binding nature, validity or
enforceability of this Xxxxxxx Pledge Agreement, or (c) the validity,
perfection, priority or enforceability of the Lien of the Agent for the benefit
of the Senior Secured Parties in the Collateral. The principal place of business
of Pledgor is located at the address set forth on the signature page hereto and
the sole name under which Pledgor conducts business is set forth in the first
paragraph of this Xxxxxxx Pledge Agreement.
(ii) All the Pledged Securities are owned by Pledgor
beneficially and of record free and clear of any Lien, except for the Liens
created pursuant to this Xxxxxxx Pledge Agreement. The execution and delivery by
Pledgor of this Xxxxxxx Pledge Agreement and the delivery of the Collateral to
the Agent simultaneously therewith has created a valid and perfected security
interest in the Collateral in favor of the Agent, for the equal (in priority)
and ratable benefit of the Senior Secured Parties, to secure payment of the
Senior Secured Obligations.
(iii) Pledgor has the corporate power to execute,
deliver and carry out the terms and provisions of this Xxxxxxx Pledge Agreement,
and Pledgor has taken all necessary corporate action (including, without
limitation, any consent of stockholders required by law or by its articles of
incorporation or bylaws or other organizational documents) to authorize the
execution, delivery and performance of this Xxxxxxx Pledge Agreement. This
Xxxxxxx Pledge Agreement constitutes the authorized, valid and legally binding
obligation of Pledgor enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity (regardless of whether such enforcement is
sought in a court of law or at equity).
(iv) The execution and delivery of this Xxxxxxx
Pledge Agreement, the consummation of the transactions contemplated hereby and
compliance with the terms and provisions hereof, will not (x) violate any
provision of law or any injunction or any applicable regulation, order, writ,
judgment or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality applicable to Pledgor, or (y) conflict or be
inconsistent with, or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to impose) any Lien, other than the
Liens created hereby, upon any of the Collateral or assets of Pledgor pursuant
to the terms of, any agreement, indenture, franchise, license, permit, mortgage
or deed of trust to which Pledgor is a party or by which Pledgor is bound, or to
which Pledgor is subject, or (z) violate any of the provisions of the articles
of incorporation, bylaws or other organizational documents of Pledgor.
(v) No consent, approval or authorization of any
Person which has not been obtained, or recording, filing, registration, notice
or other similar action with or to any Person, is required in order to insure
the legality, validity, binding effect or enforceability of this
-5-
356
Xxxxxxx Pledge Agreement, except such filings and may be required as
contemplated by Section 7.30 of the Credit Agreement.
(vi) The shares of stock and securities of the
Subsidiaries of the Borrower included in the Collateral are not, to the
knowledge of Pledgor, subject to any charter, bylaw, statutory, contractual or
other restriction governing their issuance, transfer, ownership or control which
restriction would limit the effectiveness or enforceability of the pledge and
security interest created under this Xxxxxxx Pledge Agreement, except to the
extent that regulatory considerations reflected in Section 12 hereof may affect
the enforceability of certain rights and remedies of the Agent and the Senior
Secured Parties hereunder.
5.2 Survival of Representations and Warranties. All the
foregoing representations and warranties shall survive the execution and
delivery of this Xxxxxxx Pledge Agreement and shall continue until this Xxxxxxx
Pledge Agreement is terminated as provided herein and shall not be affected or
waived by any inspection or examination made by or on behalf of Agent or any
Senior Secured Party.
SECTION 6. VOTING; DIVIDENDS
6.1 Rights Prior To Default. Other than during the existence
of an Event of Default,
(i) Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Securities or any
part thereof for any purpose not inconsistent with the terms of the Loan
Documents.
(ii) Subject to and limited by the restrictions on
dividends and other payments in respect of the Collateral set forth in the Loan
Documents, Pledgor shall be entitled to receive and retain any and all dividends
and other payments paid in respect of the Collateral, provided, however, that
any and all
(a) dividends or other payments paid or
payable other than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, or in exchange for,
any Collateral,
(b) dividends and other distributions paid
or payable in cash in respect of any Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and
(c) cash paid, payable or otherwise
distributed in redemption of or exchange for, any Collateral except in a
transaction permitted by the Credit Agreement,
shall forthwith be delivered to the Agent to hold as Collateral and shall, if
received by Pledgor, be received in trust for the benefit of the Agent, be
segregated from the other property or funds of Pledgor, and be forthwith
delivered to the Agent as Collateral in the same form as so received (with any
Necessary Endorsement).
-6-
357
(iii) The Agent shall execute and deliver to the
Pledgor all such proxies and other instruments as the Pledgor may reasonably
request for the purpose of enabling the Pledgor to exercise the voting and other
rights which it is entitled to exercise pursuant to paragraph (i) above and to
receive the dividends or interest payments which it is authorized to receive and
retain pursuant to paragraph (ii) above.
6.2 Rights After a Default. Upon the occurrence and during the
continuation of an Event of Default and as more fully set forth in Section 11
below,
(i) Subject to Section 12 below, all rights of the
Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to subsection 6.1 above and to
receive the dividends and payments which it would otherwise be authorized to
receive and retain pursuant to subsection 6.1 above shall cease, and all such
rights shall thereupon become vested in the Agent who shall have the sole right
to exercise such voting and other consensual rights and to receive and hold as
Collateral such dividends and payments.
(ii) All dividends and other payments which are
received by the Pledgor contrary to the provisions of paragraph (i) of this
subsection 6.2 shall be received in trust for the benefit of the Agent, shall be
segregated from other funds of the Pledgor and shall forthwith be paid over to
the Agent as Collateral in the same form as so received (with any Necessary
Endorsement).
SECTION 7. COVENANTS OF PLEDGOR
Pledgor covenants that until this Xxxxxxx Pledge Agreement is
terminated in accordance with the terms hereof:
(i) Pledgor shall not transfer, sell, encumber or
otherwise dispose of any of the Collateral, except in connection with a sale
permitted under the provisions of the Credit Agreement providing for
dispositions to third parties free of Liens or to the Borrower and/or one or
more Subsidiaries of the Borrower, and shall not create, assume or suffer to
exist any Lien in or on any of the Collateral, except the Liens created
hereunder, provided that Pledgor may transfer the Collateral to AT&T Corp. if
prior to such transfer (1) such transferee executes and delivers to Agent such
documents as Agent may request so that such transferee becomes bound by this
Xxxxxxx Pledge Agreement as if an original signatory hereto and the transferred
Collateral remains pledged to Agent and (2) such transferee has executed and
delivered to the Company a confirmation that the Company shall be entitled to
programming discounts that are at least as favorable to the Company and its
Subsidiaries as those offered through Xxxxxxx.
(ii) To the extent permitted by applicable law,
Pledgor hereby waives any rights which it otherwise may have under Section 9-112
of the Uniform Commercial Code as in effect in the Commonwealth of Pennsylvania.
(iii) Pledgor shall not change the location of its
principal office or its name referred to in Section 5.1 (i), or conduct business
under any other name, without having
-7-
358
first (a) given to Agent at least thirty (30) days' prior written notice of same
and (b) executed, delivered and filed (and paid or cause to be paid by the
Borrower or any Subsidiary of the Borrower all filing fees and taxes) all such
documents as may be necessary or advisable in the opinion of Agent to continue
to perfect and protect the Liens created hereby.
(iv) Pledgor shall vote the stock and securities
included in the Collateral in a manner consistent with the covenants and
agreements of Pledgor, the Borrower and the Subsidiaries of the Borrower set
forth in the Loan Documents, including, without limitation, restricting the
issuance of additional shares of stock of the Borrower and its Subsidiaries (or
rights or options therefore) except such as is pledged to the Agent pursuant to
the terms of the Loan Documents.
SECTION 8. FURTHER ASSURANCES
The Pledgor agrees that at any time and from time to time, at
the expense of the Borrower and its Subsidiaries, the Pledgor will (and will
require the Borrower and its Subsidiaries to at the expense of the Borrower and
its Subsidiaries) promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Agent may request, in order to perfect and protect any security
interest granted or purported to be granted hereby or to enable the Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral including, without limitation, using its reasonable best efforts to
cooperate in obtaining any FCC, PUC, or other governmental approval of any
action or transaction contemplated hereby or thereby.
SECTION 9. AGENT APPOINTED ATTORNEY-IN-FACT; MAY PERFORM CERTAIN DUTIES
9.1 Appointment as Attorney-in-fact. Effective upon the
occurrence of an Event of Default, and so long as Agent reasonably believes such
Event of Default is continuing, the Pledgor hereby appoints the Agent as its
true and lawful agent, proxy, and attorney-in-fact for the purpose of carrying
out this Xxxxxxx Pledge Agreement and taking any action and executing any
instrument which the Agent may deem necessary or advisable to accomplish the
purposes hereof including, without limitation, the execution on behalf of
Pledgor of any financing or continuation statement with respect to the security
interest created hereby and the endorsement of any drafts or orders which may be
payable to Pledgor in respect of, arising out of, or relating to any or all of
the Collateral. This power shall be valid until the termination of the security
interests created hereunder, any limitation under law as to the length or
validity of a proxy to the contrary notwithstanding. This appointment is
irrevocable and coupled with an interest and any proxies heretofore given by the
Pledgor to any other Person are revoked. The designation set forth herein shall
be deemed to amend and supersede any inconsistent provision in the articles of
incorporation, bylaws or other documents to which Pledgor or any Subsidiary of
the Borrower in which Pledgor holds capital stock is subject or to which any is
a party.
9.2 Registration of Securities. Pledgor shall instruct each
Subsidiary of the Borrower in which Pledgor holds capital stock to, and such
Subsidiary of the Borrower shall, register the pledge of the shares included in
the Collateral in the name of the Agent on the books
-8-
359
of such Subsidiary of the Borrower. Upon the occurrence and during the
continuance of an Event of Default, Pledgor shall at the direction of Agent
instruct each Subsidiary of the Borrower in which Pledgor holds capital stock
to, and such Subsidiary of the Borrower shall, register the shares included in
the Collateral in the name of the Agent on the books of such Subsidiary of the
Borrower.
9.3 Performance of Pledgor's Duties. In furtherance, and not
by way of limitation, of the foregoing subsections 9.1 and 9.2, if (at any time
either before or after the occurrence of an Event of Default) the Pledgor fails
to perform any agreement contained herein, the Agent may (but under no
circumstance is obligated to) perform such agreement and any expenses incurred
shall be payable by the Borrower and its Subsidiaries provided, however, that
nothing herein shall be deemed to relieve the Pledgor from fulfilling any of its
obligations hereunder.
9.4 Acts May Be Performed By Agents and Employees. Any act of
the Agent to be performed pursuant to this Section 9 or elsewhere in this
Xxxxxxx Pledge Agreement may be performed by agents or employees of the Agent.
SECTION 10. STANDARD OF CARE
10.1 In General. No act or omission of any Senior Secured
Party (or agent or employee thereof shall give rise to any defense, counterclaim
or offset in favor of the Pledgor or any claim or action against any such Senior
Secured Party (or agent or employee thereof, in the absence of gross negligence
or willful misconduct of such Senior Secured Party as determined in a final,
nonappealable judgment of a court of competent jurisdiction. The Agent shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Agent accords to its own property, it
being understood that it has no duty to take any action with respect to calls,
conversions or exchanges or to preserve any rights of any parties and shall only
be liable for losses which are a result of it gross negligence or willful
misconduct as determined in a final, nonappealable judgment of a court of
competent jurisdiction.
10.2 Reliance on Advice of Counsel. In taking any action under
this Xxxxxxx Pledge Agreement, the Agent shall be entitled to rely upon the
advice of counsel of Agent's choice and shall be fully protected in acting on
such advice whether or not the advice rendered is ultimately determined to have
been accurate.
SECTION 11. DEFAULT
11.1 Certain Rights Upon Default. In addition to any other
rights accorded to the Agent and the Senior Secured Parties hereunder, upon the
occurrence and during the continuation of an Event of Default:
11.1.1 The Agent shall be entitled to receive any
cash dividends or payments on the Collateral and, subject to Section 12 below,
to exercise in the Agent's discretion all voting rights pertaining thereto as
more fully set forth in Section 6 above. Without limiting
-9-
360
the generality of the foregoing, subject to Section 12 below, the Agent shall
have the right to exercise all rights with respect to the Collateral as if it
were the sole and absolute owner thereof, including, without limitation, to vote
and/or to exchange, at its sole discretion, any or all of the Collateral in
connection with a merger, reorganization, consolidation, recapitalization or
other readjustment concerning or involving the Collateral or the Borrower, any
Subsidiary of the Borrower or the Pledgor.
11.1.2 Pledgor, the Borrower and each Subsidiary of
the Borrower shall take any action necessary or required or requested by the
Agent in order to allow it fully to enforce the security interest in the
Collateral hereunder and to realize thereon to the fullest extent possible,
including, but not limited to, the filing of any claims with any court,
liquidator, trustee, guardian, receiver or other like person or party.
11.1.3 The Agent shall have all of the rights of a
secured party under the Uniform Commercial Code of Pennsylvania, as amended, and
any other applicable law including the right to sell on such terms as it may
deem appropriate any or all of the Collateral at one or more public or private
sales upon at least ten (10) Business Days' written notice to Pledgor of the
time and place of any public sale and of the date on which the Collateral will
first be offered for sale in the case of any private sale. Agent shall have the
right to bid thereat or purchase any part or all the Collateral in its own or a
nominee's name (subject to applicable FCC or PUC requirements or restrictions).
The Agent shall have the right to apply the proceeds of the sale, after
deduction for any costs and expenses of sale (including any liabilities incurred
in connection therewith including reasonable attorneys' fees and allocated costs
of attorneys who are employees of the Agent), to the payment of the Senior
Secured Obligations in any manner or order which the Agent, in its sole
discretion, may elect (whether pursuant to the Credit Agreement or otherwise),
to the payment of any other amount required by law (including without limitation
Section 9-504(l)(c) of the Uniform Commercial Code), and to pay any remaining
proceeds to Pledgor or its successors or assigns or to whomsoever may lawfully
be entitled to receive the same or as a court of competent jurisdiction may
direct, without further notice to or consent of Pledgor and without regard to
any equitable principles of marshalling or other like equitable doctrines.
Pledgor hereby acknowledges and agrees that the notice provided for above is
reasonable and expressly waives any rights it may have of equity of redemption,
stay or appraisal with respect to the Collateral.
11.1.4 For purposes hereof, a written agreement to
purchase the Collateral or any portion thereof shall be treated as a sale
thereof; the Agent shall be free to carry out such sale pursuant to such
agreement, and Pledgor shall not be entitled to the return of the Collateral or
any portion thereof, notwithstanding the fact that after Agent shall have
entered into such an agreement, any and all Defaults shall have been remedied
and the Senior Secured Obligations paid in full.
11.1.5 The Agent shall have the right, with full
power of substitution either in the Agent's name or the name of the Pledgor, to
ask for, demand, xxx, collect and receive any and all moneys due or to become
due under and by virtue of the Collateral and to settle, compromise, prosecute
or defend any action, claim or proceeding with respect thereto, provided,
however, that nothing herein shall be construed as requiring the Agent to take
any
-10-
361
action, including, without limitation, requiring or obligating the Agent to
make any inquiry as to the nature or sufficiency of any payment received, or to
present or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby.
11.1.6 The Agent shall be entitled to the appointment
of a receiver or trustee for all or any part of the businesses of the Borrower
or of the Subsidiary of the Borrower in which Pledgor owns an interest or of the
Pledgor, which receiver shall have such powers as may be conferred by law or the
appointing authority.
11.2 Agent May Exercise Less Than All Rights. Pledgor hereby
acknowledges and agrees that the Agent is not required to exercise all remedies
and rights available to it equally with respect to all of the Collateral, and
the Agent may select less than all of the Collateral with respect to which the
remedies as determined by the Agent may be exercised.
11.3 Duties of Pledgor/Borrower and Subsidiary of the Borrower
With Respect to Transferee. In the event that, upon an occurrence of an Event of
Default, the Agent shall sell all or any of the Collateral to another party or
parties (herein called "Transferee") or shall purchase or retain all or any of
the Collateral, Pledgor shall instruct the Borrower and each Subsidiary of the
Borrower in which Pledgor holds an interest to, and the Borrower and each such
Subsidiary shall:
(i) Deliver to the Agent or Transferee, as the case
may be, the articles of incorporation, bylaws, minute books, stock certificate
books, corporate seals, deeds, leases, indentures, agreements, evidences of
indebtedness, books of account, financial records and all other documents and
records of the Subsidiary of the Borrower in which Pledgor has an interest;
(ii) Use its best efforts to obtain resignations of
the persons then serving as officers and directors of Subsidiaries of the
Borrower in which Pledgor has an interest, if so requested; and
(iii) Use its best efforts to obtain any approvals
that are required by any governmental or regulatory body in order to permit the
sale of the Collateral to the Transferee or the purchase or retention of the
Collateral by the Agent and allow the Transferee or the Agent to continue the
business of the issuer.
SECTION 12. ACKNOWLEDGEMENT OF REGULATORY CONSIDERATIONS; UNIQUE NATURE
OF ASSETS.
12.1 FCC/PUC Approval. It is hereby acknowledged that transfer
of certain Collateral and the exercise of certain other remedies provided herein
may constitute a transfer of an FCC License or other Franchise or a sale or
transfer of control of a holder of an FCC License or other Franchise, requiring
approval of the FCC or PUC, pursuant to rules and regulations of the FCC or PUC.
Notwithstanding anything to the contrary contained in this Agreement, the Agent
will not knowingly take any action pursuant to this Agreement which would
constitute or result in an assignment of an FCC License or other Franchise or
any transfer of control of the
-11-
362
holder of an FCC License or other Franchise if such assignment of license or
transfer of control would require under then existing law (including the written
rules and regulations promulgated by the FCC or any PUC), the prior approval of
the FCC or such PUC, without first obtaining such approval. In connection with
this provision, the Agent shall be entitled to rely upon the advice of counsel
of Agent's choice whether or not the advice rendered is ultimately determined to
have been accurate.
12.2 Pledgor/Borrower and Subsidiary of the Borrower
Assistance in Obtaining Approval. Without limiting the generality of Section 8
above, if counsel to the Agent reasonably determines that the consent of the FCC
or PUC is required in connection with any of the actions hereunder or under any
other Loan Document, then the Pledgor (at the cost and expense of the Borrower
and its Subsidiaries) agrees to use its best efforts to secure such consent and
to cooperate fully with the Agent in any action to secure such consent. Further,
the Pledgor shall use its best efforts to require the Borrower and Subsidiaries
of the Borrower to do the same, Without limiting the generality of the
foregoing, Pledgor, the Borrower and the Borrower's Subsidiaries shall promptly
execute and file and/or cause the execution and filing of all applications,
certificates, instruments, and other documents and papers that the Agent deems
necessary or advisable to file in order to obtain any necessary governmental
consent, approval, or authorization, and if the Borrower, any Subsidiary of the
Borrower or Pledgor fails or refuses to execute (or fails or refuses to cause
another Person to execute) such documents, the Agent or the clerk of any court
of competent jurisdiction may execute and file the same on behalf of the
Borrower, any Subsidiary of the Borrower and Pledgor (or any of them) or such
other Person.
12.3 Unique Nature of Assets. It is agreed that the FCC
Licenses and other Franchises held by the Borrower and its Subsidiaries are
unique assets which (or the control of which) may have to be transferred in
order for the Agent adequately to realize the value of its security interest. A
violation of the covenants set forth in this Section would result in irreparable
harm to the Agent for which monetary damages are not readily ascertainable.
Therefore, in addition to any other remedy which may be available to the Agent
at law or in equity, Agent shall have the remedy of specific performance of the
provisions of this Section. To enforce the provisions of this Section, the Agent
is authorized to request the consent or approval of the FCC or PUC to a
voluntary or an involuntary transfer of control of any FCC License or other
Franchise or sale or transfer of control of a holder of an FCC License or other
Franchise.
12.4 Selection by Agent of Different Transferee. If, for any
reason, the FCC or PUC does not approve within a reasonable period of time
(which period shall be determined conclusively by the Agent), the initial
application for approval of the transfer of the Collateral, the Agent shall then
have the right to transfer the Collateral to such other Person as the Agent
shall select (subject to the prior approval of the FCC or PUC). With respect to
such subsequent selection, Pledgor agrees to cooperate fully in the manner set
forth above. Exercise by the Agent of the right to such cooperation shall not be
exhausted by the initial or any subsequent exercise thereof.
-12-
363
SECTION 13. SECURITIES LAW PROVISION
Pledgor recognizes that the Agent may be limited in its
ability to effect a sale to the public of all or part of the Collateral by
reason of certain prohibitions in the Securities Act of 1933, as amended, or
other federal or state securities laws (collectively, the "Securities Laws"),
and may be compelled to resort to one or more sales to a restricted group of
purchasers who may be required to agree to acquire the Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. Pledgor agrees that sales so made may be at prices and on terms less
favorable than if the Collateral were sold to the public, and that the Agent has
no obligation to delay the sale of any Collateral for the period of time
necessary to register the Collateral for sale to the public under the Securities
Laws. Pledgor shall (and require the Borrower and its Subsidiaries to) cooperate
with the Agent in its attempts to satisfy any requirements under the Securities
Laws (including without limitation registration thereunder if requested by
Agent) applicable to the sale of the Collateral by the Agent at the Borrower's
and its Subsidiaries' cost and expense.
SECTION 14. SECURITY INTEREST ABSOLUTE; WAIVERS BY PLEDGOR
14.1 Absolute Nature of Security Interest. All rights of the
Agent hereunder, the grant of the security interest in the Collateral and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of any of the terms
of the Loan Documents or any other instrument or document relating hereto or
thereto, (ii) any change in the time, manner or place of payment of, increases
in, or in any other term of, all or any of the Senior Secured Obligations, or
any other amendment or waiver of any terms related thereto, (iii) any exchange,
release or nonperfection of any other collateral, or any release or amendment or
waiver of any guaranty, or (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Pledgor or any other
Person in respect of the Senior Secured Obligations or in respect of this
Xxxxxxx Pledge Agreement or any other Loan Document or any obligations hereunder
or thereunder.
14.2 No Duty To Marshal Assets. The Agent shall have no
obligation to marshal any assets in favor of the Pledgor or any other Person or
against or in payment of any or all of the Senior Secured Obligations.
14.3 Waiver of Right of Subrogation, Etc. The Pledgor
acknowledges that until all the Senior Secured Obligations shall have been
indefeasibly paid in full, the Pledgor shall have no right (or hereby waives any
such right) of subrogation, reimbursement, or indemnity whatsoever in respect of
the Borrower or any Subsidiary of the Borrower arising out of remedies exercised
by the Agent hereunder.
14.4 Other Waivers. The Pledgor hereby waives notice of
acceptance of this Xxxxxxx Pledge Agreement. The Pledgor further waives
presentment and demand for payment of any of the Senior Secured Obligations,
protest and notice of dishonor or default with respect to any of the Senior
Secured Obligations, and all other notices to which the Pledgor might otherwise
be entitled, except as otherwise expressly provided in this Xxxxxxx Pledge
Agreement or any of the other Loan Documents. The Pledgor (to the extent that it
may lawfully do so)
-13-
364
covenants that it shall not at any time insist upon or plead, or in any manner
claim or take the benefit of, any stay, valuation, appraisal or redemption now
or at any time hereafter in force that, but for this waiver, might be applicable
to any sale made under any judgment, order or decree based on this Xxxxxxx
Pledge Agreement or any other Loan Document; and the Pledgor (to the extent that
it may lawfully do so) hereby expressly waives and relinquishes all benefit of
any and all such laws and hereby covenants that it will not hinder, delay or
impede the execution of any power in this Xxxxxxx Pledge Agreement or in any
other Loan Document delegated to the Agent, but that it will suffer and permit
the execution of every such power as though no such law or laws had been made or
enacted.
SECTION 15. NON-WAIVER AND NON-EXCLUSIVE REMEDIES
15.1 Non-Exclusive Remedies. No remedy or right herein
conferred upon, or reserved to the Agent is intended to be to the exclusion of
any other remedy or right, but each and every such remedy or right shall be
cumulative and shall be in addition to every other remedy or right given
hereunder or under any other Loan Document or under law.
15.2 Delay and Non-Waiver. No delay or omission by the Agent
to exercise any remedy or right hereunder shall impair any such remedy or right
or shall be construed to be a waiver of any Event of Default, or an acquiescence
therein, nor shall it affect any subsequent Event of Default of the same or of a
different nature.
SECTION 16. CONTINUING SECURITY INTEREST; HEIRS AND ASSIGNS
This Xxxxxxx Pledge Agreement shall create a continuing
security interest in the Collateral and shall (i) remain in full force and
effect until terminated pursuant to Section 17 below, (ii) be binding upon the
Pledgor, its successors and assigns and (iii) inure to the benefit of the Agent,
the other Senior Secured Parties and their respective successors, transferees
and assigns provided, however, that except as specifically set forth in clause
(i) of Section 7, the Pledgor shall not be permitted to transfer any of its
obligations hereunder.
SECTION 17. TERMINATION OF AGREEMENT; RELEASE OF COLLATERAL
17.1 Termination of Agreement.
17.1.1 At such time as (a) the Senior Secured Parties
have no obligation to make further loans or other extensions of credit to the
Borrower under the Credit Agreement, and (b) all the Senior Secured Obligations
have been indefeasibly paid and/or performed in full, this Xxxxxxx Pledge
Agreement shall terminate and the Collateral shall be released pursuant to
subsection 17.2, provided that if at the time of the payment in full of the
Senior Secured Obligations (i) such payment and performance is not subject to
any filed or threatened claim, contest, voidance or offset of any kind
whatsoever, (ii) the chief financial officer of the Borrower so certifies in
writing to Agent and (iii) the Borrower supplies to Agent such valuations,
information, evidence, certifications and opinions as Agent may request in
connection therewith, this Xxxxxxx Pledge Agreement shall terminate upon
satisfaction of the conditions in clauses (a) and (b) above without giving
effect to the requirement that the payment in full be indefeasible.
-14-
365
17.1.2 At such time as Xxxxxxx shall have acquired
all (but not less than all) of the equity of all Partially-Owned Subsidiaries
(as hereafter defined) in compliance with Subsection 7.7.2(c) of the Credit
Agreement (which subsection addresses dispositions to minority investors), this
Xxxxxxx Pledge Agreement shall terminate and the Collateral shall be released
pursuant to Subsection 17.2 below. "Partially-Owned Subsidiaries" means all
Subsidiaries of the Borrower that the Pledgor has any interest in at the time of
the acquisition referred to in the preceding sentence. For purposes of this
Subsection 17.1.2 only, the reference to Subsection 7.7.2(c) of the Credit
Agreement shall mean that Subsection as in effect on the Closing Date, or as
amended in any manner that is not more restrictive than that set forth in the
Credit Agreement on the Closing Date.
17.2 Duties of Agent With Respect To Release of Collateral.
When this Agreement terminates pursuant to subsection 17.1 above, the Agent
shall reassign and deliver to the Pledgor, or to such Person as the Pledgor
shall designate, against receipt, such of the Collateral (if any) as shall not
have been sold or otherwise applied by the Agent pursuant to the terms hereof
and shall still be held by it hereunder, together with appropriate instruments
of reassignment and release, all without any recourse to, or warranty whatsoever
by, the Agent, at the sole cost and expense of the Borrower.
17.3 Release of Certain Collateral. Effective upon the closing
of a sale of any Collateral as part of a disposition made by the Borrower or any
of its Subsidiaries in conformity with the provisions of the Credit Agreement
providing for dispositions to third parties free of Liens, and receipt by the
Agent of a certification to such effect from the chief financial officer of the
Borrower, then the security interest in the assets which are the subject of the
sale (the "Sold Collateral") shall terminate. The Agent shall thereupon reassign
and deliver to Pledgor, or to such Person as the Pledgor shall designate,
against receipt, the Sold Collateral, together with appropriate instruments of
reassignment and release, all without any recourse to, or warranty whatsoever
by, the Agent, at the sale cost and expense of the Borrower and its
Subsidiaries.
SECTION 18. MISCELLANEOUS PROVISIONS
18.1 Notices. All notices, requests, demands, directions and
other communications (collectively "notices") given or made upon any party under
the provisions of this Xxxxxxx Pledge Agreement shall be by telephone or in
writing (including facsimile communication) unless otherwise expressly provided
under this Xxxxxxx Pledge Agreement and if in writing, shall be delivered or
sent by facsimile to the respective parties at the addresses and numbers set
forth under their respective names on the signature pages to this Xxxxxxx Pledge
Agreement or in accordance with any subsequent unrevoked written direction from
any party to the others. All notices shall, except as otherwise expressly
provided in this Xxxxxxx Pledge Agreement, be effective (a) in the case of
facsimile, when received, (b) in case of hand-delivered notice, when hand
delivered, (c) in the case of telephone, when telephoned, provided, however,
that in order to be effective, telephonic notices must be confirmed in writing
no later than the next day by letter, facsimile or telex, (d) if given by mail,
four (4) days after such communication is deposited in the mails with first
class postage prepaid, return receipt requested, and (e) if given by any other
means (including air courier), when delivered; provided, that notices to the
Agent
-15-
366
shall not be effective until received. In the event of a discrepancy between any
telephonic or written notice, the written notice shall control.
18.2 Entire Agreement. This Xxxxxxx Pledge Agreement sets
forth all of the promises, covenants, agreements, conditions and understandings
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings, inducements or conditions,
express or implied, oral or written, with respect thereto, except as contained
or referred to herein.
18.3 Amendments. The terms of this Xxxxxxx Pledge Agreement
may be amended, terminated, modified, supplemented or waived only upon the
written consent of the Agent and the Pledgor. The rights of the Agent to so
change, modify, waive, discharge or terminate any provision hereof is subject to
the terms of Section 12.5 of the Credit Agreement, it being understood, however,
that the Pledgor is not a third party beneficiary of Section 12.5 of the Credit
Agreement.
18.4 Governing Law. This Xxxxxxx Pledge Agreement and the
rights and obligations of the parties hereunder shall be construed and enforced
in accordance with and shall be governed by the laws of the Commonwealth of
Pennsylvania.
18.5 Arbitration; Consent to Jurisdiction, Service and Venue;
Waiver of Jury Trial.
18.5.1 Arbitration.
(i) Upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any claim or controversy
arising out of, or relating to, the Loan Documents between any or all of the
parties hereto (a "Dispute") shall be resolved by binding arbitration conducted
under and governed by the Commercial Financial Disputes Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the "AAA") and the
Federal Arbitration Act. Disputes may include, without limitation, tort claims,
counterclaims, a dispute as to whether a matter is subject to arbitration,
claims brought as class actions, or claims arising from documents executed in
the future. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this arbitration provision does not
apply to disputes under or related to Interest Rate Protection Agreements.
(ii) All arbitration hearings shall be conducted in
the City of Philadelphia, Commonwealth of Pennsylvania unless otherwise agreed
by all parties to such arbitration. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall conclude within 120 days of demand
for arbitration. These time limitations may not be extended unless a party shows
cause for extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
the AAA. The parties do not waive applicable Federal or state substantive law
except as provided herein.
-16-
367
(iii) Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to proceed in any court
of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale or under
applicable law by judicial foreclosure including a proceeding to confirm the
sales; (ii) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property; and (iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and filing of involuntary bankruptcy proceedings. Any claim or
controversy with regard to any party's entitlement to such remedies is a
Dispute.
(iv) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A
REMEDY OF SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER
PARTIES IN ANY DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TO SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN
THE FUTURE IN CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS RESOLVED BY
ARBITRATION OR JUDICIALLY.
18.5.2 Consent to Jurisdiction, Service and Venue;
Waiver of Jury Trial
(i) With respect to any matters that may be heard
before a court of competent jurisdiction under paragraph (iii) of the preceding
subsection 18.5.1, the Pledgor hereby consents to the jurisdiction and venue of
the courts of the Commonwealth of Pennsylvania or of any federal court located
in such state, waives personal service of any and all process upon it and
consents that all such service of process be made by certified or registered
mail directed to the Pledgor at the address provided for in Section 18.1 above
and service so made shall be deemed to be completed upon actual receipt. The
Pledgor hereby waives the right to contest the jurisdiction and venue of the
courts located in the County of Philadelphia, Commonwealth of Pennsylvania on
the ground of inconvenience or otherwise and, further, waives any right to bring
any action or proceeding against (a) the Agent in any court outside the County
of Philadelphia, Commonwealth of Pennsylvania, or (b) any other Senior Secured
Party other than in a state within the United States designated by such Senior
Secured Party. The provisions of this Section 18.5 shall not limit or otherwise
affect the right of the Agent or any Senior Secured Party to institute and
conduct an action in any other appropriate manner, jurisdiction or court.
(ii) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE,
SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY
TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR ANY
OTHER LOAN DOCUMENT OR ANY GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE
RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE AGENT NOR
ANY SENIOR SECURED PARTY NOR ANY PLEDGOR NOR ANY OTHER PERSON WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.
-17-
368
(iii) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH
(iv) OF THE PRECEDING SUBSECTION 18.5.1 EXCEPT AS PROHIBITED BY LAW, EACH PARTY
TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY
ARBITRATION OR OTHER LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
EACH PARTY TO THIS AGREEMENT (i) CERTIFIES THAT NEITHER THE AGENT NOR ANY
REPRESENTATIVE, OR ATTORNEY OF THE AGENT NOR ANY SENIOR SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH SENIOR SECURED PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 18.5. THE PROVISIONS OF THIS SECTION 18.5 HAVE
BEEN FULLY DISCLOSED TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER
PARTY THAT THE PROVISIONS OF THIS SECTION 18.5 WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
18.6 Severability. If any of the provisions or terms of this
Xxxxxxx Pledge Agreement shall for any reason be held to be invalid or
unenforceable such invalidity or unenforceability shall not affect any of the
other terms hereof, but this Xxxxxxx Pledge Agreement shall be construed as if
such invalid or unenforceable term had never been contained herein. Any such
invalidity or unenforceability in a particular jurisdiction shall not be deemed
to render a provision invalid or unenforceable in any other jurisdiction.
18.7 Counterparts. This Xxxxxxx Pledge Agreement may be
executed in one or more counterparts, each of which shall constitute an original
agreement, but all of which together shall constitute one and the same
instrument. A photocopied or facsimile copy of any signature page to this
Xxxxxxx Pledge Agreement shall be deemed to be the functional equivalent of a
manually executed original for all purposes.
18.8 Rights under Xxxxxxx Agreement.
18.8.1 Pledgor consents to the terms and conditions
of the Credit Agreement and the Senior Subordinated Indenture and the incurring
of additional debt pursuant thereto. Pledgor acknowledges that the debt
facilities under the Credit Agreement and the Senior Subordinated Indenture
constitute a "Refinancing" and "Media Debt" and the lenders under such credit
facilities constitute "Creditors" for the purposes of, and as such capitalized
terms are used in, the Xxxxxxx Agreement (as defined in the Credit Agreement).
18.8.2 Neither Pledgor nor any affiliate of Pledgor
may exercise the right of first refusal or the other rights set forth in
Sections 13 and 14 of the Xxxxxxx Agreement if immediately prior to such
exercise, and before giving effect thereto, a Default or Event of Default
exists.
-18-
369
18.8.3 Pledgor acknowledges that (i) the exercise by
it or any of its affiliates of certain of the Pledgor's rights under the Xxxxxxx
Agreement, including, without limitation, under Sections 13, 14, 27 and 28
thereof, may be a Default under the Loan Documents, (ii) the Agent and the
Senior Secured Parties are not waiving any rights or remedies they may have
against the Borrower, any of the Borrower's Subsidiaries, Pledgor or any
affiliate of Pledgor as a result of any exercise of such rights, and (iii) the
exercise of any such rights shall not impair the paramount rights of Agent and
the Senior Secured Parties pursuant to the Loan Documents, including the first
priority security interest of Agent in all of the stock of the Subsidiaries of
the Borrower that Pledgor or any affiliate of Pledgor now owns or may hereafter
acquire. Pledgor shall give to Agent and each Senior Secured Party (at the
address of such Senior Secured Party specified in the Credit Agreement or such
other address of which Pledgor is notified by a Senior Secured Party) at least
thirty (30) days prior written notice of its intention to exercise any of its
rights under Sections 13, 14, 27 or 28 of the Xxxxxxx Agreement, which notice
shall specify the Section of the Xxxxxxx Agreement pursuant to which Pledgor
intends to exercise its rights and the basis for such exercise.
-19-
370
IN WITNESS WHEREOF, the parties have caused this Xxxxxxx
Pledge Agreement to be duly executed and delivered by their respective
authorized officers on the date first above written.
PLEDGOR: XXXXXXX YORK, INC.
By:_______________________________________
Name:
Title:
Notice Information
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: X.X. Xxxxxxx, President
AGENT: FIRST UNION NATIONAL BANK, in its capacity
as Agent
By:_______________________________________
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
Notice Information
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx,
Senior Vice President
Signature Page to Xxxxxxx Pledge Agreement
371
JOINDER
The undersigned acknowledge the Xxxxxxx Pledge Agreement to
which this Joinder is attached, and hereby jointly and severally agree to be
bound by the foregoing Xxxxxxx Pledge Agreement and to perform the covenants
contained therein required to be performed by each.
SUSQUEHANNA MEDIA CO.
SUSQUEHANNA CABLE CO.
CABLE TV OF EAST PROVIDENCE, INC.
CASCO CABLE TELEVISION, INC.
CASCO CABLE TELEVISION OF BATH, MAINE
SBC CABLE CO.
YORK CABLE TELEVISION, INC.
By: ___________________________________
Name: Xxxx X. Xxxxxxx
Title: Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
Joinder to Xxxxxxx Pledge Agreement
372
SCHEDULE I
TO XXXXXXX PLEDGE AGREEMENT
SHARES OWNED BY XXXXXXX
132,431.41 shares of Class A Common Stock of Susquehanna Cable Co.
69.06 shares of Common Stock of Casco Cable Television, Inc.
43.16 shares of Common Stock of Casco Cable Television of Bath, Maine
1,294.83 shares of Common Stock of Cable TV of East Providence, Inc.
9,322.8 shares of Common Stock of SBC Cable Co.
10.79 shares of Common Stock of York Cable Television, Inc.
373
AFFILIATE SUBORDINATION AGREEMENT
(Susquehanna Pfaltzgraff Co.)
AFFILIATE SUBORDINATION AGREEMENT (as same may be amended, modified or
supplemented from time to time, this "Agreement") dated as of May 12, 1999 among
SUSQUEHANNA PFALTZGRAFF CO., a Delaware corporation ("SPC"), SUSQUEHANNA MEDIA
CO., a Delaware corporation (the "Borrower"), and FIRST UNION NATIONAL BANK, as
Agent (in such capacity, including successors and assigns, the "Agent"),
appointed pursuant to a certain Credit Agreement dated as of even date (as such
term is hereinafter defined), among (i) the Borrower and the (ii) lenders
referred to therein, and (iii) the Agent.
Background
On the date hereof certain lenders and issuers of letters of credit and
FIRST UNION NATIONAL BANK as Agent have entered into a Credit Agreement (as
amended, extended, supplemented, restated or otherwise modified or refinanced,
including without limitation any amendment involving an increase in principal,
interest rate or other amount, the "Credit Agreement") with the Borrower
pursuant to which such lenders and issuers agreed to extend certain credit to
the Borrower upon the terms and conditions specified in the Credit Agreement
under (1) a revolving credit facility with a swing loan subfacility, and (2) two
separate term loan facilities, and to issue, or participate in the issuance of,
certain letters of credit. In addition, the Credit Agreement currently requires
the Borrower under certain conditions to enter into interest rate hedging
agreements.
To induce the Lenders (as defined in the Credit Agreement) to enter
into the Credit Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, SPC, the Borrower and
the Agent wish to enter into this Agreement pursuant to which SPC and the
Borrower will agree that certain obligations of the Borrower to SPC shall be
subordinate in right of payment to the Senior Secured Obligations (as defined in
the Credit Agreement). Accordingly, SPC, the Borrower, and the Agent, intending
to be legally bound, hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Credit Agreement. The
following terms shall have the meanings set forth below:
"Debtor" shall mean the Borrower and/or its Subsidiaries.
"SPC Debt" shall mean all Indebtedness, whether principal or interest,
and other obligations from time to time owing by the Borrower or any of its
Subsidiaries to SPC, whether in respect of Management Fees or otherwise,
provided, however, that SPC Debt shall not include obligations of the Borrower
or any of its Subsidiaries to SPC in respect of (i) SPC Expense Reimbursement,
and (ii) that portion of Management Fees which does not exceed an amount equal
to two and one-half
1
374
percent (2-1/2%) of the consolidated revenues (net of agency commissions) of
the Borrower and its Subsidiaries for any fiscal year, (iii) required payments
under the Tax Sharing Agreement, and (iv) ESOP Compensation Expense allocated to
the Debtor pursuant to the ESOP Sharing Agreement.
Section 2. Representations and Warranties. SPC represents and warrants
to the Agent for the benefit of the Senior Secured Parties that:
2.01 Existence. SPC is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware.
2.02 Authority. The making and performance by SPC of this Agreement
have been duly authorized by all necessary corporate action and do not and will
not violate any provision of law, rules, regulations, or orders or any provision
of the charter or bylaws of SPC or result in the breach of, or constitute a
default or require any consent under, any indenture or other agreement or
instrument by which SPC may be bound or affected. This Agreement has been duly
and validly executed and delivered by SPC and constitutes the legal, valid and
binding obligation of SPC enforceable in accordance with its terms, subject as
to enforceability (a) to bankruptcy, insolvency, reorganization or moratorium
and other similar laws affecting creditor's rights generally and (b) to the
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law).
2.03 Approvals. No approval or consent of, or filing or registration
with, any state or federal commission or other federal, state or local
regulatory or governmental authority is required in connection with the
execution, delivery and performance by SPC of this Agreement.
Section 3. Subordination Provisions. It is intended by the Agent and
the Senior Secured Parties that the subordination provisions contained in this
Agreement shall benefit the Agent and the Senior Secured Parties equally (in
priority) and ratably, and that the SPC Debt and the payment thereof shall be
subordinate to the Senior Secured Obligations. To implement the foregoing (but
without limiting the generality thereof as it may apply to other provisions of
this Agreement), SPC agrees as follows:
3.01 Subordination. SPC hereby agrees that, except as and to the extent
hereinafter provided, the SPC Debt is and shall be subordinate and subject in
right of payment to the prior payment in full of all of the Senior Secured
Obligations, whether or not such Senior Secured Obligations have been voided,
disallowed or subordinated pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code or any applicable state fraudulent conveyance laws, whether
asserted directly or under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code.
Without limiting the foregoing, SPC also hereby agrees that, (a) except as
otherwise provided in Section 3.02 of this Agreement, it will not ask, demand,
xxx for, take or receive from the Borrower or any Subsidiary thereof (other than
directing the Borrower or such Subsidiary to make payment directly to the
holders of the Senior Secured Obligations for the purpose of causing the Senior
Secured Obligations to be paid), by set-off or in any other manner, payment of
the whole or any part of the SPC Debt, or any security therefor, and (b) it will
not accelerate all or any portion of the SPC Debt or otherwise implement any
remedy it may have in respect of the SPC Debt (provided that SPC may accelerate
the SPC Debt if all outstanding Senior Secured Obligations shall have been
previously accelerated), in each case unless and until all of the Senior Secured
Obligations shall
2
375
have been fully, finally and indefeasibly paid in cash, whether or not such
Senior Secured Obligations have been voided, disallowed or subordinated pursuant
to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any applicable state
fraudulent conveyance laws, whether asserted directly or under Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Bankruptcy Code. SPC hereby irrevocably directs the Borrower
to make such prior payment. SPC further agrees that it will not institute
against the Borrower or any Subsidiary thereof any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law until such time as
the Senior Secured Obligations have been fully, finally and indefeasibly paid in
cash.
3.02 Certain Payments Permitted. So long as no Potential Event of
Default or Event of Default has occurred and is continuing, and only to the
extent not prohibited by the provisions of any of the Loan Documents, SPC may
from time to time receive from the Borrower payments of principal of and
interest on the SPC Debt.
3.03 Distributions, etc. In furtherance of, and to make effective, the
subordination provided for herein, SPC further agrees as follows:
(a) In the event of any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the assets of the Borrower or the
proceeds thereof, to creditors of the Borrower by reason of (1) the
liquidation, dissolution or other winding up, partial or complete, of
the Borrower or the Borrower's business, (2) any receivership,
insolvency or bankruptcy proceeding, or assignment for the benefit of
creditors, or (3) any proceeding by or against the Borrower for any
relief under any bankruptcy or insolvency law or laws relating to the
relief of debtors, readjustment of indebtedness, arrangements,
reorganizations, compositions or extensions, then and in any such
event:
(i) any payment or distribution of any kind or
character, whether in cash, securities or other property which
but for this Agreement would be payable or deliverable upon or
with respect to any or all of the SPC Debt, shall instead be
paid or delivered directly to the Agent for application to the
Senior Secured Obligations, whether then due or not due, until
the Senior Secured Obligations shall have first been fully,
finally and indefeasibly paid in cash and satisfied; and
(ii) SPC hereby irrevocably authorizes and empowers
the Agent to demand, xxx for, collect and receive every such
payment or distribution and give acquittance therefor, and to
file and/or vote claims and take such other proceedings, in
the Agent's own name or in the name of SPC, or otherwise, as
the Agent may deem necessary or advisable for the enforcement
of this Agreement (including, without limitation, the filing
of any proof of claim in respect of the SPC Debt in any
bankruptcy or insolvency proceeding of the Borrower). In
furtherance of the foregoing, SPC agrees duly and promptly to
take such action as may be reasonably requested by the Agent
to assist in the collection of the SPC Debt for the account of
the Agent and/or to file appropriate proofs of claim in
respect of the SPC Debt, and to execute and deliver to the
Agent on demand such powers of attorney, proofs of claim,
assignments of claim or other instruments as may be reasonably
requested by
3
376
the Agent to enable the Agent to enforce any and all claims
upon or with respect to the SPC Debt, and to collect and
receive any and all payments or distributions which may be
payable or deliverable at any time upon or with respect to the
SPC Debt.
(b) If any payment, distribution of security or proceeds of
any security are received by SPC upon or in respect of the SPC Debt in
contravention of the provisions hereof, SPC will forthwith deliver the
same to the Agent in precisely the form received (except for the
endorsement or assignment of SPC where necessary), for application to
the Senior Secured Obligations, whether then due or not due, and, until
so delivered, the same shall be held in trust by SPC as property of the
Agent. In the event of the failure of SPC to make any such endorsement
or assignment, the Agent, or any of its officers or employees, are
hereby irrevocably authorized to make the same.
(c) SPC agrees that it will not transfer, assign, pledge or
encumber the SPC Debt or any part thereof or any instrument evidencing
the same unless the respective instrument of assignment specifically
provides that the assignee takes the SPC Debt subject to the provisions
of this Agreement and such assignee executes and delivers to the Agent
an instrument in form and substance satisfactory to the Agent pursuant
to which such assignee agrees to be bound by the provisions of this
Agreement. From and after the occurrence of any Default of which SPC
has or should reasonably be expected to have knowledge, and for so long
as the same shall be continuing, SPC agrees that it will not exchange,
forgive, waive or cancel the SPC Debt or any part thereof or reduce the
principal amount of the SPC Debt in whole or in part.
(d) Without limiting the effect of any of the other provisions
hereof, during the continuance of any Default or Event of Default with
respect to any Obligation or any default in the payment of any
Obligation, no payment of principal, sinking fund, interest or premium
(or any other amount) shall be made on or with respect to the SPC Debt
or any renewals or extensions thereof.
3.04 Continuing Subordination, etc. The subordination effected by this
Agreement is a continuing subordination, and SPC hereby agrees that at any time
and from time to time, without notice to it:
(a) the time for the Borrower's performance of or compliance
with any of its agreements contained in any of the Loan Documents may
be extended or such performance or compliance may be waived by the
applicable Senior Secured Parties;
(b) any of the acts mentioned in any of the Loan Documents may
be done;
(c) any of the Loan Documents may be amended for the purpose
of adding any provisions thereto or increasing the amount of, or
changing the terms of, the Senior Secured Obligations or changing in
any manner the rights of the Agent, any of the Senior Secured Parties
or the Borrower thereunder;
4
377
(d) payment of any of the Senior Secured Obligations or any
portion thereof may be extended; and
(e) the maturity of any of the Senior Secured Obligations may
be accelerated, and any collateral security thereof may be exchanged,
sold, surrendered, released or otherwise dealt with, in accordance with
the terms of any of the Loan Documents or any other present or future
agreement between the Borrower and the applicable Senior Secured
Parties;
all without impairing or affecting the obligations of SPC hereunder.
3.05 Waiver of Notice. SPC hereby unconditionally waives notice of the
incurring of the Senior Secured Obligations or any part thereof and reliance by
any Senior Secured Party upon the subordination of the SPC Debt to the Senior
Secured Obligations.
3.06 Application of Payments. Whenever any payment or distribution
shall be paid or delivered to the Agent pursuant to the provisions of this
Section 3 for application on the Senior Secured Obligations, such payment or
distribution shall be applied by the Agent in accordance with the priorities set
forth in the Credit Agreement.
3.07 Subrogation. Subject to the prior indefeasible payment in full in
cash of the Senior Secured Obligations, SPC shall be subrogated to the rights of
the Agent and the Senior Secured Parties to receive payments or distributions in
cash, property or securities of the Borrower applicable to the Senior Secured
Obligations until all amounts owing on the Senior Secured Obligations shall be
paid in full in cash, and as between and among the Borrower, its creditors other
than the Agent and the Senior Secured Parties, and SPC, no such payment or
distribution made to the Agent or the Senior Secured Parties by virtue of this
Agreement which otherwise would have been made to SPC shall be deemed to be a
payment by the Borrower on account of the Senior Secured Obligations, it being
understood that the provisions of this Section 3 are intended solely for the
purpose of defining the relative rights of SPC, the Agent and the Senior Secured
Parties.
3.08 Certain Agreements. SPC agrees that:
(a) all holders of Senior Secured Obligations, in determining
to acquire and retain Senior Secured Obligations, have relied upon the
subordination of the SPC Debt to the Senior Secured Obligations as
provided herein;
(b) promptly upon the written request of the Requisite
Creditors, SPC shall execute and deliver to the Senior Secured Parties
a written instrument by which SPC affirms and agrees that the SPC Debt
is subordinated and junior in right of payment to such Senior Secured
Obligations on terms and conditions provided herein;
(c) promptly upon the written request of any holder of Senior
Secured Obligations, SPC shall take such other action as may be
reasonably requested by the Agent to protect the rights of the Agent or
effectuate the subordination provided herein;
5
378
(d) the SPC Debt shall not at any time be (i) secured by any
lien or security interest on property of the Borrower or any Subsidiary
of the Borrower or (ii) subordinated to any other obligations, other
than the Senior Secured Obligations; and
(e) the payments to which SPC is entitled under the Tax
Sharing Agreement (as defined in the Credit Agreement) and the other
payments excluded from the definition of SPC Debt pursuant to the
proviso set forth in that definition, shall not be subordinated to any
obligations.
Section 4. Miscellaneous.
4.01 Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the Commonwealth of Pennsylvania.
4.02 Notices. All notices, requests, demands, directions and other
communications (collectively "notices") given to or made upon any party under
the provisions of this Agreement shall be by telephone or in writing (including
facsimile communications) unless otherwise expressly provided under this
Agreement and if in writing shall be delivered or sent by facsimile to the
respective parties at the addresses and numbers set forth under their respective
names on the signature pages of this Agreement or in accordance with any
subsequent unrevoked written direction from any party to the others. All notices
shall, except as otherwise expressly provided in this Agreement, be effective
(a) in the case of facsimile, when received, (b) in the case of hand-delivered
notice, when hand delivered, (c) in the case of telephone, when telephoned,
provided, however, that in order to be effective, telephone notices must be
confirmed in writing no later than the next day by letter, facsimile or telex,
(d) if given by mail, four (4) days after such communication is deposited in the
mails with first class postage prepaid, return receipt requested, and (e) if
given by any other means (including by air courier), when delivered; provided,
that notices to the Agent shall not be effective until received. In the event of
a discrepancy between any telephonic or written notice, the written notice shall
control.
4.03 Arbitration; Consent to Jurisdiction, Service and Venue; Waiver of
Jury Trial.
(a) Arbitration.
(i) Upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any
claim or controversy arising out of, or relating to, this
Agreement between any or all of the parties hereto (a
"Dispute") shall be resolved by binding arbitration conducted
under and governed by the Commercial Financial Disputes
Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal
Arbitration Act. Disputes may include, without limitation,
tort claims, counterclaims, a dispute as to whether a matter
is subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A
judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to
Interest Rate Protection Agreements.
6
379
(ii) All arbitration hearings shall be conducted in
the City of Philadelphia, Commonwealth of Pennsylvania unless
otherwise agreed by all parties to such arbitration. A hearing
shall begin within 90 days of demand for arbitration and all
hearings shall conclude within 120 days of demand for
arbitration. These time limitations may not be extended unless
a party shows cause for extension and then for no more than a
total of 60 days. The expedited procedures set forth in Rule
51 et seq. of the Arbitration Rules shall be applicable to
claims of less than $1,000,000.00. Arbitrators shall be
licensed attorneys selected from the Commercial Financial
Dispute Arbitration Panel of the AAA. The parties do not waive
applicable Federal or state substantive law except as provided
herein.
(iii) Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without
diminution, certain remedies that any party may exercise
before or after an arbitration proceeding is brought. The
parties shall have the right to proceed in any court of proper
jurisdiction or by self-help to exercise or prosecute the
following remedies, as applicable: (a) all rights to foreclose
against any real or personal property or other security by
exercising a power of sale or under applicable law by judicial
foreclosure including a proceeding to confirm the sales; (b)
all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful
possession of personal property; and (c) obtaining provisional
or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of
receiver and filing of involuntary bankruptcy proceedings. Any
claim or controversy with regard to any party's entitlement to
such remedies is a Dispute.
(iv) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A
REMEDY OF SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY
DAMAGES AGAINST OTHER PARTIES IN ANY DISPUTE AND HEREBY WAIVE
ANY RIGHT OR CLAIM TO SPECIAL, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN THE
FUTURE IN CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS
RESOLVED BY ARBITRATION OR JUDICIALLY.
(b) Consent to Jurisdiction, Service and Venue; Waiver of Jury
Trial.
(i) With respect to any matters that may be heard
before a court of competent jurisdiction under paragraph (iii)
of the preceding subsection 4.03(a), SPC and the Borrower each
hereby consents to the jurisdiction and venue of the courts of
the Commonwealth of Pennsylvania or of any federal court
located in such state, waives personal service of any and all
process upon it and consents that all such service of process
be made by certified or registered mail directed to the SPC or
the Borrower at the address provided for in Section 4.02 above
and service so made shall be deemed to be completed upon
actual receipt. SPC and the Borrower each hereby waives the
right to contest the jurisdiction and venue of the courts
located in the County of Philadelphia, Commonwealth of
Pennsylvania on the ground of inconvenience or otherwise and,
further, waives
7
380
any right to bring any action or proceeding against (a) the
Agent in any court outside the County of Philadelphia,
Commonwealth of Pennsylvania, or (b) any other Senior Secured
Party other than in a state within the United States
designated by such Senior Secured Party. The provisions of
this Section 4.03 shall not limit or otherwise affect the
right of the Agent, any Senior Secured Party or other Senior
Secured Party to institute and conduct an action in any other
appropriate manner, jurisdiction or court.
(ii) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE,
SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING
SHALL SEEK A JURY TRIAL IN ANY PROCEEDING BASED UPON OR
ARISING OUT OF THIS AGREEMENT, OR ANY OTHER LOAN DOCUMENT OR
ANY GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE RELATIONSHIP
BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE
AGENT NOR ANY SENIOR SECURED PARTY NOR SPC NOR THE BORROWER
NOR ANY OTHER PERSON WILL SEEK TO CONSOLIDATE ANY SUCH ACTION
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS
NOT BEEN WAIVED.
(iii) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH
(iv) OF THE PRECEDING SUBSECTION 4.03(a) EXCEPT AS PROHIBITED
BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY
HAVE TO CLAIM OR RECOVER IN ANY ARBITRATION OR OTHER
LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. EACH PARTY TO THIS AGREEMENT (i) CERTIFIES THAT
NEITHER THE AGENT NOR ANY REPRESENTATIVE, OR ATTORNEY OF THE
AGENT NOR ANY SENIOR SECURED PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THE AGENT OR SUCH SENIOR SECURED PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN
DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 4.03. THE PROVISIONS OF THIS
SECTION 4.03 HAVE BEEN FULLY DISCLOSED TO THE PARTIES AND THE
PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN
ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE
PROVISIONS OF THIS SECTION 4.03 WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
4.04 Waivers, etc. The terms of this Agreement may be waived, altered
or amended only by an instrument in writing duly executed by SPC and the Agent.
Any such amendment or waiver shall be binding upon all Senior Secured Parties
and each other party to this Agreement.
8
381
4.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of SPC, Borrower,
the Agent and each of the Senior Secured Parties (provided, however, that SPC
shall not assign or transfer its rights or obligations hereunder without the
prior written consent of the Agent).
4.06 Counterparts. This Agreement may be executed in one or more
counterparts and all of such counterparts taken together shall constitute one
and the same instrument. A photocopied or facsimile copy of any signature page
to this Agreement shall be deemed to be the functional equivalent of a manually
executed original for all purposes.
9
382
IN WITNESS WHEREOF, the parties hereto have caused this
Affiliate Subordination Agreement to be duly executed as of the day and year
first above written.
SUSQUEHANNA PFALTZGRAFF CO.
By: _______________________________
Name: Xxxx X. Xxxxxxxxx
Title Vice President
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
SUSQUEHANNA MEDIA CO.
By: _______________________________
Name: Xxxx X. Xxxxxxx
Title: Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
Signature Page to the Susquehanna Pfaltzgraff Co. Affiliate Subordination
Agreement
383
FIRST UNION NATIONAL BANK, in its
capacity as Agent
By: _______________________________
Xxxxxxxxx Xxxxxx
Senior Vice President
Notice Information
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx,
Senior Vice President
Signature Page to the Susquehanna Pfaltzgraff Co.
Affiliate Subordination Agreement
384
OTHER SHAREHOLDERS SUBORDINATION AGREEMENT
(Other Shareholders)
OTHER SHAREHOLDERS SUBORDINATION AGREEMENT (as same may be amended,
modified or supplemented from time to time, this "Agreement") dated as of May
12, 1999 among the subordinated shareholders listed on the signature pages
hereto (collectively, the "Subordinated Shareholders" or individually a
"Subordinated Shareholder"), SUSQUEHANNA MEDIA CO., a Delaware corporation (the
"Borrower"), the Subsidiaries of the Borrower who execute this Agreement
(collectively, the "Subsidiaries of the Borrower"), and FIRST UNION NATIONAL
BANK, as agent (in such capacity, including successors and assigns, the
"Agent"), appointed pursuant to the Credit Agreement dated as of even date (as
amended, modified or supplemented from time to time, the "Credit Agreement")
among (i) the lenders referred to therein, and (iii) the Agent.
Background
On the date hereof, certain lenders and issuers of letters of credit
and FIRST UNION NATIONAL BANK as Agent have entered into a Credit Agreement (as
amended, extended, supplemented, restated or otherwise modified or refinanced,
including without limitation any amendment involving an increase in principal,
interest rate or other amount, the "Credit Agreement") with the Borrower,
pursuant to which such lenders and issuers agreed to extend credit to the
Borrower upon the terms and conditions specified in the Credit Agreement under
(1) a revolving credit facility with a swing loan subfacility, and (2) two
separate term loan facilities, and to issue, or participate in the issuance of,
certain Letters of Credit. In addition, the Credit Agreement currently requires
the Borrower under certain conditions to enter into Interest Rate Hedging
Agreements.
To induce the Lenders (as defined in the Credit Agreement) to enter
into the Credit Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Subordinated
Shareholders, the Borrower and the Subsidiaries of the Borrower wish to enter
into this Agreement pursuant to which the Subordinated Shareholders, the
Borrower, and the Subsidiaries of the Borrower will agree that certain
obligations of the Borrower and the Subsidiaries of the Borrower to the
Subordinated Shareholders shall be subordinate in right of payment to the Senior
Secured Obligations (as defined in the Credit Agreement). Accordingly, the
Subordinated Shareholders, the Borrower, the Subsidiaries of the Borrower, and
the Agent, intending to be legally bound, hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Credit Agreement. The
following term shall have the meaning set forth below:
"Subordinated Debt" shall mean all indebtedness, whether
principal or
385
interest, dividends and other obligations from time to time owing by the
Borrower or any of the Subsidiaries of the Borrower to one or more of the
Subordinated Shareholders, provided, however, that Subordinated Debt shall not
include obligations of the Borrower or any of the Subsidiaries of the Borrower
to any Subordinated Shareholder in respect of salaries or other compensation not
restricted under the Loan Documents and paid in the ordinary course of business.
Section 2. Representations and Warranties. Each Subordinated
Shareholder, as to itself only, represents and warrants to the Agent for the
benefit of the Senior Secured Parties that:
2.01 Authority. The making and performance by such Subordinated
Shareholder of this Agreement has been duly authorized and does not and will not
violate any provision of law, rules, regulations, or result in the breach of, or
constitute a default or require any consent under, any indenture or other
agreement or instrument by which any such Subordinated Shareholder may be bound
or affected. This Agreement has been duly and validly executed and delivered by
such Subordinated Shareholder and constitutes the legal, valid and binding
obligation of such Subordinated Shareholder enforceable in accordance with its
terms, subject as to enforceability (a) to bankruptcy, insolvency,
reorganization or moratorium and other similar laws affecting creditor's rights
generally and (b) to the application of general principles of equity (regardless
of whether considered in a proceeding in equity or at law).
2.02 Approvals. No approval or consent of, or filing or registration
with, any state or federal commission or other federal, state or local
regulatory or governmental authority is required in connection with the
execution, delivery and performance by such Subordinated Shareholder of this
Agreement.
Section 3. Subordination Provisions. It is intended by the Agent and
the Senior Secured Parties that the subordination provisions contained in this
Agreement shall benefit the Agent and the Senior Secured Parties equally (in
priority) and ratably, and that the Subordinated Debt and the payment thereof
shall be subordinate to the Senior Secured Obligations. To implement the
foregoing (but without limiting the generality thereof as it may apply to other
provisions of this Agreement), each Subordinated Shareholder, as to itself only,
agrees as follows:
3.01 Subordination. Each Subordinated Shareholder hereby agrees that,
except as and to the extent hereinafter provided, the Subordinated Debt is and
shall be subordinate and subject in right of payment to the prior payment in
full of all of the Senior Secured Obligations, whether or not such Senior
Secured Obligations have been voided, disallowed or subordinated pursuant to
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any applicable state
fraudulent conveyance laws, whether asserted directly or under Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Bankruptcy Code. Without limiting the foregoing, each
Subordinated Shareholder also hereby agrees that, (a) except as otherwise
provided in Section 3.02 of this Agreement, it will not ask, demand, xxx for,
take or receive from the Borrower or any Subsidiary of the Borrower or any
Subsidiary of the Borrower (other than directing the Borrower or such Subsidiary
to make payment directly to the holders of the Senior Secured Obligations for
the purpose of causing the Senior Secured Obligations to be paid), by set-off or
in any other manner, payment of the whole or any part of the Subordinated Debt,
or any security therefor, and (b) it will not accelerate all or any portion of
the Subordinated Debt or otherwise implement any remedy it may have in respect
of the Subordinated Debt (provided that a Subordinated Shareholder may
accelerate the Subordinated Debt owed to it if all
2
386
outstanding Senior Secured Obligations shall have been previously accelerated),
in each case unless and until all of the Senior Secured Obligations shall have
been fully, finally and indefeasibly paid in cash, whether or not such Senior
Secured Obligations have been voided, disallowed or subordinated pursuant to
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any applicable state
fraudulent conveyance laws, whether asserted directly or under Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Bankruptcy Code. Each Subordinated Shareholder hereby
irrevocably directs the Borrower and the Subsidiaries of the Borrower to make
such prior payment. Each Subordinated Shareholder further agrees that it will
not institute against the Borrower or the Subsidiaries of the Borrower any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law until such time as the Senior Secured Obligations have been fully,
finally and indefeasibly paid in cash.
3.02 Certain Payments Permitted. So long as no Potential Event of
Default or Event of Default has occurred and is continuing, and only to the
extent not prohibited by the provisions of any of the Loan Documents, the
Subordinated Shareholders may from time to time receive from the Borrower or the
Subsidiaries of the Borrower payments of the Subordinated Debt.
3.03 Distributions, etc. In furtherance of, and to make effective, the
subordination provided for herein, each Subordinated Shareholder, as to itself
only, further agrees as follows:
(a) In the event of any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the assets of the Borrower or any of
the Subsidiaries of the Borrower or the proceeds thereof, to creditors
of the Borrower or any of the Subsidiaries of the Borrower by reason of
(1) the liquidation, dissolution or other winding up, partial or
complete, of the Borrower or any of the Subsidiaries of the Borrower or
the business of the Borrower or any of the Subsidiaries of the
Borrower, (2) any receivership, insolvency or bankruptcy proceeding, or
assignment for the benefit of creditors, or (3) any proceeding by or
against the Borrower or any of the Subsidiaries of the Borrower for any
relief under any bankruptcy or insolvency law or laws relating to the
relief of debtors, readjustment of indebtedness, arrangements,
reorganizations, compositions or extensions, then and in any such
event:
(i) any payment or distribution of any kind or
character, whether in cash, securities or other property which
but for this Agreement would be payable or deliverable upon or
with respect to any or all of the Subordinated Debt, shall
instead be paid or delivered directly to the Agent for
application to the Senior Secured Obligations, whether then
due or not due, until the Senior Secured Obligations shall
have first been fully, finally and indefeasibly paid in cash
and satisfied; and
(ii) each Subordinated Shareholder hereby irrevocably
authorizes and empowers the Agent to demand, xxx for, collect
and receive every such payment or distribution and give
acquittance therefor, and to file and/or vote claims and take
such other proceedings, in the Agent's own name or in the name
of the Subordinated Shareholder, or otherwise, as the Agent
may deem necessary or advisable for the enforcement of this
Agreement (including, without limitation, the filing of any
proof of claim in respect of the Subordinated Debt in any
bankruptcy or insolvency proceeding of the Borrower or of any
Subsidiary of the Borrower). In furtherance of
3
387
the foregoing, each Subordinated Shareholder agrees duly and
promptly to take such action as may be reasonably requested by
the Agent to assist in the collection of the Subordinated Debt
for the account of the Agent and/or to file appropriate proofs
of claim in respect of the Subordinated Debt, and to execute
and deliver to the Agent on demand such powers of attorney,
proofs of claim, assignments of claim or other instruments as
may be reasonably requested by the Agent to enable the Agent
to enforce any and all claims upon or with respect to the
Subordinated Debt, and to collect and receive any and all
payments or distributions which may be payable or deliverable
at any time upon or with respect to the Subordinated Debt.
(b) If any payment, distribution of security or proceeds of
any security are received by any Subordinated Shareholder upon or in
respect of the Subordinated Debt in contravention of the provisions
hereof, such Subordinated Shareholder will forthwith deliver the same
to the Agent in precisely the form received (except for the endorsement
or assignment of such Subordinated Shareholder where necessary), for
application to the Senior Secured Obligations, whether then due or not
due, and, until so delivered, the same shall be held in trust by such
Subordinated Shareholder as property of the Agent. In the event of the
failure of such Subordinated Shareholder to make any such endorsement
or assignment, the Agent, or any of its officers or employees, are
hereby irrevocably authorized to make the same.
(c) Each Subordinated Shareholder agrees that it will not
transfer, assign, pledge or encumber the Subordinated Debt or any part
thereof or any instrument evidencing the same unless the respective
instrument of assignment specifically provides that the assignee takes
the Subordinated Debt subject to the provisions of this Agreement and
such assignee executes and delivers to the Agent an instrument in form
and substance satisfactory to the Agent pursuant to which such assignee
agrees to be bound by the provisions of this Agreement. From and after
the occurrence of any Default of which a Subordinated Shareholder has
or should reasonably be expected to have knowledge, and for so long as
the same shall be continuing, such Subordinated Shareholder agrees that
it will not exchange, forgive, waive or cancel the Subordinated Debt or
any part thereof or reduce the principal amount of the Subordinated
Debt in whole or in part.
(d) Without limiting the effect of any of the other provisions
hereof, during the continuance of any Default or Event of Default with
respect to any Obligation or any default in the payment of any
Obligation, no payment of principal, sinking fund, interest or premium
(or any other amount) shall be made on or with respect to the
Subordinated Debt or any renewals or extensions thereof.
3.04 Continuing Subordination, etc. The subordination effected by this
Agreement is a continuing subordination, and each Subordinated Shareholder, as
to itself only, hereby agrees that at any time and from time to time, without
notice to it:
(a) the time for the performance by the Borrower and the
Subsidiaries of the Borrower of or compliance with any of its
agreements contained in any of the Loan Documents may be extended or
such performance or compliance may be waived by the applicable Senior
Secured Parties;
4
388
(b) any of the acts mentioned in any of the Loan Documents may
be done;
(c) any of the Loan Documents may be amended for the purpose
of adding any provisions thereto or increasing the amount of, or
changing the terms of, the Senior Secured Obligations or changing in
any manner the rights of the Agent, any of the Senior Secured Parties,
the Borrower or the Subsidiaries of the Borrower thereunder;
(d) payment of any of the Senior Secured Obligations or any
portion thereof may be extended; and
(e) the maturity of any of the Senior Secured Obligations may
be accelerated, and any collateral security thereof may be exchanged,
sold, surrendered, released or otherwise dealt with, in accordance with
the terms of any of the Loan Documents or any other present or future
agreement between the Borrower, any Subsidiary of the Borrower and the
applicable Senior Secured Parties;
all without impairing or affecting the obligations of the Subordinated
Shareholders hereunder.
3.05 Waiver of Notice. Each Subordinated Shareholder hereby
unconditionally waives notice of the incurring of the Senior Secured Obligations
or any part thereof and reliance by any Senior Secured Party upon the
subordination of the Subordinated Debt to the Senior Secured Obligations.
3.06 Application of Payments. Whenever any payment or distribution
shall be paid or delivered to the Agent pursuant to the provisions of this
Section 3 for application on the Senior Secured Obligations, such payment or
distribution shall be applied by the Agent in accordance with the priorities set
forth in the Credit Agreement.
3.07 Subrogation. Subject to the prior indefeasible payment in full in
cash of the Senior Secured Obligations, the Subordinated Shareholders shall be
subrogated to the rights of the Agent and the Senior Secured Parties to receive
payments or distributions in cash, property or securities of the Borrower and
the Subsidiaries of the Borrower applicable to the Senior Secured Obligations
until all amounts owing on the Senior Secured Obligations shall be paid in full
in cash, and as between and among the Borrower, the Subsidiaries of the
Borrower, their creditors other than the Agent and the Senior Secured Parties,
and the Subordinated Shareholders, no such payment or distribution made to the
Agent or the Senior Secured Parties by virtue of this Agreement which otherwise
would have been made to the Subordinated Shareholders shall be deemed to be a
payment by the Borrower or any Subsidiary of the Borrower on account of the
Senior Secured Obligations, it being understood that the provisions of this
Section 3 are intended solely for the purpose of defining the relative rights of
the Subordinated Shareholders, the Agent and the Senior Secured Parties.
3.08 Certain Agreements. Each Subordinated Shareholder, as to itself
only, agrees that:
5
389
(a) all holders of Senior Secured Obligations, in determining
to acquire and retain Senior Secured Obligations, have relied upon the
subordination of the Subordinated Debt to the Senior Secured
Obligations as provided herein;
(b) promptly upon the written request of the Requisite
Creditors, such Subordinated Shareholder shall execute and deliver to
the Senior Secured Parties a written instrument by which such
Subordinated Shareholder affirms and agrees that the Subordinated Debt
is subordinated and junior in right of payment to such Senior Secured
Obligations on terms and conditions provided herein;
(c) promptly upon the written request of any holder of Senior
Secured Obligations, such Subordinated Shareholder shall take such
other action as may be reasonably requested by the Agent to protect the
rights of the Agent or effectuate the subordination provided herein;
and
(d) the Subordinated Debt shall not at any time be (i) secured
by any lien or security interest on property of the Borrower or any
Subsidiary of the Borrower or (ii) subordinated to any other
obligations, other than the Senior Secured Obligations.
Section 4. Miscellaneous.
4.01 Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the Commonwealth of Pennsylvania.
4.02 Notices. All notices, requests, demands, directions and other
communications (collectively "notices") given to or made upon any party under
the provisions of this Agreement shall be by telephone or in writing (including
facsimile communications) unless otherwise expressly provided under this
Agreement and if in writing shall be delivered or sent by facsimile to the
respective parties at the addresses and numbers set forth under their respective
names on the signature pages of this Agreement or in accordance with any
subsequent unrevoked written direction from any party to the others. All notices
shall, except as otherwise expressly provided in this Agreement, be effective
(a) in the case of facsimile, when received, (b) in the case of hand-delivered
notice, when hand delivered, (c) in the case of telephone, when telephoned,
provided, however, that in order to be effective, telephone notices must be
confirmed in writing no later than the next day by letter, facsimile or telex,
(d) if given by mail, four (4) days after such communication is deposited in the
mails with first class postage prepaid, return receipt requested, and (e) if
given by any other means (including by air courier), when delivered; provided,
that notices to the Agent shall not be effective until received. In the event of
a discrepancy between any telephonic or written notice, the written notice shall
control.
4.03 Arbitration; Consent to Jurisdiction, Service and Venue; Waiver of
Jury Trial.
(a) Arbitration.
(i) Upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any
claim or controversy arising out of, or relating to, this
Agreement between any or all of the parties hereto (a
6
390
"Dispute") shall be resolved by binding arbitration conducted
under and governed by the Commercial Financial Disputes
Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal
Arbitration Act. Disputes may include, without limitation,
tort claims, counterclaims, a dispute as to whether a matter
is subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A
judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to
Interest Rate Protection Agreements.
(ii) All arbitration hearings shall be conducted in
the City of Philadelphia, Commonwealth of Pennsylvania unless
otherwise agreed by all parties to such arbitration. A hearing
shall begin within 90 days of demand for arbitration and all
hearings shall conclude within 120 days of demand for
arbitration. These time limitations may not be extended unless
a party shows cause for extension and then for no more than a
total of 60 days. The expedited procedures set forth in Rule
51 et seq. of the Arbitration Rules shall be applicable to
claims of less than $1,000,000.00. Arbitrators shall be
licensed attorneys selected from the Commercial Financial
Dispute Arbitration Panel of the AAA. The parties do not waive
applicable Federal or state substantive law except as provided
herein.
(iii) Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without
diminution, certain remedies that any party may exercise
before or after an arbitration proceeding is brought. The
parties shall have the right to proceed in any court of proper
jurisdiction or by self-help to exercise or prosecute the
following remedies, as applicable: (a) all rights to foreclose
against any real or personal property or other security by
exercising a power of sale or under applicable law by judicial
foreclosure including a proceeding to confirm the sales; (b)
all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful
possession of personal property; and (c) obtaining provisional
or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of
receiver and filing of involuntary bankruptcy proceedings. Any
claim or controversy with regard to any party's entitlement to
such remedies is a Dispute.
(iv) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A
REMEDY OF SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY
DAMAGES AGAINST OTHER PARTIES IN ANY DISPUTE AND HEREBY WAIVE
ANY RIGHT OR CLAIM TO SPECIAL, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN THE
FUTURE IN CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS
RESOLVED BY ARBITRATION OR JUDICIALLY.
7
391
(b) Consent to Jurisdiction, Service and Venue; Waiver of Jury
Trial.
(i) With respect to any matters that may be heard
before a court of competent jurisdiction under paragraph (iii)
of the preceding subsection 4.03(a), the Borrower, the
Subsidiaries of the Borrower and the Subordinated Shareholders
each hereby consents to the jurisdiction and venue of the
courts of the Commonwealth of Pennsylvania or of any federal
court located in such state, waives personal service of any
and all process upon it and consents that all such service of
process be made by certified or registered mail directed to
the Borrower, such Subsidiary of the Borrower or such
Subordinated Shareholder at the address provided for in
Section 4.02 above and service so made shall be deemed to be
completed upon actual receipt. The Borrower, the Subsidiaries
of the Borrower and the Subordinated Shareholders each hereby
waives the right to contest the jurisdiction and venue of the
courts located in the County of Philadelphia, Commonwealth of
Pennsylvania on the ground of inconvenience or otherwise and,
further, waives any right to bring any action or proceeding
against (a) the Agent in any court outside the County of
Philadelphia, Commonwealth of Pennsylvania, or (b) any other
Senior Secured Party other than in a state within the United
States designated by such Senior Secured Party. The provisions
of this Section 4.03 shall not limit or otherwise affect the
right of the Agent, any Senior Secured Party or other Senior
Secured Party to institute and conduct an action in any other
appropriate manner, jurisdiction or court.
(ii) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE,
SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING
SHALL SEEK A JURY TRIAL IN ANY PROCEEDING BASED UPON OR
ARISING OUT OF THIS AGREEMENT, OR ANY OTHER LOAN DOCUMENT OR
ANY GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE RELATIONSHIP
BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE
AGENT NOR ANY SENIOR SECURED PARTY NOR THE BORROWER NOR ANY
SUBSIDIARY OF THE BORROWER NOR ANY SUBORDINATED SHAREHOLDER
NOR ANY OTHER PERSON WILL SEEK TO CONSOLIDATE ANY SUCH ACTION
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS
NOT BEEN WAIVED.
(iii) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH
(iv) OF THE PRECEDING SUBSECTION 4.03(a) EXCEPT AS PROHIBITED
BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY
HAVE TO CLAIM OR RECOVER IN ANY ARBITRATION OR OTHER
LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. EACH PARTY TO THIS AGREEMENT (i) CERTIFIES THAT
NEITHER THE AGENT NOR ANY REPRESENTATIVE, OR ATTORNEY OF THE
AGENT NOR ANY SENIOR SECURED PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE,
8
392
THAT THE AGENT OR SUCH SENIOR SECURED PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.03.
THE PROVISIONS OF THIS SECTION 4.03 HAVE BEEN FULLY DISCLOSED
TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED
TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 4.03
WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
4.04 Waivers, etc. The terms of this Agreement may be waived, altered
or amended only by an instrument in writing duly executed by the Subordinated
Shareholders and the Agent. Any such amendment or waiver shall be binding upon
all Senior Secured Parties and each other party to this Agreement.
4.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the
Subordinated Shareholders, the Borrower, the Subsidiaries of the Borrower, the
Agent and each of the Senior Secured Parties (provided, however, that the
Subordinated Shareholders, the Borrower and the Subsidiaries of the Borrower
shall not assign or transfer its rights or obligations hereunder without the
prior written consent of the Agent).
4.06 Counterparts. This Agreement may be executed in one or more
counterparts and all of such counterparts taken together shall constitute one
and the same instrument. A photocopied or facsimile copy of any signature page
to this Agreement shall be deemed to be the functional equivalent of a manually
executed original for all purposes.
9
393
IN WITNESS WHEREOF, the parties hereto have caused this Other
Shareholder Subordination Agreement to be duly executed as of the day and year
first above written.
BORROWER & SUBSIDIARIES: SUSQUEHANNA MEDIA CO.
SUSQUEHANNA CABLE CO.
SUSQUEHANNA CABLE INVESTMENT CO.
CABLE TV OF EAST PROVIDENCE, INC.
CASCO CABLE TELEVISION, INC.
CASCO CABLE TELEVISION OF BATH, MAINE
SBC CABLE CO.
YORK CABLE TELEVISION, INC.
SUSQUEHANNA RADIO CORP.
RADIO CINCINNATI, INC.
RADIO INDIANAPOLIS, INC.
RADIO METROPLEX, INC.
KPLX LICO, INC.
KPLX RADIO, INC.
KLIF BROADCASTING, INC.
XXXX XXXX, INC.
KLIF RADIO, INC.
RADIO SAN FRANCISCO, INC.
KFFG LICO, INC.
KRBE CO.
Signature Page to Other Shareholders Subordination Agreement
394
KNBR, INC.
BAY AREA RADIO CORP.
WSBA LICO, INC.
WVAE LICO, INC.
WNNX LICO, INC.
KNBR LICO, INC.
KRBE LICO, INC.
INDIANAPOLIS RADIO LICENSE CO.
TEXAS STAR RADIO, INC.
SUSQUEHANNA FIBER SYSTEMS, INC.
SUSQUEHANNA DATA SERVICES, INC.
MEDIA PCS VENTURES, INC.
INDY LICO, INC.
WRRM LICO, INC.
WFMS LICO, INC.
By: ____________________________________
Xxxx X. Xxxxxxx, on behalf of each of
the foregoing as Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
Signature Page to Other Shareholders Subordination Agreement
395
PARAGON RESEARCH LIMITED
PARTNERSHIP, by Susquehanna Radio Corp.,
its General Partner
KPLX LIMITED PARTNERSHIP, by KPLX
Radio, Inc., its General Partner
KLIF BROADCASTING LIMITED
PARTNERSHIP, by KLIF Radio, Inc., its
General Partner
By: ___________________________________
Xxxx X. Xxxxxxx on behalf of each of
the foregoing as Treasurer the
General Partner
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
Signature Page to Other Shareholders Subordination Agreement
396
AGENT: FIRST UNION NATIONAL BANK, in its capacity
as Agent
By: ____________________________________
Xxxxxxxxx Xxxxxx
Senior Vice President
Notice Information
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx, Senior Vice
President
Signature Page to Other Shareholders Subordination Agreement
397
SUBORDINATED SHAREHOLDERS:
__________________________________________
Xxxxxx X. Xxxxxx
Address: RFD #1, Xxx 00
Xxxxx Xxxxxxxxx, XX 00000
__________________________________________
Xxxxxx X. Xxxxxx, Trustee
of Xxxxx X. Xxxxxx Revocable Trust
U/D/T 12-17-87
Address: RFD #0, Xxx 00
Xxxxx Xxxxxxxxx, XX 00000
__________________________________________
Xxxxxx X. Xxxxxx, Trustee
U/D/T 12-31-80
Address: RFD #0, Xxx 00
Xxxxx Xxxxxxxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
398
__________________________________________
Xxxxx X. Xxxxxx, Trustee of
Xxxxx X. Xxxxxx Revocable Trust
U/D/T 12-17-87
Address: RFD #0, Xxx 00
Xxxxx Xxxxxxxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
399
__________________________________________
Xxxxx X. X. Xxxxxx, Trustee
U/D/T 6-18-80
Address:
__________________________________________
Xxxxx X. X. Xxxxxx, Trustee
of Xxxxxx X. Xxxxxx Revocable Trust
U/D/T 3/21/88
Address:
Signature Page to Other Shareholders Subordination Agreement
400
__________________________________________
Xxxxx X. Xxxxxx, Xx.
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
__________________________________________
Xxxxx X. Xxxxxx, Xx., Trustee
of Xxxxx X. Xxxxxx, Xx., Revocable Trust
U/D/T 1/29/88
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
401
__________________________________________
Xxxxx X. Xxxxxx, III
Address: 0000 Xxx Xxxxxxx Xxxxxxx
Xxxxx, XX 00000
__________________________________________
Xxxxx X. Xxxxxx, III, Trustee
U/D/T 12/31/79 f.b.o.
Xxxxx X. Xxxxxx, III
Address: 0000 Xxx Xxxxxxx Xxxxxxx
Xxxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
402
__________________________________________
Xxxxx X. Xxxxxx, XX
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
__________________________________________
Xxxxx X. Xxxxxx, XX, Trustee
U/D/T 12/31/79 f.b.o.
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
403
__________________________________________
Xxxxxxx X. Xxxxxx
Address: 000 X. Xxxxxxxx Xxxxxx
Xxxx, XX 00000
__________________________________________
Xxxxxxx X. Xxxxxx, Trustee
U/D/T 12/31/79 f.b.o.
Xxxxxxx X. Xxxxxx
Address: 000 X. Xxxxxxxx Xxxxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
404
__________________________________________
Xxxxxxxxx X. Xxxxxx, Trustee of
Xxxxx X. Xxxxxx, Xx. Revocable Trust
U/D/T 1/29/88
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
405
__________________________________________
Xxxxxx X. Xxxxxx, Trustee of
Xxxxxx X. Xxxxxx Revocable Trust
U/D/T 3/21/88
Address:
Signature Page to Other Shareholders Subordination Agreement
406
__________________________________________
Xxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
407
__________________________________________
Xxxxx Xxxxxx Xxxx, a/k/a Xxxxx X. Xxxxxx, XX
Address: 000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
408
__________________________________________
Xxxxxx X. Xxxxxx (Davis)
Address: XX 0, Xxx 000
Xxxxx Xxxxxxxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
409
__________________________________________
Xxxxx X. Xxxxxx
Address: RFD #1, Xxx 00
Xxxxx Xxxxxxxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
410
__________________________________________
Xxxxx Xxxxxx-Xxxxxx,
Trustee of Harrier Trust
U/D/T 3/21/88
Address: Xxxxxx Academy
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
411
__________________________________________
Xxxxx X. Xxxxxxxxx,
Trustee of Harrier Trust
U/D/T 3/21/88
Address: 000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
412
__________________________________________
Charity X. Xxxxxx (Xxxxxxxx)
Trustee of Harrier
Trust U/D/T 3/21/88
Address: Xxxxx 0, Xxx 00
Xxxxxxxxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
413
__________________________________________
Xxxxxxx X. Xxxxxxx, trustee
U/D/T 12/31/79 f.b.o.
Xxxxx X. Xxxxxx, III
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
__________________________________________
Xxxxxxx X. Xxxxxxx, trustee
U/D/T 12/31/79 f.b.o.
Xxxxx X. Xxxxxx, XX
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
__________________________________________
Xxxxxxx X. Xxxxxxx, trustee
U/D/T 12/31/79 f.b.o.
Xxxxxxx X. Xxxxxx
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Signature Page to Other Shareholders Subordination Agreement
414
AFFILIATE SUBORDINATION AGREEMENT
(Xxxxxxx)
AFFILIATE SUBORDINATION AGREEMENT (as same may be amended, modified or
supplemented from time to time, this "Agreement") dated as of May 12, 1999 among
XXXXXXX COMMUNICATIONS, INC. and XXXXXXX YORK, INC., each a Delaware corporation
(collectively "Xxxxxxx"), SUSQUEHANNA MEDIA CO., a Delaware corporation (the
"Borrower"), the Subsidiaries of the Borrower who execute this Agreement
(collectively, the "Subsidiaries of the Borrower"), and FIRST UNION NATIONAL
BANK, as agent (in such capacity, including successors and assigns, the
"Agent"), appointed pursuant to a certain Credit Agreement dated as of even date
(as such term is hereinafter defined) among (i) the Borrower, (ii) the Senior
Secured Parties (as defined in Credit Agreement), and (iii) the Agent.
Background
On the date hereof certain lenders and issuers of letters of credit and
FIRST UNION NATIONAL BANK as Agent have entered into a Credit Agreement (as
amended, extended, supplemented, restated or otherwise modified or refinanced,
including without limitation any amendment involving an increase in principal,
interest rate or other amount, the "Credit Agreement") with the Borrower
pursuant to which such lenders and issuers agreed to lend certain sums to the
Borrower upon the terms and conditions specified in the Credit Agreement under
(1) a revolving credit facility with a swing loan subfacility, and (2) two
separate term loan facilities, and to issue, or participate in the issuance of,
certain Letters of Credit. In addition, the Credit Agreement currently requires
under certain conditions the Borrower to enter into Interest Rate Hedging
Agreements.
To induce the Lenders (as defined in the Credit Agreement) to enter
into the Credit Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Xxxxxxx, the Borrower,
the Subsidiaries of the Borrower, and the Agent wish to enter into this
Agreement pursuant to which Xxxxxxx, the Borrower, and the Subsidiaries of the
Borrower will agree that certain obligations of the Borrower and the
Subsidiaries of the Borrower to Xxxxxxx shall be subordinate in right of payment
to the Senior Secured Obligations (as defined in the Credit Agreement).
Accordingly, Xxxxxxx, the Borrower, the Subsidiaries of the Borrower, and the
Agent, intending to be legally bound, hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Credit Agreement. The
following terms shall have the meanings set forth below:
"Debtor" shall mean the Borrower and/or the Subsidiaries of the
Borrower.
415
"Xxxxxxx Debt" shall mean all indebtedness, whether principal or
interest, and other obligations from time to time owing by the Borrower or any
of the Subsidiaries of the Borrower to Xxxxxxx, provided, however, that Xxxxxxx
Debt shall not include obligations of the Borrower or any of the Subsidiaries of
the Borrower to Xxxxxxx in respect of Xxxxxxx Programming Payments (as defined
in the Credit Agreement).
Section 2. Representations and Warranties. Each Person included in the
definition of Xxxxxxx under this Agreement jointly and severally represents and
warrants to the Agent for the benefit of the Senior Secured Parties that:
2.01 Existence. Each Person included in the definition of Xxxxxxx under
this Agreement is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware.
2.02 Authority. The making and performance by Xxxxxxx of this Agreement
has been duly authorized by all necessary corporate action and does not and will
not violate any provision of law, rules, regulations, or orders or any provision
of the charter or bylaws of Xxxxxxx or result in the breach of, or constitute a
default or require any consent (other than consents which have been obtained)
under, any indenture or other agreement or instrument by which Xxxxxxx may be
bound or affected. This Agreement has been duly and validly executed and
delivered by Xxxxxxx and constitutes the legal, valid and binding obligation of
Xxxxxxx enforceable in accordance with its terms, subject as to enforceability
(a) to bankruptcy, insolvency, reorganization or moratorium and other similar
laws affecting creditor's rights generally and (b) to the application of general
principles of equity (regardless of whether considered in a proceeding in equity
or at law).
2.03 Approvals. No approval or consent of, or filing or registration
with, any state or federal commission or other federal, state or local
regulatory or governmental authority is required in connection with the
execution, delivery and performance by Xxxxxxx of this Agreement.
Section 3. Subordination Provisions. It is intended by the Agent and
the Senior Secured Parties that the subordination provisions contained in this
Agreement shall benefit the Agent and the Senior Secured Parties equally (in
priority) and ratably, and that the Xxxxxxx Debt and the payment thereof shall
be subordinate to the Senior Secured Obligations. To implement the foregoing
(but without limiting the generality thereof as it may apply to other provisions
of this Agreement), each Person included in the definition of Xxxxxxx under this
Agreement, jointly and severally, agrees as follows:
3.01 Subordination. Xxxxxxx hereby agrees that, except as and to the
extent hereinafter provided, the Xxxxxxx Debt is and shall be subordinate and
subject in right of payment to the prior payment in full of all of the Senior
Secured Obligations, whether or not such Senior Secured Obligations have been
voided, disallowed or subordinated pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code or any applicable state fraudulent conveyance laws, whether
asserted directly or under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code.
Without limiting the foregoing, Xxxxxxx also hereby agrees that, (a) except as
otherwise provided in Section 3.02 of this Agreement, it will not ask, demand,
xxx for, take or receive from the Borrower or any Subsidiary of the Borrower
(other than directing the Borrower or such Subsidiary of the Borrower to make
-2-
416
payment directly to the holders of the Senior Secured Obligations for the
purpose of causing the Senior Secured Obligations to be paid), by set-off or in
any other manner, payment of the whole or any part of the Xxxxxxx Debt, or any
security therefor, and (b) it will not accelerate all or any portion of the
Xxxxxxx Debt or otherwise implement any remedy it may have in respect of the
Xxxxxxx Debt (provided that Xxxxxxx may accelerate the Xxxxxxx Debt if all
outstanding Senior Secured Obligations shall have been previously accelerated),
in each case unless and until all of the Senior Secured Obligations shall have
been fully, finally and indefeasibly paid in cash, whether or not such Senior
Secured Obligations have been voided, disallowed or subordinated pursuant to
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any applicable state
fraudulent conveyance laws, whether asserted directly or under Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Bankruptcy Code. Xxxxxxx hereby irrevocably directs the
Borrower and the Subsidiaries of the Borrower to make such prior payment.
Xxxxxxx further agrees that it will not institute against the Borrower or the
Subsidiaries of the Borrower any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law until such time as the Senior
Secured Obligations have been fully, finally and indefeasibly paid in cash.
3.02 Certain Payments Permitted. So long as no Potential Event of
Default or Event of Default has occurred and is continuing, and only to the
extent not prohibited by the provisions of any of the Loan Documents, Xxxxxxx
may from time to time receive from the Borrower or the Subsidiaries of the
Borrower payments of the Xxxxxxx Debt, provided, however, for the purpose of
determining whether payments may be made under the Xxxxxxx Note only, no Event
of Default shall be deemed to have occurred for purposes of this Section 3.02 if
the only Event of Default is the cross-default to the Xxxxxxx Note and no other
Event of Default or Potential Event of Default shall have then occurred and be
continuing or would be caused thereby.
3.03 Distributions, etc. In furtherance of, and to make effective, the
subordination provided for herein, Xxxxxxx further agrees as follows:
(a) In the event of any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the assets of the Borrower or any of
the Subsidiaries of the Borrower or the proceeds thereof, to creditors
of the Borrower or any of the Subsidiaries of the Borrower by reason of
(1) the liquidation, dissolution or other winding up, partial or
complete, of the Borrower or any of the Subsidiaries of the Borrower or
the business of the Borrower or any of the Subsidiaries of the
Borrower, (2) any receivership, insolvency or bankruptcy proceeding, or
assignment for the benefit of creditors, or (3) any proceeding by or
against the Borrower or any of the Subsidiaries of the Borrower for any
relief under any bankruptcy or insolvency law or laws relating to the
relief of debtors, readjustment of indebtedness, arrangements,
reorganizations, compositions or extensions, then and in any such
event:
(i) any payment or distribution of any kind or
character, whether in cash, securities or other property which
but for this Agreement would be payable or deliverable upon or
with respect to any or all of the Xxxxxxx Debt, shall instead
be paid or delivered directly to the Agent for application to
the Senior Secured Obligations, whether then due or not due,
until the Senior Secured Obligations shall have first been
fully, finally and indefeasibly paid in cash and satisfied;
and
-3-
417
(ii) Xxxxxxx hereby irrevocably authorizes and
empowers the Agent to demand, xxx for, collect and receive
every such payment or distribution and give acquittance
therefor, and to file and/or vote claims and take such other
proceedings, in the Agent's own name or in the name of
Xxxxxxx, or otherwise, as the Agent may deem necessary or
advisable for the enforcement of this Agreement (including,
without limitation, the filing of any proof of claim in
respect of the Xxxxxxx Debt in any bankruptcy or insolvency
proceeding of the Borrower or of any Subsidiary of the
Borrower). In furtherance of the foregoing, Xxxxxxx agrees
duly and promptly to take such action as may be reasonably
requested by the Agent to assist in the collection of the
Xxxxxxx Debt for the account of the Agent and/or to file
appropriate proofs of claim in respect of the Xxxxxxx Debt,
and to execute and deliver to the Agent on demand such powers
of attorney, proofs of claim, assignments of claim or other
instruments as may be reasonably requested by the Agent to
enable the Agent to enforce any and all claims upon or with
respect to the Xxxxxxx Debt, and to collect and receive any
and all payments or distributions which may be payable or
deliverable at any time upon or with respect to the Xxxxxxx
Debt.
(b) If any payment, distribution of security or proceeds of
any security are received by Xxxxxxx upon or in respect of the Xxxxxxx
Debt in contravention of the provisions hereof, Xxxxxxx will forthwith
deliver the same to the Agent in precisely the form received (except
for the endorsement or assignment of Xxxxxxx where necessary), for
application to the Senior Secured Obligations, whether then due or not
due, and, until so delivered, the same shall be held in trust by
Xxxxxxx as property of the Agent. In the event of the failure of
Xxxxxxx to make any such endorsement or assignment, the Agent, or any
of its officers or employees, are hereby irrevocably authorized to make
the same.
(c) Xxxxxxx agrees that it will not transfer, assign, pledge
or encumber the Xxxxxxx Debt or any part thereof or any instrument
evidencing the same unless the respective instrument of assignment
specifically provides that the assignee takes the Xxxxxxx Debt subject
to the provisions of this Agreement and such assignee executes and
delivers to the Agent an instrument in form and substance satisfactory
to the Agent pursuant to which such assignee agrees to be bound by the
provisions of this Agreement. From and after the occurrence of any
Default of which Xxxxxxx has or should reasonably be expected to have
knowledge, and for so long as the same shall be continuing, Xxxxxxx
agrees that it will not exchange, forgive, waive or cancel the Xxxxxxx
Debt or any part thereof or reduce the principal amount of the Xxxxxxx
Debt in whole or in part.
(d) Without limiting the effect of any of the other provisions
hereof, during the continuance of any Default or Event of Default with
respect to any Obligation or any default in the payment of any
Obligation, no payment of principal, sinking fund, interest or premium
(or any other amount) shall be made on or with respect to the Xxxxxxx
Debt or any renewals or extensions thereof.
-4-
418
3.04 Continuing Subordination, etc. The subordination effected by this
Agreement is a continuing subordination, and Xxxxxxx hereby agrees that at any
time and from time to time, without notice to it:
(a) the time for the performance by the Borrower and the
Subsidiaries of the Borrower of or compliance with any of its
agreements contained in any of the Loan Documents may be extended or
such performance or compliance may be waived by the applicable Senior
Secured Parties;
(b) any of the acts mentioned in any of the Loan Documents may
be done;
(c) any of the Loan Documents may be amended for the purpose
of adding any provisions thereto or increasing the amount of, or
changing the terms of, the Senior Secured Obligations or changing in
any manner the rights of the Agent, any of the Senior Secured Parties,
the Borrower or the Subsidiaries of the Borrower thereunder;
(d) payment of any of the Senior Secured Obligations or any
portion thereof may be extended; and
(e) the maturity of any of the Senior Secured Obligations may
be accelerated, and any collateral security thereof may be exchanged,
sold, surrendered, released or otherwise dealt with, in accordance with
the terms of any of the Loan Documents or any other present or future
agreement between the Borrower, any Subsidiary of the Borrower and the
applicable Senior Secured Parties;
all without impairing or affecting the obligations of Xxxxxxx hereunder.
3.05 Waiver of Notice. Xxxxxxx hereby unconditionally waives notice of
the incurring of the Senior Secured Obligations or any part thereof and reliance
by any Senior Secured Party upon the subordination of the Xxxxxxx Debt to the
Senior Secured Obligations.
3.06 Application of Payments. Whenever any payment or distribution
shall be paid or delivered to the Agent pursuant to the provisions of this
Section 3 for application on the Senior Secured Obligations, such payment or
distribution shall be applied by the Agent in accordance with the priorities set
forth in the Credit Agreement.
3.07 Subrogation. Subject to the prior indefeasible payment in full in
cash of the Senior Secured Obligations, Xxxxxxx shall be subrogated to the
rights of the Agent and the Senior Secured Parties to receive payments or
distributions in cash, property or securities of the Borrower and the
Subsidiaries of the Borrower applicable to the Senior Secured Obligations until
all amounts owing on the Senior Secured Obligations shall be paid in full in
cash, and as between and among the Borrower, the Subsidiaries of the Borrower,
their creditors other than the Agent and the Senior Secured Parties, and
Xxxxxxx, no such payment or distribution made to the Agent or the Senior Secured
Parties by virtue of this Agreement which otherwise would have been made to
Xxxxxxx shall be deemed to be a payment by the Borrower or any Subsidiary of the
Borrower on account of the Senior Secured Obligations, it being understood that
the provisions of this Section 3 are
-5-
419
intended solely for the purpose of defining the relative rights of Xxxxxxx, the
Agent and the Senior Secured Parties.
3.08 Certain Agreements. Xxxxxxx agrees that:
(a) all holders of Senior Secured Obligations, in determining
to acquire and retain Senior Secured Obligations, have relied upon the
subordination of the Xxxxxxx Debt to the Senior Secured Obligations as
provided herein;
(b) promptly upon the written request of the Requisite
Creditors, Xxxxxxx shall execute and deliver to the Senior Secured
Parties a written instrument by which Xxxxxxx affirms and agrees that
the Xxxxxxx Debt is subordinated and junior in right of payment to such
Senior Secured Obligations on terms and conditions provided herein;
(c) promptly upon the written request of any holder of Senior
Secured Obligations, Xxxxxxx shall (at the expense of the Borrower)
take such other action as may be reasonably requested by the Agent to
protect the rights of the Agent or effectuate the subordination
provided herein; and
(d) other than the second priority lien securing the Xxxxxxx
Note, the Xxxxxxx Debt shall not at any time be (i) secured by any lien
or security interest on property of the Borrower or any Subsidiary of
the Borrower or (ii) subordinated to any other obligations, other than
the Senior Secured Obligations.
Section 4. Miscellaneous.
4.01 Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the Commonwealth of Pennsylvania.
4.02 Notices. All notices, requests, demands, directions and other
communications (collectively "notices") given to or made upon any party under
the provisions of this Agreement shall be by telephone or in writing (including
facsimile communications) unless otherwise expressly provided under this
Agreement and if in writing shall be delivered or sent by facsimile to the
respective parties at the addresses and numbers set forth under their respective
names on the signature pages of this Agreement or in accordance with any
subsequent unrevoked written direction from any party to the others. All notices
shall, except as otherwise expressly provided in this Agreement, be effective
(a) in the case of facsimile, when received, (b) in the case of hand-delivered
notice, when hand delivered, (c) in the case of telephone, when telephoned,
provided, however, that in order to be effective, telephone notices must be
confirmed in writing no later than the next day by letter, facsimile or telex,
(d) if given by mail, four (4) days after such communication is deposited in the
mails with first class postage prepaid, return receipt requested, and (e) if
given by any other means (including by air courier), when delivered; provided,
that notices to the Agent shall not be effective until received. In the event of
a discrepancy between any telephonic or written notice, the written notice shall
control.
-6-
420
4.03 Arbitration; Consent to Jurisdiction, Service and Venue; Waiver of
Jury Trial.
(a) Arbitration.
(i) Upon demand of any party hereto, whether made before or
after institution of any judicial proceeding, any claim or controversy
arising out of, or relating to, this Agreement between any or all of
the parties hereto (a "Dispute") shall be resolved by binding
arbitration conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act.
Disputes may include, without limitation, tort claims, counterclaims, a
dispute as to whether a matter is subject to arbitration, claims
brought as class actions, or claims arising from documents executed in
the future. A judgment upon the award may be entered in any court
having jurisdiction. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to Interest Rate
Protection Agreements.
(ii) All arbitration hearings shall be conducted in the City
of Philadelphia, Commonwealth of Pennsylvania unless otherwise agreed
by all parties to such arbitration. A hearing shall begin within 90
days of demand for arbitration and all hearings shall conclude within
120 days of demand for arbitration. These time limitations may not be
extended unless a party shows cause for extension and then for no more
than a total of 60 days. The expedited procedures set forth in Rule 51
et seq. of the Arbitration Rules shall be applicable to claims of less
than $1,000,000.00. Arbitrators shall be licensed attorneys selected
from the Commercial Financial Dispute Arbitration Panel of the AAA. The
parties do not waive applicable Federal or state substantive law except
as provided herein.
(iii) Notwithstanding the preceding binding arbitration
provisions, the parties agree to preserve, without diminution, certain
remedies that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to proceed in
any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as applicable: (a) all rights to
foreclose against any real or personal property or other security by
exercising a power of sale or under applicable law by judicial
foreclosure including a proceeding to confirm the sales; (b) all rights
of self-help including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of personal
property; and (c) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment
of receiver and filing of involuntary bankruptcy proceedings. Any claim
or controversy with regard to any party's entitlement to such remedies
is a Dispute.
-7-
421
(iv) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A REMEDY OF
SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER
PARTIES IN ANY DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TO SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY
ARISE IN THE FUTURE IN CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE
IS RESOLVED BY ARBITRATION OR JUDICIALLY.
(b) Consent to Jurisdiction, Service and Venue; Waiver of Jury Trial.
(i) With respect to any matters that may be heard before a
court of competent jurisdiction under paragraph (iii) of the preceding
subsection 4.03(a), Xxxxxxx, the Borrower and the Subsidiaries of the
Borrower each hereby consents to the jurisdiction and venue of the
courts of the Commonwealth of Pennsylvania or of any federal court
located in such state, waives personal service of any and all process
upon it and consents that all such service of process be made by
certified or registered mail directed to the Xxxxxxx, the Borrower or
such Subsidiary of the Borrower at the address provided for in Section
4.02 above and service so made shall be deemed to be completed upon
actual receipt. Xxxxxxx, the Borrower and the Subsidiaries of the
Borrower each hereby waives the right to contest the jurisdiction and
venue of the courts located in the County of Philadelphia, Commonwealth
of Pennsylvania on the ground of inconvenience or otherwise and,
further, waives any right to bring any action or proceeding against (a)
the Agent in any court outside the County of Philadelphia, Commonwealth
of Pennsylvania, or (b) any other Senior Secured Party other than in a
state within the United States designated by such Senior Secured Party.
The provisions of this Section 4.03 shall not limit or otherwise affect
the right of the Agent, any Senior Secured Party or other Senior
Secured Party to institute and conduct an action in any other
appropriate manner, jurisdiction or court.
(ii) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE, SUCCESSOR,
HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY
TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR
ANY OTHER LOAN DOCUMENT OR ANY GUARANTY RELATING TO SUCH INDEBTEDNESS
OR THE RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM.
NEITHER THE AGENT NOR ANY SENIOR SECURED PARTY NOR XXXXXXX NOR THE
BORROWER NOR ANY SUBSIDIARY OF THE BORROWER NOR ANY OTHER PERSON WILL
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
(iii) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH (iv) OF THE
PRECEDING SUBSECTION 4.03(a) EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO
THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY
ARBITRATION OR OTHER LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY
OR
-8-
422
PUNITIVE DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. EACH PARTY TO THIS AGREEMENT (i) CERTIFIES THAT NEITHER THE
AGENT NOR ANY REPRESENTATIVE, OR ATTORNEY OF THE AGENT NOR ANY SENIOR
SECURED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT
OR SUCH SENIOR SECURED PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 4.03. THE PROVISIONS OF THIS SECTION 4.03 HAVE BEEN FULLY
DISCLOSED TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 4.03 WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
4.04 Waivers, etc. The terms of this Agreement may be waived, altered
or amended only by an instrument in writing duly executed by Xxxxxxx and the
Agent. Any such amendment or waiver shall be binding upon all Senior Secured
Parties and each other party to this Agreement.
4.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of Xxxxxxx, the
Borrower, the Subsidiaries of the Borrower, the Agent and each of the Senior
Secured Parties (provided, however, that Xxxxxxx, the Borrower and the
Subsidiaries of the Borrower shall not assign or transfer its rights or
obligations hereunder without the prior written consent of the Agent).
4.06 Counterparts. This Agreement may be executed in one or more
counterparts and all of such counterparts taken together shall constitute one
and the same instrument. A photocopied or facsimile copy of any signature page
to this Agreement shall be deemed to be the functional equivalent of a manually
executed original for all purposes.
4.07 Joint and Several Obligations. Unless the context specifically
otherwise requires, all references herein to, and all obligations of Xxxxxxx
hereunder, shall refer to and be joint and several obligations of each of the
Persons included in the definition of Xxxxxxx under this Agreement.
-9-
423
IN WITNESS WHEREOF, the parties hereto have caused this
Affiliate Subordination Agreement (Xxxxxxx) to be duly executed as of the day
and year first above written.
Xxxxxxx:
XXXXXXX COMMUNICATIONS, INC.
By:
----------------------------------------
Name:
Title:
XXXXXXX YORK, INC.
By:
----------------------------------------
Name:
Title:
Notice Information
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: X. X. Xxxxxxx, President
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Signature Page to Xxxxxxx Affiliate Subordination Agreement
424
BORROWER:
SUSQUEHANNA MEDIA CO.
SUBSIDIARIES:
SUSQUEHANNA CABLE CO.
SUSQUEHANNA CABLE
INVESTMENT CO.
CABLE TV OF EAST PROVIDENCE, INC.
CASCO CABLE TELEVISION, INC.
CASCO CABLE TELEVISION OF BATH, MAINE
SBC CABLE CO.
YORK CABLE TELEVISION, INC.
By:
--------------------------------------
Xxxx X. Xxxxxxx, on behalf of each
of the foregoing as Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esquire
Signature Page to Xxxxxxx Affiliate Subordination Agreement
425
FIRST UNION NATIONAL BANK, in its
capacity as Agent
By:
------------------------------------
Xxxxxxxxx Xxxxxx
Senior Vice President
Notice Information
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx, Senior
Vice President
Signature Page to Xxxxxxx Affiliate Subordination Agreement
426
TRADEMARK COLLATERAL AGREEMENT
This TRADEMARK COLLATERAL AGREEMENT is made as of the 12th day of May,
1999 by SUSQUEHANNA MEDIA CO., a Delaware corporation (the "Borrower"), all of
its Subsidiaries, each of which is a signatory hereto, the Borrower's parent
Susquehanna Pfaltzgraff Co., Inc. ("Parent") and their successors and assigns
(collectively with the Borrower, the "Assignors"), to and in favor of FIRST
UNION NATIONAL BANK, a national banking association, for itself and as Agent
(hereinafter referred to, with its successors and assignees, as the "Assignee")
for the Senior Secured Parties (as defined in the Credit Agreement referred to
below).
BACKGROUND
WHEREAS, the Assignors are the owner of certain trademarks, service
marks and tradenames;
WHEREAS, pursuant to a Credit Agreement (as amended, extended,
supplemented, restated or otherwise modified or refinanced, including without
limitation, any amendment involving an increase in principal, interest rate or
other amount, the "Credit Agreement") of even date herewith, by and among
Borrower, the Assignee, and certain lenders and issuers of letters of credit (as
defined in the Credit Agreement, the "Lenders") for which the Assignee is acting
as Agent, the Lenders are making available to the Borrower (and through the
Borrower, its Subsidiaries), certain credit facilities (the "Credit
Facilities");
WHEREAS, all capitalized terms used herein and not otherwise defined
shall have the meanings ascribed thereto in the Credit Agreement;
WHEREAS, each of the Assignors (other than the Borrower itself, and the
Parent) is a Subsidiary of the Borrower. The Assignors, wishing to induce the
Lenders to enter into the financings described above to enable the Borrower to
(among other things) make loans to its Subsidiaries, and the Assignors having
determined that they can obtain their borrowings more economically by combining
their financing needs into a single borrowing unit on the parent company level,
borrowing funds from institutional lenders on that basis, and then entering into
the requisite intercompany financings, the Subsidiaries have agreed to grant the
liens set forth below in order to facilitate such financings. Each Assignor
determined that it was in its best interests and in pursuance of its business
purposes that it do so and that it was and will be Solvent before and after
giving effect to the transactions contemplated by the Credit Agreement; and
WHEREAS, the Lenders are willing to make the Credit Facilities
available pursuant to the Credit Agreement only upon the condition that all of
the Borrower's Subsidiaries guarantee all of the Senior Secured Obligations (as
defined in the Credit Agreement) and that each Assignor creates and grants to
the Assignee for the benefit of the Senior Secured Parties security
427
interests in substantially all assets of the Assignor as security for the
payment, performance of and compliance with all of the Senior Secured
Obligations contained in the Credit Agreement or the other Loan Documents;
NOW, THEREFORE, for and in consideration of the credit extended by the
Lenders under the Credit Agreement, and intending to be legally bound hereby,
each Assignor hereby covenants and agrees as follows, jointly and severally:
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in, or by reference in, the Credit Agreement or
(except for the definition of "Proceeds" which is defined more broadly herein
than in the Uniform Commercial Code) in the Uniform Commercial Code, as
applicable. The following terms shall have the following meanings:
"Proceeds" shall have the meaning assigned to such term under the
Uniform Commercial Code and, in any event, shall also include without limitation
(i) any and all proceeds of any guarantee, insurance or indemnity payable to the
Assignee from time to time with respect to any of the Marks; (ii) any and all
payments (in any form whatsoever) made or due and payable to the Assignee from
time to time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Marks by any governmental
authority (or any person acting under color of governmental authority); (iii)
all proceeds of any sale or other disposition of any of the Marks and of any of
the assets, properties and rights described in the definition of "Marks" whether
or not the lien therein purportedly granted hereunder is valid or attaches or is
perfected; and (iv) any and all other amounts from time to time paid or payable
with respect to or in connection with any of the Marks.
"Uniform Commercial Code" shall mean the Uniform Commercial Code, as
amended, as is in effect in the Commonwealth of Pennsylvania or in any
applicable state, as the case may be.
2. Security Agreement and Collateral Assignment.
2.1 Grant.
(a) To secure the complete and timely payment, performance and
satisfaction of all of the Senior Secured Obligations, each Assignor hereby
pledges and grants to the Assignee a security interest in each and all of the
following, whether now or hereafter existing, arising or created (collectively,
the "Marks"):
(i) all present and future trademarks, service marks,
tradenames, logos and other distinctive indicia which are, have been or may
hereafter be adopted or used by such Assignor, including, without limitation,
those now or hereafter listed in Schedule 2.1 hereto;
(ii) all actual or potential applications, registrations,
affidavits, renewals, divisions, continuations or extensions thereof;
-2-
428
(iii) all goodwill associated therewith;
(iv) all rights to xxx for past, present and future
infringements thereof;
(v) all rights owned by the Assignor corresponding or relating
thereto throughout the world; and
(vi) all Proceeds thereof (such as, by way of example and not
by way of limitation, license royalties and proceeds of infringement suits).
(b) Notwithstanding anything to the contrary contained in
subsection (a) (i) above, and Section 2.2 below, Parent is granting a security
interest only in the Marks specifically listed in Schedule 2.1 hereto.
2.2 Future Marks. If, before the Senior Secured Obligations shall have
been finally satisfied in full, any Assignor or any other Subsidiary shall adopt
or use or obtain any other Xxxx, then the provisions of this Section 1 shall
automatically apply thereto, and the Assignors shall give to the Assignee prompt
notice thereof in writing. Each Assignor hereby irrevocably authorizes the
Assignee to modify this Agreement by amending Schedule 2.1 hereto to include any
future Xxxx.
2.3 Notice. Each Assignor agrees that simultaneously with the execution
of this Agreement, and upon any amendment of Schedule 2.1, such Assignor shall
execute the form of Notice appended hereto as Exhibit 2.3 (each, a "Notice")
with respect to each Xxxx, now owned or hereafter acquired, and shall deliver it
to Assignee for recording in the Patent and Trademark Office so as to record
formally this Agreement.
2.4 Negative Pledge. Except for assignments and transfers among
Subsidiaries (in any case subject to the execution by the transferee of this
Agreement, a Notice, appropriate financing statements and other documentation
necessary for the Assignee's liens in the Marks to be continuously valid and
perfected) or as permitted under the terms of the Credit Agreement, each
Assignor agrees that it (a) will not assign, transfer, sell, hypothecate or
encumber any Xxxx; (b) will not take any action, nor enter into any license,
royalty, assignment or other agreement which is inconsistent with such
Assignor's obligations under this Agreement, or which has the effect of reducing
the distinctiveness of the Marks; and (c) will give the Assignee thirty (30)
days prior written notice of any proposed license, royalty, assignment or other
agreement.
2.5 Continuing Security Interest. This Agreement shall create a
continuing security interest in the Marks and shall (i) remain in full force and
effect until terminated pursuant to Section 2.6 below, (ii) be binding upon each
Assignor, its successors and assigns, and (iii) inure to the benefit of the
Assignee, the other Senior Secured Parties and their respective successors,
transferees and assigns, provided, however, that no Assignor shall be permitted
to transfer or delegate any of its obligations hereunder.
2.6 Release of Marks.
-3-
429
(a) Termination of Agreement. At such time as (i) the Senior
Secured Parties have no obligation to make further loans or extensions of credit
under the Credit Agreement to the Borrower or any Subsidiary and (ii) all the
Senior Secured Obligations have been indefeasibly paid and/or performed in full,
then this Agreement shall terminate and the lien thereof shall be released,
provided that if at the time of the payment in full of the Senior Secured
Obligations (a) such payment and performance is not subject to any filed or
threatened claim, contest, avoidance or offset of any kind whatsoever, (b) the
chief financial officer of the Borrower so certifies in writing to the Assignee,
and (c) the Borrower supplies to the Assignee such valuations, information,
evidence, certifications and opinions as Assignee may request in connection
therewith, this Agreement shall terminate upon satisfaction of the conditions in
clauses (i) and (ii) above without giving effect to the requirement that the
payment in full be indefeasible. Upon such termination, the Assignee shall
promptly execute and deliver to the Assignors all instruments as may be
necessary or proper to fully release the security interest pledged and granted
hereunder, subject to any disposition thereof which may have been made by the
Assignee pursuant hereto.
(b) Partial Release of Marks. There shall be a partial release
of the Marks under the any of following circumstances: (i) as a court of
competent jurisdiction may direct; (ii) in connection with a disposition (other
than to an Assignor) permitted under subsection 7.7.2 of the Credit Agreement or
as otherwise provided under the Loan Documents, (iii) if in accordance with the
Credit Agreement cash proceeds from any sale or transfer of the collateral are
used to prepay outstanding sums due under the Loan or are reinvested in the
Borrower and its Subsidiaries, and (iv) if such collateral security is of little
or no value as certified by the Borrower in a written statement requesting such
release. The Agent shall thereupon promptly execute and deliver to the
applicable Assignor all instruments as may be necessary or proper to release the
security interest in such Marks, subject to any disposition thereof which may
have been made by the Assignee pursuant thereto.
2.7 Further Assurances. At any time and from time to time, upon request
of the Assignee and at the sole expense of the Assignors, the Assignors will
give, execute, file, transfer and record any further notice, financing
statement, continuation statement, instrument, document or agreement that the
Assignee may consider necessary or desirable to create, preserve, continue,
perfect, charge or validate the security interest pledged and granted hereunder
or which the Assignee may consider necessary, convenient or desirable to
exercise or enforce its rights hereunder with respect to such security interest.
3. Parties and Secured Obligations.
3.1 Senior Secured Parties. "Senior Secured Parties" shall have the
meaning assigned to it in the Credit Agreement and include the Assignee (whether
in its capacity as Agent under the Credit Agreement, as the Assignee under this
Agreement or otherwise). It is understood and agreed by the parties hereto that
the security interests in the Marks granted to and created by this Agreement
shall be for the benefit of each Senior Secured Party. Each of the rights,
privileges and remedies accorded the Senior Secured Parties under this Agreement
or otherwise by statute or at law or in equity with respect to the Marks may be
exercised by the Senior Secured Parties.
-4-
430
Any Marks held or recovered at any time by any of the Senior Secured Parties or
any realization on account thereof shall inure to the benefit of the Senior
Secured Parties.
3.2 Joinder. The Assignors shall cause each additional Subsidiary,
hereafter formed or acquired, and whether directly or indirectly owned, and
having rights in any Marks, to sign and join in this Agreement by execution of a
Joinder in the form attached hereto as Exhibit 3.2, and thereafter each such
Subsidiary shall be deemed an Assignor, subject to all obligations of an
Assignor hereunder.
4. Representations and Covenants with Respect to Marks.
4.1 Representations. Each Assignor hereby represents and warrants, now
and automatically upon each amendment of Schedule 2.1, that:
(a) as indicated on Schedule 2.1, each Assignor is the sole and
exclusive owner of the entire and unencumbered right, title and interest in the
Marks, free and clear of any liens, charges and encumbrances except for those
created hereunder; and Schedule 2.1 is complete and correct and lists all Marks
owned by any Assignor;
(b) each Assignor has the unqualified right to enter into this
Agreement and perform its terms, and the agreements and assignments herein
provided are and shall be the legal, valid, binding and enforceable obligations
of the Assignors subject only to bankruptcy, insolvency and similar laws
affecting creditors rights;
(c) upon execution and filing of each Notice, the Assignee, for the
benefit of the Senior Secured Parties, shall have a valid first priority lien
and security interest on each of the Marks, securing the Senior Secured
Obligations;
(d) there are no infringement actions filed or, to the knowledge of
any Assignor, threatened against the Marks, and to the Assignors' knowledge, no
person is engaging in any activity that in any way infringes upon any Xxxx;
(e) to the knowledge of the Assignors, the Marks are all valid,
subsisting and enforceable; and
(f) to the Assignors' knowledge, there are no other users of the
Marks or variations thereof that are similar enough to the Marks hereby
assigned, with due regard to goods and services with which the respective Marks
are used, as to be likely to cause confusion or mistake among consumers.
4.2 Conduct of Business; Quality Control. To preserve and protect the
goodwill associated with the Marks, the Assignors covenant that they shall
maintain the quality of the products and services sold under or in connection
with the Marks and shall not at any time permit any impairment of the quality of
such products and services, and will provide the Assignee from time to time with
a certificate to such effect signed by an officer of the Assignor upon request.
-5-
431
The Assignors shall do any and all acts reasonably required by the Assignee to
ensure the Assignors' compliance with this Section.
4.3 Indemnification. Without limiting the generality of any
indemnifications provided in the Credit Agreement or other Loan Documents, the
Assignors shall (jointly and severally) indemnify, defend and hold harmless the
Assignee and each of the Senior Secured Parties, and each of their directors,
officers, employees and agents, on demand, from and against any and all losses,
claims, obligations, damages, fees, costs, liabilities, expenses or
disbursements of any kind and nature whatsoever (including, but not limited to,
reasonable fees and disbursements of counsel, interest, penalties, and amounts
paid in settlement):
(a) which may be imposed on, incurred by or asserted against the
Assignee or any Senior Secured Party, or any director, officer, employee or
agent thereof, in any way related to or arising out of this Agreement, the
assignment of the Marks, the use of the Marks, the alleged infringement by any
Assignor of the intellectual property rights of others, any infringement action
or other claim relating to the Marks, or the enforcement of any of the terms
hereof, including, but not limited to, the negligence of the Assignee, any
Senior Secured Party or any director, officer, employee or agent thereof, or any
action taken or omitted by such party; or
(b) incurred by the Assignee in connection with the payment or
discharge of any taxes, counsel fees, maintenance fees, encumbrances or
otherwise protecting, maintaining, preserving the Marks, or in defending or
prosecuting any actions or proceedings arising out of or related to the Marks;
except only in each case such losses, claims, damages, liabilities or expenses
which the Assignors prove were clearly and directly a result of such party's
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction.
4.4 Prosecution and Maintenance. Until the Senior Secured Obligations
have been paid in full and the Lenders have no commitment to extend credit
pursuant to the Credit Agreement, the Assignors shall have the duty to prosecute
diligently any trademark/service xxxx application for the Marks pending as of
the date of this Agreement or thereafter, to maintain any trademark/service xxxx
registrations for the Marks in effect as of the date of this Agreement or
thereafter, to make application for registration of non-registered marks as they
are adopted and used, and to preserve and maintain all rights in the Marks and
any registrations thereof and/or the applications therefor. In each case, the
Assignors shall notify the Assignee so that the Assignee may record and/or
perfect its security interest in and to such Marks and will cooperate with the
Assignee in preparation and filing of all required documents. Any expenses
incurred in connection with such applications shall be borne by the Assignors.
The Assignors shall not unreasonably allow any pending trademark or service xxxx
application to become abandoned or unreasonably allow any trademark or service
xxxx registration to become cancelled, and shall not unreasonably forego any
right to protect and enforce any rights to trademarks, service marks or other
distinctive styles or designations.
4.5 Enforcement of Marks. The Assignee shall have the right, but shall
in no way be obligated, to bring suit in its own or any Assignor's name to
enforce and protect rights to the Marks in which event each Assignor shall at
the request of the Assignee do any and all lawful
-6-
432
acts and execute any and all proper documents required by the Assignee in aid of
such enforcement and the Assignor shall promptly, upon demand, reimburse and
indemnify the Assignee for all reasonable costs and expenses incurred by the
Assignee in the exercise of its rights under this Section.
4.6 Responsibility of Assignors. In furtherance and not limitation of
the other provisions of this Section 4, neither Assignee nor any Senior Secured
Party shall have any duty or responsibility with respect to the Marks or their
preservation. Each Assignor acknowledges and agrees that it has reviewed the
terms of this Agreement with trademark counsel of its choosing and that the
Assignors have determined that neither execution, delivery, nor performance of
this Agreement by the Assignors, the Assignee or the Senior Secured Parties will
in any way impair the Marks or the Assignors' right, title and interest therein,
subject to the purpose of this Agreement which is to impose a lien thereon in
favor of the Assignee and the Senior Secured Parties.
4.7 Reimbursement. Any and all reasonable fees, costs and expenses, of
whatever kind or nature, including the reasonable attorney's fees and legal
expenses incurred by the Assignee or the Senior Secured Parties in connection
with the preparation of this Agreement and all other documents relating hereto
and the consummation of this transaction, the filing or recording of any
documents (including all taxes in connection therewith) in public offices, the
payment or discharge of any taxes, counsel fees, maintenance fees, encumbrances
or otherwise protecting, maintaining or preserving the Marks, or in defending or
prosecuting any actions or proceedings arising out of or related to the Marks,
shall be borne and paid by the Assignors on demand and until so paid shall be
added to the principal amount of the Senior Secured Obligations and shall bear
interest at the rate prescribed in the Credit Agreement.
5. Events of Default and Remedies.
5.1 Rights of Assignee. If any Event of Default shall have occurred and
be continuing, the Assignee shall have, in addition to all other rights and
remedies given it by this Agreement, the Credit Agreement, or any other Loan
Document, those allowed by law and the rights and remedies of a Senior Secured
Party under the Uniform Commercial Code as enacted in any jurisdiction the law
of which is applicable and, without limiting the generality of the foregoing,
the Assignee may immediately, without demand of performance and without
advertisement, require each Assignor to assign of record the Marks to the
Assignee (or its designees), and beneficially, sell at public or private sale or
otherwise realize upon, the whole or from time to time any part of the Marks and
the goodwill associated therewith, or any interest that any Assignor has
therein, and after deducting from the proceeds of said sale or other disposition
of the Marks all expenses (including all reasonable expenses for brokers, fees
and legal services), shall apply the residue of such proceeds toward the payment
of the Senior Secured Obligations as set forth in the Loan Documents and under
applicable law. Any remainder of the proceeds after payment in full of the
Senior Secured Obligations shall be paid over to the Assignors. Prior notice of
any sale or other disposition of the Marks need not be given to any Assignor
unless otherwise required by law (and if notice is required by law, it shall be
given ten (10) days before the time of any intended public or private sale or
other disposition of the Marks is to be made, which the Assignors hereby agree
shall be reasonable notice of such
-7-
433
sale or other disposition). At any such sale or other disposition, any holder of
any Note (including renewals and substitutions therefor) or the Assignee may, to
the extent permissible under applicable law, purchase the whole or any part of
or interest in the Marks sold, free from any right of redemption on the part of
any Assignor, which right is hereby waived and released.
5.2 Power of Attorney. Effective immediately and automatically after a
Potential Event of Default or an Event of Default, and in furtherance of and in
accordance with Section 5.1, each Assignor hereby irrevocably authorizes and
empowers the Assignee to make, constitute and appoint any officer or agent of
the Assignee as the Assignee may select in its exclusive discretion, as such
Assignor's true and lawful attorney-in-fact, with the power to endorse such
Assignor's name on all applications, documents, papers and instruments necessary
for the Assignee to use the Marks, or to grant or issue any exclusive or
non-exclusive license under the Marks to any third person, or necessary for the
Assignee to assign, pledge, convey or otherwise transfer title in or dispose of
the Marks, including the goodwill and equipment associated therewith, to
Assignee or any third person. Each Assignor hereby ratifies all that such
attorney shall lawfully do or cause to be done by virtue hereof. This power of
attorney, being coupled with an interest, shall be irrevocable for the life of
this Agreement.
5.3 Conduct of Business after Default. The parties understand and agree
that the collateral assignment with respect to the Marks as provided for in this
Agreement, together with other Collateral provided to the Assignee pursuant to
the Loan Documents, will and is intended to permit the Assignee and its
successors and assigns, upon the occurrence and continuance of an Event of
Default as provided herein, to take title to and make use of all rights to the
Marks in conjunction with the other Collateral and to carry on the business of
the Assignor.
5.4 Proceeds of Collateral Disposition. During the continuance of a
Potential Event of Default or an Event of Default, at the Assignee's request,
each or all of the Assignors shall establish and maintain at all times a trust
account with the Assignee, and all Proceeds of any disposition of Marks, before
or after an Event of Default, shall be deposited directly and immediately into
such account. The Assignors shall be responsible for all costs and fees arising
with respect to such account at the standard rates. Each of the Assignors
expressly and irrevocably authorizes and consents to the ability of the Assignee
to charge such trust account, in its sole discretion, and recover from the funds
on deposit therein, from time to time and at any time, and to apply such funds
in payment (or partial payment) for any and all Senior Secured Obligations.
5.5 Deficiency. If proceeds referred to in Section 5.1 above are
insufficient to pay the Senior Secured Obligations in full, each of the
Assignors shall continue to be liable for the entire deficiency.
6. Miscellaneous Provisions.
6.1 Notices. All notices, requests, demands, directions and other
communications (collectively "notices") given or made upon any party under the
provisions of this Agreement shall be by telephone or in writing (including
facsimile communication) unless otherwise expressly provided under this
Agreement and if in writing, shall be delivered or sent by facsimile
-8-
434
to the respective parties at the addresses and numbers set forth under their
respective names on the signature pages to this Agreement or in accordance with
any subsequent unrevoked written direction from any party to the others. All
notices shall, except as otherwise expressly provided in this Agreement, be
effective (a) in the case of facsimile, when received, (b) in case of
hand-delivered notice, when hand delivered, (c) in the case of telephone, when
telephoned, provided, however, that in order to be effective, telephonic notices
must be confirmed in writing no later than the next day by letter, facsimile or
telex, (d) if given by mail, four (4) days after such communication is deposited
in the mails with first class postage prepaid, return receipt requested, and (e)
if given by any other means (including air courier), when delivered; provided,
that notices to the Assignee shall not be effective until received. In the event
of a discrepancy between any telephonic or written notice, the written notice
shall control.
6.2 No Waiver. No course of dealing between any Assignor or any other
obligor on the Senior Secured Obligations and the Assignee, nor any failure to
exercise, nor any delay in exercising, on the part of the Assignee, any right,
power or privilege hereunder or under the Credit Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
6.3 Remedies Cumulative. All of the Assignee's rights and remedies with
respect to the Marks, whether established hereby or by the Credit Agreement, or
by any other agreements or by law shall be cumulative and may be exercised
singularly or concurrently.
6.4 Severability. The provisions of this Agreement are severable, and
if any clause or provision shall be held invalid and unenforceable in whole or
in part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such jurisdiction, and
shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Agreement in any
jurisdiction.
6.5 Amendment and Assigns. This Agreement is subject to modification
only by a writing signed by the parties, except as specifically provided
otherwise in Section 2.2 above. The rights of the Assignee to so change, modify,
waive, discharge or terminate any provision hereof is subject to the terms of
Section 12.5 of the Credit Agreement, it being understood, however, that the
Assignors are not third party beneficiaries of Section 12.5 of the Credit
Agreement. This Agreement shall be binding upon each Assignor and its successors
and permitted assigns, but shall not be assignable by any Assignor, and shall
inure to the benefit of the Assignee and the Senior Secured Parties, each of
which may assign and/or participate its interests as set forth in the Credit
Agreement.
6.6 Arbitration; Consent to Jurisdiction, Service and Venue; Waiver of
Jury Trial.
(a) Arbitration.
(i) Upon demand of any party hereto, whether made before or
after institution of any judicial proceeding, any claim or controversy arising
out of, or relating to, this Agreement between any or all of the parties hereto
(a "Dispute"), shall be resolved by binding
-9-
435
arbitration conducted under and governed by the Commercial Financial Disputes
Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and the Federal Arbitration Act. Disputes may include,
without limitation, tort claims, counterclaims, a dispute as to whether a matter
is subject to arbitration, claims brought as class actions, or claims arising
from documents executed in the future. A judgment upon the award may be entered
in any court having jurisdiction. Notwithstanding the foregoing, this
arbitration provision does not apply to disputes under or related to Interest
Rate Protection Agreements.
(ii) All arbitration hearings shall be conducted in
the City of Philadelphia, Commonwealth of Pennsylvania, unless otherwise agreed
by all parties to such arbitration. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall conclude within 120 days of demand
for arbitration. These time limitations may not be extended unless a party shows
cause for extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
the AAA. The parties do not waive applicable federal or state substantive law
except as provided herein.
(iii) Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to proceed in any court
of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (a) all rights to foreclose against any real or
personal property or other security by exercising a power of sale or under
applicable law by judicial foreclosure including a proceeding to confirm the
sales; (b) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property; and (c) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and filing of involuntary bankruptcy proceedings. Any claim or
controversy with regard to any party's entitlement to such remedies is a
Dispute.
(iv) THE PARTIES AGREE THAT THEY SHALL NOT HAVE A
REMEDY OF SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER
PARTIES IN ANY DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TO SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN
THE FUTURE IN CONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS RESOLVED BY
ARBITRATION OR JUDICIALLY.
(b) Consent to Jurisdiction, Service and Venue;
Waiver of Jury Trial
(i) With respect to any matters that may be heard
before a court of competent jurisdiction under paragraph (iii) of the preceding
subsection 6.6(a), each of the Assignors hereby consents to the jurisdiction and
venue of the courts of the Commonwealth of Pennsylvania or of any federal court
located in such state, waives personal service of any and all process upon it
and consents that all such service of process be made by certified or registered
mail directed to such Assignor at the address provided for in Section 6.1 above
and service so made shall be deemed to be completed upon actual receipt. Each of
the Assignors hereby waives the right to contest the jurisdiction and venue of
the courts located in the County of Philadelphia,
-10-
436
Commonwealth of Pennsylvania on the ground of inconvenience or otherwise and,
further, waives any right to bring any action of proceeding against (a) the
Assignee in any court outside the County of Philadelphia, Commonwealth of
Pennsylvania, or (b) any other Senior Secured Party other than in a state within
the United States designated by such Senior Secured Party. The provisions of
this Section 6.6 shall not limit or otherwise affect the right of the Agent or
any Senior Secured Party to institute and conduct an action in any other
appropriate manner, jurisdiction or court.
(ii) NO PARTY TO THIS AGREEMENT, NOR ANY ASSIGNEE,
SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE FOREGOING SHALL SEEK A JURY
TRIAL IN ANY PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, OR ANY
OTHER LOAN DOCUMENT OR ANY GUARANTY RELATING TO SUCH INDEBTEDNESS OR THE
RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE ASSIGNEE
NOR ANY SENIOR SECURED PARTY NOR ANY ASSIGNOR NOR ANY OTHER PERSON WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.
(iii) WITHOUT LIMITING THE GENERALITY OF PARAGRAPH
(iv) OF THE PRECEDING SUBSECTION 6.6(a) EXCEPT AS PROHIBITED BY LAW, EACH PARTY
TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY
ARBITRATION OR OTHER LITIGATION, ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
EACH PARTY TO THIS AGREEMENT (a) CERTIFIES THAT NEITHER THE ASSIGNEE NOR ANY
REPRESENTATIVE, OR ATTORNEY OF THE ASSIGNEE NOR ANY SENIOR SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ASSIGNEE OR SUCH SENIOR SECURED
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (b) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.6. THE PROVISIONS OF THIS SECTION
6.6 HAVE BEEN FULLY DISCLOSED TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 6.6 WILL NOT BE FULLY ENFORCED
IN ALL INSTANCES.
6.7 Governing Law. The validity and interpretation of this Agreement
and the rights and obligations of the parties shall be governed by the laws of
the Commonwealth of Pennsylvania to the extent not governed, under applicable
conflicts of laws principles or preemption, by the federal law of the United
States of America.
-11-
437
IN WITNESS WHEREOF, and intending to be legally bound hereby, each
Assignor has executed this Agreement as of the day and year first above written.
ASSIGNORS: SUSQUEHANNA MEDIA CO.
SUSQUEHANNA CABLE CO.
SUSQUEHANNA CABLE INVESTMENT CO.
CABLE TV OF EAST PROVIDENCE, INC.
CASCO CABLE TELEVISION, INC.
CASCO CABLE TELEVISION OF BATH, MAINE
SBC CABLE CO.
YORK CABLE TELEVISION, INC.
SUSQUEHANNA RADIO CORP.
RADIO CINCINNATI, INC.
RADIO INDIANAPOLIS, INC.
RADIO METROPLEX, INC.
RADIO SAN FRANCISCO, INC.
KRBE CO.
KNBR, INC.
BAY AREA RADIO CORP.
WSBA LICO, INC.
WVAE LICO, INC.
WNNX LICO, INC.
438
KNBR LICO, INC.
KRBE LICO, INC.
INDIANAPOLIS RADIO LICENSE CO.
SUSQUEHANNA DATA SERVICES, INC.
SUSQUEHANNA FIBER SYSTEMS, INC.
MEDIA PCS VENTURES, INC.
KFFG LICO, INC.
KPLX RADIO, INC.
KPLX LICO, INC.
KLIF BROADCASTING, INC.
XXXX XXXX, INC.
KLIF RADIO, INC.
TEXAS STAR RADIO, INC.
INDY LICO, INC.
WRRM LICO, INC.
WFMS LICO, INC.
By:
---------------------------------------
Xxxx X. Xxxxxxx, on behalf of each of
the foregoing as Treasurer
Notice Information
000 Xxxx Xxxxxx Xxxxxx
Xxxx, Xx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esquire
Signature Page to Trademark Collateral Agreement
439
KPLX LIMITED PARTNERSHIP,
by KPLX Radio, Inc., its General Partner
KLIF BROADCASTING LIMITED
PARTNERSHIP, by KLIF Radio, Inc.,
its General Partner
By:
---------------------------------------------
Xxxx X. Xxxxxxx on behalf of each of the
foregoing as Treasurer of the General Partner
SUSQUEHANNA PFALTZGRAFF CO.
By:
---------------------------------------------
Name:
Title:
Notice Information
------------------
000 Xxxx Xxxxxx Xxxxxx
Xxxx, Xx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esquire
Signature Page to Trademark Collateral Agreement
440
ACKNOWLEDGED BY ASSIGNEE:
FIRST UNION NATIONAL BANK, in its capacity as Agent
By:
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
Notice Information
------------------
Communications/Media Group
PA 4829
0 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxx, Senior Vice President
441
SCHEDULE 2.1
[INSERT SMC LIST]
442
EXHIBIT 2.3
TRADEMARK COLLATERAL AGREEMENT AND NOTICE
TRADEMARK COLLATERAL AGREEMENT AND NOTICE dated as of ______________,
1999 by __________________, a ______________ corporation ("Assignor"), having an
address at _____________________, to and in favor of FIRST UNION NATIONAL BANK,
having offices at 0 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000, for
itself and as Agent ("Assignee") for certain secured parties (the "Senior
Secured Parties") under a certain Credit Agreement of even date herewith among
Susquehanna Media Co. (the "Borrower"), the Assignee and certain lenders and
issuers of letters of credit (the "Lenders") (as amended, the "Credit
Agreement").
WHEREAS, Assignor is the owner of certain United States Trademarks as
listed on Exhibit I hereto; and
WHEREAS, the Lenders have agreed to extend certain credit to the
Borrower and certain subsidiaries under the Credit Agreement on condition that
the Assignor pledge and grant to Assignee as collateral for the Senior Secured
Obligations (as defined in the Credit Agreement) under the Credit Agreement a
security interest and lien in and to such Trademarks and all applications
therefor described above, including the registrations thereof, the goodwill
associated therewith and all other related claims and rights as more fully
described in a certain Trademark Collateral Agreement in favor of the Assignee
(the "Marks");
NOW THEREFORE, for good and valuable consideration, as security for the
due and timely payment and performance of the Senior Secured Obligations,
Assignor hereby pledges and grants to Assignee for itself and as Agent for the
other Senior Secured Parties a security
443
interest and lien in and to the aforesaid Marks, and gives notice of such
security interest and the existence of such Trademark Collateral Agreement
providing therefor.
Executed as of the date first above written.
ATTEST: ______________________________
By:______________________________ By:___________________________
Name: Name:
Title: Secretary (SEAL) Title: President
-2-
000
XXXXXXXXXXXX XX XXXXXXXXXXXX :
SS.
COUNTY OF PHILADELPHIA :
Before me, the undersigned, a Notary Public in and for the state and
county aforesaid, on this ____ day of _________________, 19__, personally
appeared __________________, and __________________, to me known personally, and
who, being first by me duly sworn, depose and say that they are the President
and Secretary, respectively of _____________, and that the seal affixed to the
foregoing instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed on behalf of said corporation by authority of
its Board of Directors, and that they acknowledged said instrument to be the
free act and deed of said corporation.
__________________________________
Notary Public
My Commission Expires:
445
EXHIBIT 3.2 TO TRADEMARK
COLLATERAL AGREEMENT
JOINDER TO TRADEMARK COLLATERAL AGREEMENT
JOINDER dated as of ______________, ______ given by the undersigned to
and in favor of FIRST UNION NATIONAL BANK, for itself and as Agent (the
"Assignee").
The undersigned hereby (a) joins as an "Assignor" and becomes party to,
and agrees to be bound as an "Assignor" by that certain Trademark Collateral
Agreement dated as of _________, 1999, as amended, given by Susquehanna Media
Co. (the "Borrower") and the Subsidiaries named therein to and in favor of the
Assignee and the Senior Secured Parties, relating to that certain Credit
Agreement dated as of _____________, 1999, as amended, among the Senior Secured
Parties (as defined in the Credit Agreement), the Assignee, for itself and the
Senior Secured Parties, and the Borrower; and (b) confirms that the Senior
Secured Obligations (as defined in the Credit Agreement) include, without
limitation, all credit being extended to the Borrower or any Subsidiary by the
Assignee and the Senior Secured Parties on or about the date hereof.
An executed copy of this Joinder shall be delivered to the Assignee,
and the Assignee and the Senior Secured Parties may rely on the matters set
forth herein in entering into and extending credit under the Credit Agreement on
or after the date hereof. This Joinder shall not be modified, amended or
terminated without the prior written consent of the Assignee.
EXECUTED as of the day first above written.
Attest: (Seal)______________________________
By:_______________________________ By:___________________________
Name: Name:
Title: Title:
446
EXHIBIT P
SUSQUEHANNA CABLE CO. SCHEDULE 1
CABLE SYSTEM OPERATING RESULTS CMA
Dollars in Thousands [Date]
-----------------------------------------
AT DECEMBER 31,
MILES OF PLANT current year prior year Inc/(Dec)
------------------------------------------
York
Williamsport
Xxxxxx County
Brunswick/Bath
DuQuoin
Shelbyville
Olney AT DECEMBER 31,
------------------
TOTAL SUSQUEHANNA CABLE current year prior year Inc/(Dec)
================== ----------------------------------
HOMES PASSED DENSITY (HOMES/MILE)
York York
Williamsport Williamsport
Xxxxxx County Xxxxxx County
Brunswick/Bath Brunswick/Bath
DuQuoin DuQuoin
Shelbyville Shelbyville
Olney Olney
------------------- ---------------------
TOTAL SUSQUEHANNA CABLE TOTAL CABLE
=================== =====================
BASIC SUBSCRIBERS BASIC PENETRATION
York York
Williamsport Williamsport
Xxxxxx County Xxxxxx County
Brunswick/Bath Brunswick/Bath
DuQuoin DuQuoin
Shelbyville Shelbyville
Olney Olney
------------------- ---------------------
TOTAL SUSQUEHANNA CABLE TOTAL CABLE
=================== =====================
PAY UNITS PAY PENETRATION
York York
Williamsport Williamsport
Xxxxxx County Xxxxxx County
Brunswick/Bath Brunswick/Bath
DuQuoin DuQuoin
Shelbyville Shelbyville
Olney Olney
------------------- ---------------------
TOTAL SUSQUEHANNA CABLE TOTAL CABLE
=================== =====================
447
SUSQUEHANNA CABLE CO. SCHEDULE 1
CABLE SYSTEM OPERATING RESULTS CMA
Dollars in Thousands [Date]
-------------------------------------------- --------------------------------------------
CURRENT QUARTER YEAR-TO-DATE
TOTAL REVENUE current year prior year Fav/(Unfav) current year prior year Fav/(Unfav)
-------------------------------------------- --------------------------------------------
York
Williamsport
Xxxxxx County
Brunswick/Bath
DuQuoin
Shelbyville
Olney
Cable Management Group
-------------------------------------------- --------------------------------------------
TOTAL REVENUE
============================================ ============================================
AVERAGE REVENUE PER SUBSCRIBER
York
Williamsport
Xxxxxx County
Brunswick/Bath
DuQuoin
Shelbyville
Olney
-------------------------------------------- --------------------------------------------
TOTAL SUSQUEHANNA CABLE
============================================ ============================================
OPERATING CASH FLOW
York
Williamsport
Xxxxxx County
Brunswick/Bath
DuQuoin
Shelbyville
Olney
Cable Management Group
-------------------------------------------- --------------------------------------------
OPERATING CASH FLOW
============================================ ============================================
OPERATING CASH FLOW MARGIN
York
Williamsport
Xxxxxx County
Brunswick/Bath
DuQuoin
Shelbyville
Olney
-------------------------------------------- --------------------------------------------
TOTAL SUSQUEHANNA CABLE
============================================ ============================================
448
OFFICERS' COMPLIANCE CERTIFICATE
The undersigned officers of Susquehanna Media Co. ("Company"), pursuant
to the Revolving Credit and Term Loan Agreement dated as of __________ __, 1999
(as amended, restated or otherwise modified, the "Credit Agreement"), by and
among Company, the lenders party thereto and First Union National Bank, as
Agent, hereby certify to Agent and Lenders as set forth below. All capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Credit Agreement. All section references are to sections of the
Credit Agreement.
1. This Certificate is delivered by Company in respect of the fiscal
[year] [quarter] of the Company and its Subsidiaries ending on ______________
(the "Reference Date") and relates to the consolidated and consolidating
financial statements of the Company and its Subsidiaries delivered in respect of
such period (the "Reference Period").(1)
2. THE FOLLOWING IS APPLICABLE TO THE CERTIFICATE DELIVERED PURSUANT TO
SUBSECTION 4.1.23 ON THE CLOSING DATE:(2)
(a) Both before and after giving effect to the Indebtedness to be
incurred and other transactions contemplated to occur on the Closing Date, there
exists no Event of Default or Potential Event of Default;
(b) All representations and warranties contained in the Credit
Agreement or otherwise made in writing in connection with the Credit Agreement,
whether made by SPC, the Company, any Subsidiary of the Company or any other
Person on behalf of SPC, the Company or any of the Company's Subsidiaries, are
true and correct with the same effect as though such representations and
warranties were made to Lenders or Agent on behalf of Lenders on and as of the
date of this Certificate;
(c) Attached as Schedule 1 are the computations to establish whether or
not the Company is in compliance with the financial covenants set forth in
Article 6 of the Credit Agreement;
(d) No Material Adverse Change has occurred since December 31, 1998;
(e) No event has occurred or has been threatened and no facts or
circumstances exist, including, without limitation, any action, suit,
investigation, litigation or proceeding pending or threatened in a court or
before any arbitrator or governmental instrumentality, that could have a
Material Adverse Effect;
________________________
(1) Modify if Certificate is being delivered as of another date.
(2) Not all sections of this form will be applicable to each Certificate. Modify
as appropriate.
449
(f) The Company and each of it Subsidiaries are in substantial
compliance with all applicable laws, including environmental laws; and
(g) All material corporate, governmental and judicial consents and
approvals and waivers (including, without limitation, any requisite FCC or PUC
approvals) and third party consents (including Xxxxxxx) and approvals (except
for those consents, approvals and waivers not required by the Agent as a
condition to closing) necessary in connection with the Credit Agreement and the
Loans, or other related transactions (including, without limitation, those
required in connection with the creation of the ESOP), have been obtained and
become final or Final Orders, as applicable, and will remain in full force and
effect, without the imposition of any conditions that are not acceptable to the
Lenders.
3. THE FOLLOWING IS APPLICABLE TO CERTIFICATES DELIVERED PURSUANT TO
SUBSECTION 5.1.4 ACCOMPANYING THE QUARTERLY OR ANNUAL FINANCIAL STATEMENTS
DELIVERED UNDER SUBSECTIONS 5.1.1 OR 5.1.2:
(a) The accompanying financial statements supplied to Agent and
Lenders (i) have been prepared in accordance with GAAP (except, in the case of
such financial statements that are unaudited, for the exclusion of footnote
disclosure), (ii) are true and correct (subject, in the case of such financial
statements that are unaudited, to normal recurring year end audit adjustments),
and (iii) present fairly the consolidated financial position of the Company and
its Subsidiaries as of the Reference Date and the results of operations and
changes of cash flow for the Reference Period (subject, in the case of such
financial statements that are unaudited, to normal recurring year end audit
adjustments). Since the Reference Date, there has been no Material Adverse
Change.
(b) A review of the activities of Company and its Subsidiaries
during the Reference Period has been made in accordance with established
procedures and with a view to determining whether all of the obligations and
covenants under or in connection with the Credit Agreement have been performed
and fulfilled and such review showed that [there existed during such period no
Event of Default and no Potential Event of Default] [if any Event of Default or
Potential Event of Default existed, Schedule 2 attached hereto includes a
statement specifying the nature thereof, the period of existence thereof and
what action Company proposes to take, or has taken, with respect thereto].
(c) Attached as Schedule 3 are the calculations to establish
compliance with covenants set forth in the following Sections of the Credit
Agreement:
(i) 6.1 (Interest Coverage Ratio)
(ii) 6.2 (Debt Service Coverage Ratio)
(iii) 6.3 (Consolidated Total Leverage Ratio)
(iv) 6.4 (Consolidated Senior Leverage Ratio)
-2-
450
(v) 6.5 (Fixed Charge Coverage Ratio)
(vi) 7.4 (Restricted Payments)
THE INFORMATION IN PARAGRAPHS (d) AND (e) NEED ONLY BE INCLUDED IN THE
CERTIFICATES DELIVERED ALONG WITH THE ANNUAL FINANCIAL STATEMENTS REFERRED TO IN
SUBSECTION 5.1.2:
(d) Schedule 3 hereto specifies the amount of Management Fees that (i)
were paid during each year Reference Period, and (ii) were permitted to be paid
during such Reference Period.
(e) Schedule 3 hereto specifies the following information with respect
to the ESOP:
The consolidated amount of the compensation expense(3) and relative to
the ESOP
The total amount of compensation expense allocated to the Company
The total amount of compensation expense allocated to Pfaltzgraff Corp.
The total amount of compensation expense allocated to SPC
The total amount of direct operating expenses of the ESOP
The amount of payments made by SPC to the Company in respect of debt
service prepayments on the loan made on the Closing Date
The total amount of liquidation expense of the Company
The allocations and payments made with respect to the ESOP as set forth on
Schedule 3 hereto were made in compliance with the ESOP Sharing Agreement.
4. THE FOLLOWING IS APPLICABLE TO CERTIFICATES DELIVERED PURSUANT TO
SUBSECTIONS 5.2.13 (NOTICE OF PURCHASE OF MINORITY INTEREST) AND 7.3.2(n)
(LIMITATION ON INVESTMENTS - MINORITY INTERESTS):
(a) Both before and after giving effect to the purchase of the
minority interests in a Subsidiary or Subsidiaries in respect of which this
Certificate is being delivered, no Event of Default or Potential Event of
Default exists.
----------------------
(3) Compensation expense is the expense related to funding share allocations in
the ESOP.
-3-
451
(b) Attached as Schedule 4 are the calculations to establish
compliance with the financial covenants contained in Article 6, before and (on a
Pro Forma Basis) after giving effect to the purchase in respect of which this
Certificate is being delivered.
5. THE FOLLOWING IS APPLICABLE TO CERTIFICATES DELIVERED PURSUANT TO
SUBSECTION 7.3.3(a) (LIMITATION ON ACQUISITIONS):
(a) Both before and after giving effect to the Acquisition in
respect of which this Certificate is being delivered, no Event of Default or
Potential Event of Default exists.
(b) Attached as Schedule 5 are the calculations to establish
compliance with the financial covenants contained in Article 6 on a Pro Forma
Basis after giving effect to the Acquisition.
6. THE FOLLOWING IS APPLICABLE TO CERTIFICATES DELIVERED PURSUANT TO
SUBSECTION 7.7.2(b) (LIMITATION ON DISPOSITIONS IN GENERAL):
(a) Both before and after giving effect to the disposition in
respect of which this Certificate is being delivered, no Event of Default or
Potential Event of Default exists.
(b) Attached as Schedule 6 are the calculations to establish
compliance with the financial covenants contained in Article 6, on a Pro Forma
Basis, after giving effect to the disposition in respect of which this
Certificate is being delivered.
7. THE FOLLOWING IS APPLICABLE TO CERTIFICATES DELIVERED PURSUANT TO
SUBSECTION 7.7.2(c) (DISPOSITION TO A MINORITY HOLDER):
(a) Both before and after giving effect to the disposition in
respect of which this Certificate is being delivered, no Event of Default or
Potential Event of Default exists.
(b) Attached as Schedule 7 are the calculations to establish
compliance with the financial covenants contained in Article 6, before and (on a
Pro Forma Basis) after giving effect to the disposition in respect of which this
Certificate is being delivered.
8. THE FOLLOWING IS APPLICABLE TO CERTIFICATES DELIVERED PURSUANT TO
SUBSECTION 1.1.5 (COMMITMENT REDUCTIONS IN CONNECTION WITH CERTAIN ASSET
DISPOSITIONS) AND SUBSECTION 7.7.2(d) (SALES AND OTHER DISPOSITIONS):
-4-
452
(a) Both before and after giving effect to the disposition of the
[stock] [assets] of Susquehanna Cable and its Subsidiaries in accordance with
the terms of Section 5 (h) of the Fifth Amendment to the Xxxxxxx Agreement, and
before and after the application of the proceeds of such disposition as shown in
Schedule 8, no Event of Default or Potential Event of Default exists.
(b) Schedule 8 lists the parties to whom the proceeds of such
disposition are to be paid, pursuant to Subsection 7.7.2(d)(iv).
(c) Attached as Schedule 9 are the calculations to establish
compliance with the financial covenants contained in Article 6, before and (on a
Pro Forma Basis) after giving effect to the disposition in respect of which this
Certificate is being delivered and the application of the proceeds of such
disposition as shown in Schedule 8.
9. THE FOLLOWING IS APPLICABLE TO CERTIFICATES DELIVERED PURSUANT TO
SUBSECTION 7.1.1(f)(ii) (INDEBTEDNESS):
(a) Both before and after giving effect to the consummation of the
Xxxxxxx Put (including any additional Indebtedness incurred in connection
therewith), no Event of Default or Potential Event of Default exists.
(b) Attached as Schedule 10 are the calculations to establish
compliance with the financial covenants contained in Article 6, before and (on a
Pro Forma Basis) after giving effect to the consummation of the Xxxxxxx Put
(including any additional Indebtedness incurred in connection therewith).
(c) Attached as Schedule 11 are the calculations to establish
compliance with the financial covenants contained in Article 6, after giving
effect to the consummation of the Xxxxxxx Put (including any additional
Indebtedness incurred in connection therewith and payments in respect thereof)
as of the end of the period ending one year plus one day after the consummation
of the Xxxxxxx Put.
(d) Attached as Schedule 12 are the calculations to establish
compliance with the debt incurrence test set forth in Section 4.08 of the Senior
Subordinated Indenture.
Date: SUSQUEHANNA MEDIA CO.
By:_________________________________________
(Vice) President)(Treasurer)
-5-
453
Schedule 1
(To be delivered on the Closing Date)
Section 6.1 (Interest Coverage Ratio):
Section 6.2 (Debt Service Coverage Ratio):
Section 6.3 (Consolidated Total Leverage Ratio):
Section 6.4 (Consolidated Senior Leverage Ratio):
Section 6.5 (Fixed Charge Coverage Ratio):
-6-
454
Schedule 3
(To be delivered with annual and quarterly financial statements)
Section 6.1 - Interest Coverage Ratio:
Section 6.2 - Debt Service Coverage Ratio:
Section 6.3 - Consolidated Total Leverage Ratio:
Section 6.4 - Consolidated Senior Leverage Ratio:
Section 6.5 - Fixed Charge Coverage Ratio:
Section 7.4 (Restricted Payments) -
the amount of Restricted Payments that were made during the Reference
Period: $_____
the amount of Restricted Payments that were permitted to be made during
the Reference Period: $____
THE FOLLOWING INFORMATION NEED ONLY BE INCLUDED IN THE CERTIFICATES DELIVERED
ALONG WITH THE ANNUAL FINANCIAL STATEMENTS REFERRED TO IN SUBSECTION 5.1.2:
Section 7.8 (Management Fees) -
The amount of Management Fees that were paid during each year Reference
Period: $___
The amount of Management Fees were permitted to be paid during such
Reference Period: $___
-7-
455
Section 7.14.2 (ESOP Payments) -
1. Consolidated amount of the compensation expense(4) relative
to the ESOP: $____________.
2. Total amount of compensation expense allocated to the Company:
$____________.
3. Total amount of compensation expense allocated to Pfaltzgraff
Corp.: $___________.
4. Total amount of compensation expense allocated to SPC:
$__________.
5. Total amount of direct operating expenses of the ESOP:
$___________.
6. Amount of payments made by SPC to the Company in respect of
debt service on the loan made on the Closing Date:
$_____________.
7. Total amount of liquidation expense of the Company:
$___________.
__________________
(4) Compensation expense is the expense related to funding share allocations
in the ESOP.
-8-
456
Schedule 4
(Purchase of Minority Interests)
Before Giving Effect to the Purchase
Section 6.1 - Interest Coverage Ratio:
Section 6.2 - Debt Service Coverage Ratio:
Section 6.3 - Consolidated Total Leverage Ratio:
Section 6.4 - Consolidated Senior Leverage Ratio:
Section 6.5 - Fixed Charge Coverage Ratio:
After Giving Effect to the Purchase
Section 6.1 - Interest Coverage Ratio, on a Pro Forma Basis:
Section 6.2 - Debt Service Coverage Ratio, on a Pro Forma Basis:
Section 6.3 - Consolidated Total Leverage Ratio, on a Pro Forma Basis:
Section 6.4 - Consolidated Senior Leverage Ratio, on a Pro Forma Basis:
Section 6.5 - Fixed Charge Coverage Ratio:
-9-
457
Schedule 5
(Acquisitions)
Section 6.1 - Interest Coverage Ratio, on a Pro Forma Basis:
Section 6.2 - Debt Service Coverage Ratio, on a Pro Forma Basis:
Section 6.3 - Consolidated Total Leverage Ratio, on a Pro Forma Basis:
Section 6.4 - Consolidated Senior Leverage Ratio, on a Pro Forma Basis:
Section 6.5 - Fixed Charge Coverage Ratio:
-10-
458
Schedule 6
(Dispositions)
Section 6.1 - Interest Coverage Ratio, on a Pro Forma Basis:
Section 6.2 - Debt Service Coverage Ratio, on a Pro Forma Basis:
Section 6.3 - Consolidated Total Leverage Ratio, on a Pro Forma Basis:
Section 6.4 - Consolidated Senior Leverage Ratio, on a Pro Forma Basis:
Section 6.5 - Fixed Charge Coverage Ratio:
-11-
459
Schedule 7
(Disposition to Minority Holder)
Before Giving Effect to the Disposition
Section 6.1 - Interest Coverage Ratio:
Section 6.2 - Debt Service Coverage Ratio:
Section 6.3 - Consolidated Total Leverage Ratio:
Section 6.4 - Consolidated Senior Leverage Ratio:
Section 6.5 - Fixed Charge Coverage Ratio:
After Giving Effect to the Disposition
Section 6.1 - Interest Coverage Ratio, on a Pro Forma Basis:
Section 6.2 - Debt Service Coverage Ratio, on a Pro Forma Basis:
Section 6.3 - Consolidated Total Leverage Ratio, on a Pro Forma Basis:
Section 6.4 - Consolidated Senior Leverage Ratio, on a Pro Forma Basis:
Section 6.5 - Fixed Charge Coverage Ratio:
-12-
460
Schedule 8
(Application of Proceeds of a Disposition pursuant to Xxxxxxx Note)
1. Proceeds Used to Repay Senior Secured Obligations: _____________________.
2. Proceeds Used to Prepay or Repay the Xxxxxxx Note: _____________________.
3. Proceeds to be Retained by Company or a Subsidiary: _____________________.
-13-
461
Schedule 9
(Disposition pursuant to Xxxxxxx Note)
Before Giving Effect to the Disposition
Section 6.1 - Interest Coverage Ratio:
Section 6.2 - Debt Service Coverage Ratio:
Section 6.3 - Consolidated Total Leverage Ratio:
Section 6.4 - Consolidated Senior Leverage Ratio:
Section 6.5 - Fixed Charge Coverage Ratio:
After Giving Effect to the Disposition
Section 6.1 - Interest Coverage Ratio, on a Pro Forma Basis:
Section 6.2 - Debt Service Coverage Ratio, on a Pro Forma Basis:
Section 6.3 - Consolidated Total Leverage Ratio, on a Pro Forma Basis:
Section 6.4 - Consolidated Senior Leverage Ratio, on a Pro Forma Basis:
Section 6.5 - Fixed Charge Coverage Ratio:
-14-
462
Schedule 10
(Consummation of the Xxxxxxx Put)
Before Giving Effect to the Consummation of the Xxxxxxx Put
Section 6.1 - Interest Coverage Ratio:
Section 6.2 - Debt Service Coverage Ratio:
Section 6.3 - Consolidated Total Leverage Ratio:
Section 6.4 - Consolidated Senior Leverage Ratio:
Section 6.5 - Fixed Charge Coverage Ratio:
After Giving Effect to the Consummation of the Xxxxxxx Put
Section 6.1 - Interest Coverage Ratio, on a Pro Forma Basis:
Section 6.2 - Debt Service Coverage Ratio, on a Pro Forma Basis:
Section 6.3 - Consolidated Total Leverage Ratio, on a Pro Forma Basis:
Section 6.4 - Consolidated Senior Leverage Ratio, on a Pro Forma Basis:
Section 6.5 - Fixed Charge Coverage Ratio:
-15-
463
Schedule 11
(Consummation of the Xxxxxxx Put)
Calculations as of the End of the Period Ending One Year and One Day after
Consummation of the Xxxxxxx Put, After Giving Effect Thereto:
Section 6.1 - Interest Coverage Ratio, on a Pro Forma Basis:
Section 6.2 - Debt Service Coverage Ratio, on a Pro Forma Basis:
Section 6.3 - Consolidated Total Leverage Ratio, on a Pro Forma Basis:
Section 6.4 - Consolidated Senior Leverage Ratio, on a Pro Forma Basis:
Section 6.5 - Fixed Charge Coverage Ratio, on a Pro Forma Basis:
-16-
464
Schedule 12
(Consummation of the Xxxxxxx Put)
[Calculations to show compliance with the debt incurrence test set forth in
Section 4.08 of the Senior Subordinated Indenture]
-17-
465
EXHIBIT R
ASSIGNMENT AND ACCEPTANCE
Dated as of: ____________
Reference is made to the Credit Agreement dated as of May __, 1999 (as
amended, extended, supplemented, restated or otherwise modified from time to
time, the "Credit Agreement") by and among Susquehanna Media Co., a Delaware
corporation (the "Borrower"), the lenders party thereto (the "Lenders") and
First Union National Bank, as Agent. Capitalized terms used herein which are not
defined herein shall have the meanings assigned to such terms in, or by
reference in, the Credit Agreement. This Assignment and Acceptance is entered
pursuant to, and authorized by, Section 11.5.3 of the Credit Agreement.
_____________ (the "Assignor") and ___________ (the "Assignee") agree
as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, without recourse, as of
the Effective Date (as defined below):
a. ___% interest in and to the Revolving Credit Commitment and
Revolving Loans (including such percentage of the outstanding Swing Loans and
outstanding Letters of Credit) and the Assignor thereby retains ____% interest
therein as more fully set forth on Schedule 1A hereto; and/or
b. ___% interest in and to the Term A Loan and the Assignor
thereby retains ____% interest therein as more fully set forth on Schedule 1B
hereto; and/or
c. ___% interest in and to the Term B Loan and the Assignor
thereby retains ____% interest therein as more fully set forth on Schedule 1C
hereto.
2. The Assignor represents that the interests it has in the Credit
Agreement and Notes before and after giving effect to the assignment referred to
in paragraph 1 above are as set forth on Schedule 1A, Schedule 1B and Schedule
1C hereto.
3. The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, other than (a) as set forth in the preceding paragraph 2, (b)
that the Assignor is the legal and beneficial owner of the interest being
assigned by it hereunder and (c) that such interest is free and clear of any
adverse claim. Without limiting the generality of the foregoing, the Assignor
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or its Subsidiaries or the
performance or
466
observance by the Borrower or its Subsidiaries of any of their obligations under
the Credit Agreement or any other instrument or document furnished or executed
pursuant thereto.
4. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Sections 5.1.1 and 5.1.2
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without reliance upon the
Assignor or any other Lender or Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (d)
confirms that it is an Eligible Assignee; (e) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (f) agrees that it will perform in accordance with their terms all the
obligations which by the terms of the Credit Agreement and the other Loan
Documents are required to be performed by it as a Lender; and (g) includes
herewith (if not previously delivered) for the Agent any Note requiring
cancellation, a processing and recordation fee of $3,500 payable by the Assignor
to the Agent, and any fees representing reimbursement for counsel fees, each of
which are required by Section 11.5.3 of the Credit Agreement.
5. Subject to any required consent of the Agent and/or Borrower, the
effective date for this Assignment and Acceptance shall be as set forth in
Section 1 of Schedule 1 hereto (the "Effective Date").
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and the other Loan Documents to which Lenders are
parties and, to the extent provided in this Assignment and Acceptance, have the
rights and obligations of a Lender under each such agreement, and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Loan Documents.
7. From and after the Effective Date, the Agent shall make all payments
in respect of the interest assigned hereby (including payments of principal,
interest, fees and other amounts) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments for periods prior to the
Effective Date or with respect to the making of this assignment directly between
themselves.
8. Payments hereunder shall be made in accordance with the payment
instructions on Schedule 1 hereto unless otherwise specified in writing by the
payee.
467
9. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE DEEMED TO BE A CONTRACT
UNDER SEAL AND SHALL BE COVERED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
ASSIGNOR:
_________________________
By: _____________________
Title:___________________
ASSIGNEE:
_________________________
By: _____________________
Title:___________________
468
Acknowledged and Consented to on behalf of the Borrower:(1)
SUSQUEHANNA MEDIA CO.
By: __________________________________
Name:_________________________________
Title:________________________________
Consented to and Accepted:
FIRST UNION NATIONAL BANK
as Agent
By: __________________________________
Title _________________________________
______________________
(1) If applicable pursuant to Section 11.5.3
469
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
1. Effective Date: ______________________
2. Payment Instructions
(a) If payable to Assignor, to the account of Assignor to:
_______________________________________________________
_______________________________________________________
ABA No.: ______________________________________________
Account Name:__________________________________________
Acct. No.: __________________________________________
Attn: _________________________________________________
Ref.: _________________________________________________
(b) If payable to Assignee, to the account of Assignee to:
_______________________________________________________
ABA No.: ______________________________________________
Account Name:__________________________________________
Acct. No.: __________________________________________
Ref.: _________________________________________________
470
SCHEDULE 1A
TO
ASSIGNMENT AND ACCEPTANCE
(REVOLVING CREDIT LOANS AND REVOLVING CREDIT COMMITMENT)
1. Assignor's Interest In Revolving Credit Commitment and Revolving Loans
PRIOR to Assignment
(a) Revolving Credit Commitment Percentage _______%
(b) Outstanding balance of Assignor's Revolving Loans $ _______
(c) Outstanding Balance of
(i) Assignor's Revolving Credit Commitment
Percentage of the Letters of Credit $ _______
(ii) Assignor's Revolving Credit Commitment
Percentage of the Swing Loans $ _______
2. Assigned Interest of Revolving Loans (from Section 1) _______%
3. Assignee's Extensions of Credit AFTER Effective Date
(a) Total Outstanding balance of
Assignee's Revolving Loans $ _______
(b) Total Outstanding balance of
Assignee's Revolving Credit
Commitment Percentage of the
Letters of Credit $ _______
(c) Total Outstanding balance of
Assignee's Revolving Credit
Commitment Percentage of the
Swing Loans $ _______
4. Retained Interest of Assignor AFTER Effective Date
(a) Retained Interest of Revolving
Credit Commitment Percentage (from Section 1) _______%
(b) Outstanding balance of Assignor's Revolving
Credit Loans $ _______
471
(c) Outstanding balance of Assignor's
Revolving Credit Commitment
Percentage of Letters of Credit $ _______
(d) Outstanding balance of Assignor's
Revolving Credit Commitment Percentage
of Swing Loans $ _______
472
SCHEDULE 1B
TO
ASSIGNMENT AND ACCEPTANCE
(TERM A LOANS)
1. Assignor's Interest PRIOR to Assignment
(a) Term A Loan Commitment Percentage _______%
(b) Outstanding balance of Assignor's Term A Loan $ _______
2. Assigned Interest of Term A Loan (from Section 1) _______%
3. Assignee's Interest AFTER Effective Date
(a) Total Outstanding balance of Assignee's Term A Loan $_______
4. Retained Interest of Assignor AFTER Effective Date
(a) Retained Interest of Term A Loan
Commitment Percentage (from Section 1) _______%
(b) Outstanding balance of Assignor's Term A Loan $________
473
SCHEDULE 1C
TO
ASSIGNMENT AND ACCEPTANCE
(TERM B LOANS)
1. Assignor's Interest PRIOR to Assignment
(a) Term B Loan Commitment Percentage _______%
(b) Outstanding balance of Assignor's Term B Loan $ _______
2. Assigned Interest of Term B Loan (from Section 1) _______%
3. Assignee's Extensions of Credit AFTER Effective Date
(a) Total Outstanding balance of Assignee's Term B Loan $ _______
4. Retained Interest of Assignor AFTER Effective Date
(a) Retained Interest of Term B Loan
Commitment Percentage (from Section 1) _______%
(b) Outstanding balance of Assignor's Term B Loan $________
