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EXHIBIT 10.3
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CREDIT AGREEMENT
among
CLASSIC CABLE, INC.
as Borrower
THE LENDERS PARTIES HERETO,
UNION BANK OF CALIFORNIA, N.A.
and
XXXXXXX XXXXX CREDIT PARTNERS L.P.
as Co-Arrangers
XXXXXXX SACHS CREDIT PARTNERS L.P.
as Syndication Agent
and
UNION BANK OF CALIFORNIA, N.A.
as Administrative and Documentation Agent
Dated as of July 29, 1998
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS...................................................... 2
1.1 Defined Terms................................................. 2
1.2 Other Definitional Provisions................................. 27
SECTION 2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT;
COMMITMENT AMOUNTS............................................... 28
2.1 Revolving Loans and Letters of Credit; Revolving Loan
Commitment Amounts............................................ 28
2.2 Term Loans; Term Loan Commitment.............................. 32
2.3 Issuance of Letters of Credit................................. 35
2.4 Optional Prepayments.......................................... 38
2.5 Mandatory Prepayments......................................... 38
2.6 Conversion and Continuation Options........................... 41
2.7 Minimum Amounts of Tranches................................... 42
2.8 Interest Rates and Payment Dates.............................. 42
2.9 Computation of Interest and Fees.............................. 43
2.10 Inability to Determine Interest Rate.......................... 44
2.11 Pro Rata Treatment and Payments............................... 45
2.12 Illegality.................................................... 45
2.13 Increased Costs............................................... 46
2.14 U.S. Taxes.................................................... 47
2.15 Indemnity..................................................... 49
2.16 Unused Commitment Fees........................................ 50
2.17 Mitigation of Costs........................................... 50
2.18 Registered Loans.............................................. 50
SECTION 3. REPRESENTATIONS AND WARRANTIES................................... 51
3.1 Organization and Good Standing................................ 51
3.2 Power and Authority........................................... 51
3.3 Validity and Legal Effect..................................... 51
3.4 No Violation of Laws or Agreements............................ 51
3.5 Title to Assets; Existing Encumbrances; Legal Names........... 52
3.6 Capital Structure; Equity Ownership; Subordinated Debt........ 52
3.7 Subsidiaries and Affiliates................................... 52
3.8 Material Contracts............................................ 53
3.9 Taxes and Assessments......................................... 53
3.10 Litigation and Legal Proceedings.............................. 54
3.11 Accuracy of Financial Information............................. 54
3.12 Accuracy of Other Information................................. 54
3.13 Compliance with Laws Generally................................ 55
3.14 ERISA Compliance.............................................. 55
3.15 Environmental Compliance...................................... 56
3.16 Federal Regulations........................................... 57
3.17 Fees and Commissions.......................................... 57
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3.18 Representations and Warranties in Acquisition
Agreement..................................................... 57
3.19 Solvency...................................................... 57
3.20 Franchises.................................................... 57
3.21 The CATV Systems.............................................. 58
3.22 Rate Regulation............................................... 59
3.23 Investment Company Act; Public Utility Holding
Company Act................................................... 60
3.24 Nature of Business............................................ 60
3.25 Ranking of Loans.............................................. 61
SECTION 4. CONDITIONS PRECEDENT............................................. 61
4.1 Conditions to Closing Date.................................... 61
4.2 Conditions to Each Loan or Letter of Credit................... 65
4.3 Condition Subsequent.......................................... 66
SECTION 5. AFFIRMATIVE COVENANTS............................................ 66
5.1 Financial Statements.......................................... 66
5.2 Certificates; Other Information............................... 67
5.3 Payment of Obligations........................................ 69
5.4 Conduct of Business and Maintenance of Existence.............. 69
5.5 Maintenance of Property....................................... 70
5.6 Insurance..................................................... 70
5.7 Inspection of Property; Books and Records;
Discussions................................................... 70
5.8 Environmental Laws............................................ 71
5.9 Use of Proceeds............................................... 71
5.10 Compliance With Laws, Etc..................................... 72
5.11 Certain Obligations Respecting Subsidiaries;
Prohibitions on Certain Agreements............................ 72
5.12 Interest Rate Protection...................................... 73
5.13 Year 2000..................................................... 74
SECTION 6. NEGATIVE COVENANTS............................................... 74
6.1 Financial Condition Covenants................................. 74
6.2 Limitation on Indebtedness.................................... 76
6.3 Limitation on Liens........................................... 77
6.4 Limitation on Fundamental Changes............................. 78
6.5 Limitation on Sale of Assets.................................. 79
6.6 Limitation on Dividends....................................... 80
6.7 Limitation on Investments, Loans and Advances................. 80
6.8 Modifications of Certain Documents; Subordinated
Indebtedness; Certain Changes................................. 83
6.9 Transactions with Affiliates.................................. 84
6.10 Fiscal Year................................................... 84
6.11 Sale-Leaseback Transactions................................... 84
6.12 Management Fees............................................... 84
6.13 Lines of Business............................................. 84
6.14 Limitation on Equity Offerings................................ 85
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SECTION 7. EVENTS OF DEFAULT................................................ 85
SECTION 8. THE AGENT........................................................ 90
8.1 Appointment.................................................... 90
8.2 Delegation of Duties........................................... 91
8.3 Exculpatory Provisions......................................... 91
8.4 Reliance by the Agent.......................................... 91
8.5 Notice of Default.............................................. 92
8.6 Non-Reliance on the Agent and Other Lenders.................... 92
8.7 Indemnification................................................ 93
8.8 The Facility Agents in Their Individual Capacities............. 94
8.9 Successor Agent................................................ 94
8.10 Collateral Documents........................................... 94
SECTION 9. MISCELLANEOUS.................................................... 95
9.1 Amendments and Waivers......................................... 95
9.2 Notices........................................................ 96
9.3 No Waiver; Cumulative Remedies................................. 97
9.4 Survival of Representations and Warranties..................... 97
9.5 Payment of Expenses and Taxes.................................. 97
9.6 Successors and Assigns; Participations; Purchasing Lenders..... 99
9.7 Adjustments; Set-Off...........................................102
9.8 Counterparts...................................................103
9.9 Severability...................................................103
9.10 Integration....................................................103
9.11 GOVERNING LAW..................................................104
9.12 Acknowledgements...............................................104
9.13 Headings.......................................................104
9.14 Copies of Certificates, Etc....................................104
9.15 Treatment of Certain Information; Confidentiality..............104
9.16 Consent to Jurisdiction........................................105
9.17 WAIVER OF JURY TRIAL...........................................105
9.18 Interest Rates.................................................106
Exhibits
A-1 Form of Revolving Note
A-2 Form of Term Note
B Form of Assignment and Acceptance
C Form of Quarterly Officer's Report
D Form of Covenant Compliance Certificate
E Form of Continuation Notice
F Form of Letter of Credit Request
G Form of Regulatory Opinion
H Form of Borrowing Notice
Schedules
2.1 Commitments
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3.1 Business Qualification Jurisdictions
3.5 Legal and Trade Names
3.7 Subsidiaries and Affiliates
3.8 Material Contracts
3.9 Net Operating Losses
3.10 Litigation
3.17 Certain Fees
3.20 Franchises
3.21 Certain Matters Relating to CATV Systems
3.22 Effective Competition with respect to CATV Systems
6.2 Indebtedness
6.3 Liens
6.7 Investments
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CREDIT AGREEMENT
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THIS CREDIT AGREEMENT, dated as of July 29, 1998, among (1) CLASSIC
CABLE, INC., a Delaware corporation (the "Borrower"), (2) the several banks and
other financial institutions from time to time parties to this Agreement (the
"Lenders"), (3) UNION BANK OF CALIFORNIA, N.A. and XXXXXXX XXXXX CREDIT PARTNERS
L.P., as Co-Arrangers, (4) XXXXXXX SACHS CREDIT PARTNERS L.P., as Syndication
Agent, (5) UNION BANK OF CALIFORNIA, N.A., as Documentation Agent and (6) UNION
BANK OF CALIFORNIA, N.A., as Administrative Agent for the Lenders hereunder (in
such capacity, the "Agent").
RECITALS
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A. Black Creek Communications, Inc., as buyer, and Cable One, Inc., as
seller ("Cable One") have entered into that certain Asset Purchase Agreement
dated as of May 14, 1998, the buyer's interest under which has been assigned to
Black Creek Communications, L.P., a Delaware limited partnership and a
wholly-owned subsidiary of the Borrower ("Black Creek"), pursuant to an
Assignment of Asset Purchase Agreement dated as of June 19, 1998 (such
agreement, as it amended by such Assignment and as it may be further amended
from time to time, the "Acquisition Agreement"). Pursuant to the Acquisition
Agreement Black Creek will purchase certain cable television systems and related
assets located in Kansas, Missouri, Oklahoma and Texas (such acquisition, the
"Cable One Acquisition") for a purchase price not more than $42,500,000 (as such
price may be adjusted pursuant to the Acquisition Agreement).
B. The Borrower has requested that the Lenders extend loans and make
available letters of credit to it from time to time, in an aggregate amount not
exceeding $125,000,000, for the purposes of (i) refinancing certain existing
indebtedness, (ii) consummating the Cable One Acquisition and additional
Permitted Acquisitions, (iii) funding working capital and capital expenditures
and (iv) funding general corporate purposes, in each case on the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
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SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"Access Lines": communication transmission lines that
connect customers of a Telephone System to switching centers that
are part of a Telephone System.
"Accountants": Ernst & Young LLP, or such other firm of
independent certified public accountants of recognized national
standing as shall be selected by the Borrower and satisfactory to
the Agent.
"Acquisition Agreement": as defined in the Recitals hereto.
"Affiliate": as to any Person, (a) any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person, (b) any Person who is a director, officer, shareholder or partner
(i) of such Person, (ii) of any Subsidiary of such Person or (iii) of any Person
described in the preceding clause (a), (c) any spouse, immediate family member
or other relative who has the same principal residence of any Person described
in the preceding clauses (a) and (b), or (d) any trust in which any such Person
described in the preceding clauses (a), (b) or (c) is the principal beneficiary.
For purposes of this definition, "control" of a Person means the power, directly
or indirectly, either to (i) vote securities having 5% or more of the ordinary
voting power for the election of directors of such Person or (ii) direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise.
"Agent": as defined in the preamble hereto.
"Aggregate Available Revolving Loan Commitment": the sum of
the Available Revolving Loan Commitments of each Lender.
"Aggregate Commitment": the sum of the Aggregate Revolving
Loan Commitment and the Aggregate Term Loan Commitment.
"Aggregate Revolving Loan Commitment": the sum of the
Revolving Loan Commitments set forth on the signature pages
hereto, as the same may be adjusted from time to time pursuant to
the provisions hereof.
"Aggregate Term Loan Commitment": the sum of the Term Loan
Commitments set forth on the signature pages hereto.
"Agreement": this Credit Agreement, as amended, waived,
supplemented or otherwise modified from time to time.
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"Annualized Operating Cash Flow": as at any date, the product of (i)
Operating Cash Flow for the fiscal quarter ending on or most recently ended
prior to such date times (ii) four; provided that with respect to any
calculation of Annualized Operating Cash Flow made as of March 31 of any fiscal
year, "Annualized Operating Cash Flow" shall be equal to the product of (x)
Operating Cash Flow for the two consecutive fiscal quarter period ending on
March 31 times (y) two.
"Applicable Lending Office": for any Lender, its offices for LIBOR
Loans, Base Rate Loans and participations in Letters of Credit, specified below
its signature on the signature pages hereof or in the Assignment and Acceptance
pursuant to which it became a party hereto, as the case may be, any of which
offices may, upon 10 days' prior written notice to the Agent and the Borrower,
be changed by such Lender.
"Applicable Revolving Loan Margin": with respect to
Revolving Loans, for each LIBOR Loan and for each Base Rate Loan
as set forth below:
Revolving Loan
Leverage Level LIBOR Base Rate
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1(>=6.75:1) +2.250% +1.250%
2(<6.75:1->=6.25:1) +2.125% +1.125%
3(<6.25:1->=5.75:1) +2.000% +1.000%
4(<5.75:1->=5.25:1) +1.875% +0.875%
5(<5.25:1->=4.75:1) +1.750% +0.750%
6(<4.75:1) +1.625% +0.625%
"Applicable Term Loan Margin": with respect to Term Loans,
for each LIBOR Loan and for each Base Rate Loan as set forth
below:
Term Loan
Leverage Level LIBOR Base Rate
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1(>= 5.50:1) +2.625% +1.625%
2(< 5.50:1) +2.250% +1.250%
"Applicable Margin": the Applicable Revolving Loan Margin or the
Applicable Term Loan Margin, as applicable.
"Asset Disposition": the sale, sale and leaseback, transfer,
conveyance, exchange, long-term lease accorded sales treatment under GAAP or
similar disposition (including by means of a merger, consolidation,
amalgamation, joint venture or other substantive combination) of any of the
Properties, business or assets (other than marketable securities, including
"margin stock" within the meaning of Regulation U, liquid investments and other
financial instruments but, including, without limitation,
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the assignment of any lease, license or permit relating to the Properties) of
the Borrower or any of its Subsidiaries to any Person or Persons other than to
the Borrower or any of its Wholly Owned Subsidiaries; provided that Asset
Dispositions shall not include the sale or other disposition in the ordinary
course of business and on ordinary business terms of assets in an aggregate
amount not exceeding $500,000.
"Assignment and Acceptance": an Assignment and Acceptance substantially
in the form of Exhibit B to this Agreement.
"Available Revolving Loan Commitment": with respect to each Lender
having a Revolving Loan Commitment on the date of determination thereof, the
amount by which (a) the Revolving Loan Commitment of such Lender on such date
exceeds (b) the principal sum of such Lender's (i) Revolving Loans outstanding,
(ii) Revolving Loan Commitment Percentage of the aggregate Letter of Credit
Amount of all Letters of Credit outstanding and (iii) Revolving Loan Commitment
Percentage of the aggregate amount of unreimbursed drawings under all Letters of
Credit on such date.
"Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Reference
Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. "Reference Rate" shall mean the rate of interest per
annum publicly announced from time to time by Union Bank of California, N.A. as
its "reference rate" in effect at its office in Los Angeles, California.
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Agent from three
federal funds brokers of recognized standing selected by it. If, for any reason,
the Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including, without limitation, the inability or failure of the
Agent to obtain sufficient quotations in accordance with the terms hereof, the
Base Rate shall be determined without regard to clause (b) of the first sentence
of this definition until the circumstances giving rise to such inability no
longer exist. Any change in the Base Rate due to a change in the Reference Rate
or the Federal Funds Effective Rate shall be effective on the effective date of
such change in the Reference Rate or the Federal Funds Effective Rate,
respectively.
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"Base Rate Loans": Loans the rate of interest applicable to which is
based upon the Base Rate.
"Basic Subscribers": as at any date, Subscribers who subscribe to a
CATV System at the regular basic monthly subscription rate for such CATV System
to a single household Subscriber (exclusive of "secondary outlets," as such term
is commonly understood in the cable television industry), plus (b) the number of
Subscribers determined by dividing the aggregate dollar monthly amount billed to
bulk Subscribers (hotels, motels, apartment buildings, hospitals and the like),
by the regular basic monthly subscription rate for basic service charged by the
CATV System in which such bulk Subscriber is located.
"Xxxxxxx Note": that series of promissory notes made by J. Xxxxxxx
Xxxxxxx and payable to the Borrower in the aggregate original principal amount
of $196,998.
"Black Creek": as defined in the Recitals hereto.
"Borrower": as defined in the preamble hereto.
"Borrowing Notice": a notice from the Borrower to the Agent requesting
a borrowing of Loans, substantially in the form of Exhibit G hereto.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in the State of California or New York City are
authorized or required by law to close and which, in the case of a LIBOR Loan,
is a Eurodollar Business Day.
"Cable One Acquisition": as defined in the recitals hereto.
"Capital Expenditures": for any period, expenditures (including,
without limitation, the aggregate amount of Capitalized Lease Obligations
incurred during such period) made by the Borrower or any of its Subsidiaries to
acquire or construct fixed assets, plant and equipment (including renewals,
improvements and replacements, but excluding repairs and excluding also the
Acquisition or any Permitted Acquisition) during such period computed in
accordance with GAAP.
"Capitalized Lease Obligations": obligations for the payment of rent
for any real or personal property under leases or agreements to lease that, in
accordance with GAAP, have been or should be capitalized on the books of the
lessee and, for purposes hereof, the amount of any such obligation shall be the
capitalized amount thereof determined in accordance with GAAP.
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"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation), any and
all warrants, options or rights to purchase any of the foregoing or any other
securities convertible into any of the foregoing.
"Cash Collateral Deposit": cash deposits made by the Borrower to the
Agent, to be held by the Agent as Collateral in the Collateral Account pursuant
to the Security Agreement, for the reimbursement of drawings under Letters of
Credit.
"Cash Income Taxes": cash income taxes paid by the Borrower and its
Subsidiaries during the fiscal quarter most recently ended and the immediately
preceding three fiscal quarters.
"Casualty Event": with respect to any Property of any Person, any loss
of or damage to, or any condemnation or other taking of, such Property for which
such Person or any of its Subsidiaries receives insurance proceeds, or proceeds
of a condemnation award or other compensation.
"CATV System": any cable distribution system that receives broadcast
signals by antennae, microwave transmission, satellite transmission or any other
form of transmission and that amplifies such signals and distributes them to
Persons who pay to receive such signals.
"Co-Arranger": as defined in the preamble hereto.
"CCI": Classic Communications, Inc., a Delaware corporation.
"CCI Indenture": that certain Indenture dated as of July 29, 1998,
between the CCI and Banc One, N.A. as trustee, as it may be amended or otherwise
modified from time to time in accordance with the terms hereof.
"CCI Notes": $114,000,000 Classic Communications, Inc. Units Consisting
of 13 1/4% Senior Discount Notes due 2009 (consisting of $59,979,960 gross
proceeds) issued pursuant to the CCI Indenture.
"Classic Telephone": Classic Telephone, Inc., a Delaware corporation.
"Closing Date": the date on which the conditions precedent set forth in
Section 4.1 have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
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"Collateral": all of the property (tangible or intangible) purported to
be subject to the lien or security interest purported to be created by any
mortgage, deed of trust, security agreement, pledge agreement, assignment or
other security document heretofore or hereafter executed by the Borrower as
security for all or part of the Obligations.
"Collateral Account": as defined in Section 5 of the Security
Agreement.
"Collateral Documents": the Security Agreement, all notices of security
interests in deposit accounts requested by the Agent pursuant to the Security
Agreement, all Form UCC-1 Financing Statements and amendments thereto and any
other document encumbering the Collateral or evidencing or perfecting a security
interest therein for the benefit of the Lenders executed by the Borrower.
"Commitment Percentage": as to any Lender at any time, the percentage
of the Aggregate Commitment then constituted by such Lender's Commitments.
"Commitments": as to any Lender, any Revolving Loan Commitment and any
Term Loan Commitment held by it hereunder.
"Commonly Controlled Entity": as to any Person, an entity, whether or
not incorporated, which is under common control with such Person within the
meaning of Section 4001 of ERISA or is part of a group which includes such
Person and which is treated as a single employer under Section 414 of the Code.
"Communications Act": the Communications Act of 1934, as amended, and
the rules and regulations issued thereunder, as from time to time in effect.
"Continuation Notice": a request for continuation or conversion of a
Loan as set forth in Section 2.6, substantially in the form of Exhibit E.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Covenant Compliance Certificate": a certificate of a senior financial
officer of the Borrower substantially in the form of Exhibit D hereto.
"Cumulative Credit": as defined in the Subordinated Indenture.
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"Cumulative Interest Expense": as defined in the Subordinated
Indenture.
"Debt Offering": any issuance or sale by CCI, the Borrower or any of
their respective Subsidiaries of any debt securities.
"Debt Service": for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) in the case of Revolving Loans
under this Agreement, the aggregate amount of payments of principal of such
Loans that, giving effect to Commitment reductions scheduled to be made during
such period pursuant to Section 2.1(e), were required to be made pursuant to
this Agreement during such period plus (b) in the case of all other
Indebtedness, all regularly scheduled payments or regularly scheduled
prepayments of principal of Indebtedness (including, without limitation, the
principal component of any payments in respect of Capitalized Lease Obligations,
but excluding prepayments under Section 2.5 hereof) made during such period plus
(c) all Interest Expense for such period.
"Default": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States.
"Drawing Lender": as defined in Section 2.3(c).
"Employee Nonrecourse Guarantees": each Employee Nonrecourse Guarantee,
in form and substance reasonably satisfactory to the Co-Arrangers, made by each
Shareholder Employee in favor of the Agent, for the benefit of the Lenders, as
the same may be amended from time to time in accordance with the terms hereof.
"Employee Pledge Agreements": each Employee Pledge Agreement, in form
and substance reasonably satisfactory to the Co-Arrangers, made by each
Shareholder Employee in favor of the Agents for the benefit of the Lenders, as
the same may be amended from time to time in accordance within the terms hereof.
"Environmental Control Statutes": as defined in Section 3.15.
"Equity Offering": (a) the sale or issuance (or reissuance) by the
Borrower, any Subsidiary, or CCI of any equity interest (common stock, preferred
stock, partnership interests, limited
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liability company interests or otherwise) or any options, warrants, convertible
securities or other rights to purchase such beneficial or equity interests, or
(b) the receipt by the Borrower, any Subsidiary or CCI of any capital
contribution (whether or not evidenced by any equity security); provided that
Equity Offering shall not include (i) any exercise of a warrant for which the
respective exercise price is nominal, (ii) any such issuance or sale by any
Subsidiary of the Borrower to the Borrower or any Wholly Owned Subsidiary of the
Borrower, (iii) any capital contribution by the Borrower or any Wholly Owned
Subsidiary of the Borrower to any Subsidiary of the Borrower or (iv) any such
issuance or sale of stock in the Borrower the proceeds of which are applied
concurrently with the receipt thereof (or within 10 Business Days thereafter) to
consummate a Permitted Acquisition pursuant to Section 6.7(h).
"Equity Rights": with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including, without limitation, any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or securities convertible
into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, such Person.
"Equityholder Agreements" each shareholder agreement, limited liability
company agreement, partnership agreement, voting agreement, buy-sell agreement,
option, warrant, put, call, or right of first refusal, and any other agreement
or instrument with conversion rights into equity of the Borrower or any
Subsidiary either (a) between the Borrower or any Subsidiary and any holder or
prospective holder of any equity interest of the Borrower or any Subsidiary
(including interests convertible into such equity) or (b) otherwise between any
two or more such holders of equity interests.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate": as to any Person, each trade or business including
such Person, whether or not incorporated, which together with such Person would
be treated as a single employer under Section 4001(a)(14) of ERISA.
"Eurodollar Business Day": any day on which banks are open for dealings
in Dollar deposits in the London Interbank Market.
"Event of Default": any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
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"Excess Cash Flow": for any period, the excess of (a) the sum of (i)
Operating Cash Flow for such period plus (ii) cash receipts during such period
in respect of any extraordinary or non-recurring gains to the extent not
required pursuant to Section 2.5(b) to be applied to the prepayment of the Loans
and reductions of the Commitments (or minus cash payments during such period in
respect of any extraordinary or non-recurring losses) over (b) the sum of (i)
Fixed Charges for such period (minus the amount of any Capital Expenditures to
the extent financed with the proceeds of Indebtedness incurred pursuant to
Section 6.2(g) during such period) plus (ii) the excess, if any, of Working
Investment at the end of such period over Working Investment at the beginning of
such period (or minus the excess, if any of Working Investment at the beginning
of such period over Working Investment at the end of such period).
"Existing Credit Agreement": the Amended and Restated Credit Agreement
dated as of October 31, 1995 among the Borrower and WTAC, as borrowers, the
lenders referred to therein, and The Chase Manhattan Bank, as agent for such
lenders.
"FCC": the Federal Communications Commission or any successor thereto.
"Facility Agent": as defined in Section 8.1.
"Federal Funds Effective Rate": as defined in the definition of "Base
Rate" contained in this Section 1.1.
"Fixed Charge Coverage Ratio": as at the last day of any fiscal
quarter, the ratio of Annualized Operating Cash Flow as at such last day to
Fixed Charges for the four quarter period ending on such day.
"Fixed Charges": for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (i) Debt Service for such period, (ii)
Capital Expenditures for such period and (iii) Cash Income Taxes for such
period.
"Franchise": a franchise, license, authorization or right by contract
or otherwise to construct, own, operate, promote, extend and/or otherwise
exploit any CATV System or Telephone System operated or to be operated by the
Borrower or any of its Subsidiaries granted by any state, county, city, town,
village or other local or state government authority or by the FCC. The term
"Franchise" shall include each of the Franchises set forth on Schedule 3.20
hereto.
"GAAP": generally accepted accounting principles in the United States
in effect from time to time. If, at any time, GAAP changes in a manner which
will materially affect the calculations
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determining compliance by the Borrower with any of the covenants in Section 6.1,
such covenants shall continue to be calculated in accordance with GAAP in effect
prior to such changes in GAAP.
"Governmental Authority": any nation or government, any federal, state
or other political subdivision thereof and any federal, state or local entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GSCP": Xxxxxxx Xxxxx Credit Partners L.P.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation (without duplication) of (a) the guaranteeing person or (b)
another Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds for the purchase or payment of any such primary obligation or to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lesser of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guarantees": the guarantees made by each of the Guarantors and all
other guarantees executed by a guarantor in favor of the
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Agent for the benefit of the Lenders, in form and substance reasonably
satisfactory to the Co-Arrangers, as the same may be amended or modified from
time to time in accordance with the terms hereof.
"Guarantor Collateral": all of the property (tangible or intangible)
purported to be subject to the lien or security interest purported to be created
by any mortgage, deed of trust, security agreement, pledge agreement, assignment
or other security document heretofore or hereafter executed by any Guarantor as
security for all or part of the Obligations or the Guarantees.
"Guarantor Collateral Documents": the Guarantor Security Agreements,
all notices of security interests in deposit accounts requested by the Agent
pursuant to the Guarantor Security Agreements, all Form UCC-1 Financing
Statements and amendments thereto and any other document encumbering the
Guarantor Collateral or evidencing or perfecting a security interest therein for
the benefit of the Lenders executed by any Guarantor.
"Guarantor Security Agreements": (i) each Subsidiary Security
Agreement, in form and substance reasonably satisfactory to the Co-Arrangers,
made by each Subsidiary in favor of the Agent, for the benefit of the Lenders,
(ii) the Pledge Agreement and (iii) each Employee Pledge Agreement, as the same
may be amended from time to time in accordance with the terms hereof.
"Guarantors": (i) each Subsidiary, (ii) CCI and (iii) each Shareholder
Employee.
"Hazardous Material": collectively, (a) any petroleum or petroleum
products, flammable materials, explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, and transformers or other equipment that contain
polychlorinated biphenyls ("PCB's"), (b) any chemicals or other materials or
substances that are now or hereafter become defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous wastes", "restricted hazardous wastes", "toxic substances",
"toxic pollutants", "contaminants", "pollutants" or words of similar import
under any Environmental Control Statute and (c) any other chemical or other
material or substance, exposure to which is now or hereafter prohibited, limited
or regulated under any Environmental Control Statute.
"Indebtedness": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than trade liabilities (other than for
borrowed money) incurred in the ordinary course of business so long as such
trade liabilities are payable within 90 days of the date the respective
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goods are delivered or the respective services are rendered) or which is
evidenced by a note, bond, debenture or similar instrument, (b) all obligations
of such Person under Capitalized Lease Obligations, (c) all obligations of such
Person in respect of acceptances issued or created for the account of such
Person, (d) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable for
the payment thereof, (e) all obligations of such Person, whether absolute or
contingent, in respect of letters of credit opened for the account of such
Person (other than any letters of credit opened for the purpose of facilitating
the purchase of goods and services in the ordinary course of business and having
a term of not more than 360 days), (f) all obligations of such Person under
Non-Compete Agreements and (g) all Guarantee Obligations of such Person in
respect of any indebtedness, obligations or liabilities of any other Person of
the type referred to in clauses (a) through (g) of this definition.
"Initial Stockholders": collectively, (a) J. Xxxxxxx Xxxxxxx, (b)
NationsBanc Capital Investors, (c) Xxxxxx X. Seach, (d) BT Capital Partners,
Inc. and Austin Ventures, L.P.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Expense": for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (i) all interest on Total Debt
(including, without limitation, the interest component of any payments in
respect of Capitalized Lease Obligations) which was paid, payable and/or accrued
for such period (without duplication of previous amounts and without including
"PIK" interest or similar interest, if any, which is not required under the
terms of the instrument creating such Indebtedness to be paid currently in
cash), (ii) all commitment, letter of credit or line of credit fees paid,
payable and/or accrued for such period (without duplication of previous amounts)
to any lender in exchange for such lender's commitment to lend, (iii) net
amounts payable (or receivable) under all Interest Rate Agreements and (iv) all
Restricted Payments made to CCI pursuant to Section 6.6(iii); provided, however,
that if, as at any date (a "calculation date"), fewer than four complete
consecutive fiscal quarters have elapsed subsequent to the Closing Date,
Interest Expense shall be calculated only for the portion of such period
commencing on the Closing Date and ending on the calculation date and shall then
be annualized by multiplying the amount of such Interest Expense by a fraction,
the numerator of which is 365 and denominator of which is the number of days
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during the period commencing on the day immediately following the Closing Date
through and including the calculation date.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day of
each March, June, September and December to occur while the Loans are
outstanding, (b) as to any LIBOR Loan having an Interest Period of three months
or less, the last day of such Interest Period, (c) as to any LIBOR Loan having
an Interest Period longer than three months, each day which is at the end of
each three month-period within such Interest Period after the first day of such
Interest Period and the last day of such Interest Period and (d) for each of
(a), (b) and (c) above, on the day on which the Term Loans and the Revolving
Loans become due and payable in full and are paid or prepaid in full.
"Interest Period": with respect to any LIBOR Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such LIBOR Loan and ending one, two,
three or six months thereafter, as selected by the Borrower in its notice of
borrowing or Continuation Notice, as the case may be, given with respect
thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such LIBOR Loan and ending one, two,
three or six months thereafter, as selected by the Borrower by irrevocable
notice to the Agent not less than three Eurodollar Business Days prior to the
last day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period pertaining to a LIBOR Loan would
otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond
the date final payment is due on the Term Loans or the Revolving Loans,
as applicable, shall end on the date of such final payment; and
(iii) any Interest Period pertaining to a LIBOR Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month.
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"Interest Rate Agreement": any interest rate protection agreement,
interest rate future, interest rate option, interest rate swap, interest rate
cap or other interest rate hedge or arrangement which is designed solely to
protect against fluctuations in interest rates (and does not increase the
Indebtedness of the obligor outstanding at any time other than as a result of
fluctuations in interest rates) under which the Borrower is a party or a
beneficiary.
"Investment Banking Fee": pursuant to an agreement between J. Xxxxxxx
Xxxxxxx and Xxxxxx X. Seach, on the one hand, and the Borrower, on the other
hand, a fee to be paid by the Borrower to such individuals (i) on the Closing
Date in connection with the Acquisition in the aggregate amount of $550,000 and
(ii) thereafter from time to time in connection with the consummation of each
Permitted Acquisition, in an amount equal to not more than 1.0% of the purchase
price paid for such Permitted Acquisition.
"Lenders": as defined in the preamble hereto and Section 8.8 hereof.
"Letter of Credit": as defined in Section 2.1(a).
"Letter of Credit Amount": the stated maximum amount available to be
drawn under a particular Letter of Credit, as such amount may be reduced or
reinstated from time to time in accordance with the terms of such Letter of
Credit.
"Letter of Credit Request": a request by the Borrower for the issuance
of a Letter of Credit, on the Agent's standard form of Application for
Irrevocable Standby Letter of Credit, the current form of which is attached
hereto as Exhibit F, and containing terms and conditions satisfactory to the
Agent in its sole discretion.
"Leverage Level": the Revolving Loan Leverage Level or the Term Loan
Leverage Level, as applicable.
"LIBOR": with respect to any LIBOR Loan for any Interest Period
therefor, the arithmetic mean (rounded upwards, if necessary, to the nearest
1/16 of 1%), as determined by the Agent, of the rates per annum quoted by the
respective Reference Lenders at approximately 11:00 a.m. London time (or as soon
thereafter as practicable) on the date two Business Days prior to the first day
of such Interest Period for the offering by the respective Reference Lenders to
leading banks in the London interbank market of Dollar deposits having a term
comparable to such Interest Period and in an amount comparable to the principal
amount of the LIBOR Loan to be made by the respective Reference Lenders for such
Interest Period. If any Reference Lender is not participating in any LIBOR Loans
during any Interest Period
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therefor, LIBOR for such Loans for such Interest Period shall be determined by
reference to the amount of such Loans that such Reference Lender would have made
or had outstanding had it been participating in such Loan during such Interest
Period.
"LIBOR Adjusted Rate": with respect to each day during each Interest
Period pertaining to a LIBOR Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
LIBOR
---------------------------------
1.00 - LIBOR Reserve Requirements
"LIBOR Loans": Loans the rate of interest applicable to which is based
upon LIBOR.
"LIBOR Reserve Requirements": for any day as applied to a LIBOR Loan,
the aggregate (without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such Federal Reserve System.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any Capitalized Lease Obligation having substantially the
same economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing).
"Loan": a Revolving Loan or a Term Loan.
"Loan Documents": this Agreement, the Notes, any Letter of Credit
Requests that are executed by the Borrower, the Collateral Documents, the
Guarantor Collateral Documents and the Guarantees and any other agreement
executed by an Obligor in connection therewith and herewith including, but not
limited to, UCC-1 Financing Statements, as such agreements and documents may be
amended, supplemented and otherwise modified from time to time in accordance
with the terms hereof.
"Majority Lenders": Lenders having at least 66-2/3% of the sum of (a)
the aggregate outstanding principal amounts of the
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Term Loans or, if the Term Loans shall not have been made, the aggregate
outstanding principal amount of the Term Loan Commitments, plus (b) the sum of
(i) the Aggregate Available Revolving Loan Commitment at such time plus (ii) the
aggregate outstanding principal amount of the Revolving Loans plus (iii) the
aggregate amount of all participations purchased by lenders in any outstanding
Letters of Credit or unreimbursed drawings under Letters of Credit at such time.
"Majority Revolving Loan Lenders": Revolving Loan Lenders having at
least 66-2/3% of the aggregate amount of the Revolving Commitments or, if the
Revolving Loan Commitments shall have terminated, Lenders holding at least
66-2/3% of the sum of (a) the aggregate unpaid principal amount of the Revolving
Loans plus (b) the aggregate amount of all participations purchased by Lenders
in any outstanding Letters of Credit or unreimbursed drawings under Letters of
Credit at such time.
"Margin Stock": as defined in Regulation U.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, financial condition, prospects, liabilities or
capitalization of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of any Obligor to perform its respective obligations under the Loan
Documents, (c) the validity or enforceability of any of the Loan Documents or
the rights or remedies of the Agent and the Lenders hereunder or thereunder or
(d) the timely payment of the principal of or interest on the Loans or other
amounts payable in connection therewith.
"Material Contracts": as defined in Section 3.8.
"Maximum Senior Debt Ratio": as at any date, for the Borrower and its
Subsidiaries on a consolidated basis, the ratio of Senior Debt on such date
(calculated with reference to the last paragraph of Section 2.5(b)) to
Annualized Operating Cash Flow as at such date.
"Maximum Total Debt Ratio": as at any date, for the Borrower and its
Subsidiaries on a consolidated basis, the ratio of Total Debt on such date
(calculated with reference to the last paragraph of Section 2.5(b)) to
Annualized Operating Cash Flow as at such date.
"Multiemployer Plan": a plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Proceeds": (A) with respect to any Asset Disposition, the net
amount equal to the aggregate amount received in cash, and the fair market value
of any non-cash consideration received, in connection with such Asset
Disposition minus the sum of (a)
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the reasonable fees, commissions and other out-of-pocket expenses incurred by
the Borrower or any of its Subsidiaries in connection with such Asset
Disposition (other than amounts payable to Affiliates of the Person making such
disposition), (b) Indebtedness, other than the Loans, required to be paid as a
result of such Asset Disposition and (c) federal, state and local taxes incurred
and paid in connection with such Asset Disposition; (B) with respect to any
Equity Offering, the net amount equal to the aggregate amount received in cash
in connection with such Equity Offering minus the reasonable fees, commissions
and other out-of-pocket expenses incurred by the Borrower in connection with
such Equity Offering (other than amounts payable to Affiliates of the Person
making such Equity Offering); and (C) with respect to any Casualty Event, the
aggregate amount of proceeds of insurance, condemnation awards and other
compensation received by the Borrower and its Subsidiaries in respect of such
Casualty Event net of (i) reasonable expenses incurred by the Borrower and its
Subsidiaries in connection therewith and (ii) contractually required repayments
of Indebtedness to the extent secured by a Lien on such Property and any income
and transfer taxes payable by the Borrower and its Subsidiaries in respect of
such Casualty Event.
"Non-Compete Agreements": all agreements pursuant to which the Borrower
or any Subsidiary has agreed to make payments (whether in cash or in kind) to
another Person for the agreement of such Person not to compete with the Borrower
or such Subsidiary in a given area.
"Nonrecourse Guarantee": a Shareholder Nonrecourse Guarantee in form
and substance reasonably satisfactory to the Co-Arrangers, made by CCI in favor
of the Agent, for the benefit of the Lenders, as the same may be amended from
time to time in accordance with the terms hereof.
"Note": a Revolving Note or a Term Note, as the case may be, and
"Notes" shall mean the Revolving Notes and/or the Term Notes, as the case may
be.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Term Loans and
the Revolving Loans and interest accruing on or after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and whether or not at a
default rate) the Notes, the obligation to reimburse drawings under Letters of
Credit (including the contingent obligation to reimburse any drawings under
outstanding Letters of Credit) and all other obligations and liabilities of the
Obligors to the Agent, the Co-Arrangers
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and the Lenders, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, the Notes, the Letters of Credit, any
other Loan Document and any other document made, delivered or given in
connection herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all reasonable fees and disbursements of counsel (including
the allocated reasonable cost of internal counsel) to the Agent, the
Co-Arrangers or the Lenders that are required to be paid by the Borrower
pursuant to the terms of this Agreement) or otherwise.
"Obligor": the Borrower, each Guarantor and any other Person (other
than a Lender) obligated under any Loan Document.
"Operating Cash Flow": for any period, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) the aggregate gross operating
revenue for such period derived in the ordinary course of business in respect of
the CATV Systems and Telephone Systems, and the other businesses permitted
pursuant to Section 6.13, of the Borrower and its Subsidiaries (including
revenues arising from second outlets and remotes and advertising revenues, and
including pay-per-view revenues and installation fees, but excluding interest
income and unusual items) minus (b) all operating expenses for such period,
including, without limitation, technical, programming, selling and general
administration expenses incurred by the Borrower and its Subsidiaries, but
excluding (to the extent included in operating expenses) Interest Expense,
amortization, depreciation, income and withholding taxes, other non-cash charges
and extraordinary gains or losses plus (c) for each fiscal quarter of the
Borrower and its Subsidiaries ending on June 30, 1998, September 30, 1998,
December 31, 1998 and March 31, 1999, $125,000 plus (d) the effect of any
cancellation of the Xxxxxxx Note during such period (to the extent such effect
is included in operating expenses) plus (e) any Investment Banking Fee incurred
during such period (to the extent included in operating expenses) plus (f) for
any period ending prior to January 1, 2000, extraordinary bonuses paid to
employees of the Borrower or its Subsidiaries in an aggregate amount not to
exceed $500,000 in any fiscal year of the Borrower and its Subsidiaries.
Notwithstanding the foregoing, with respect to any calculation of
Operating Cash Flow for any periods occurring prior to consummation of the
Acquisition, such calculation shall be made (i) in compliance with Section
1.2(e) and (ii) for periods prior to July 1, 1998, such that the Acquisition is
included in such calculation for such period on a pro forma basis as if it
occurred on the first day of such period.
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"Organic Documents": relative to any entity, its certificate or
articles of incorporation or organization, its by-laws or operating agreement,
any Equityholder Agreements, its partnership agreement, and any other agreements
or documents relating to the control or management of any such entity (whether
existing as corporation, a partnership, a limited liability company or
otherwise).
"Other Communications Business": any U.S. domestic internet service
provider, U.S. domestic data service provider, U.S. domestic long distance
services provider, U.S. domestic direct broadcast satellite services (DBS)
provider, U.S. domestic multichannel multipoint distribution services (MMDS)
provider or U.S. domestic local multipoint distribution services (LMDS)
provider.
"Participant": as defined in Section 9.6(b).
"Pay TV Units": the aggregate number of premium or pay television
services to which Subscribers subscribe.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA or any successor thereto.
"Permitted Acquisition": the acquisition (whether by way of purchase of
assets or stock, by merger or consolidation or otherwise) by the Borrower, or
any Wholly Owned Subsidiary of the Borrower, of any (i) U.S. domestic CATV
System or (ii) Other Communications Business.
"Person": any individual, firm, partnership, joint venture,
corporation, association, limited liability company, business enterprise trust,
unincorporated organization, government or department or agency thereof or other
entity, whether acting in an individual, fiduciary or other capacity.
"Plan": as to any Person, any plan (other than a Multiemployer Plan)
subject to Title IV of ERISA maintained for employees of such Person or any
ERISA Affiliate of such Person (and any such plan no longer maintained by such
Person or any of such Person's ERISA Affiliates to which such Person or any of
such Person's ERISA Affiliates has made or was required to make any
contributions within any of the five preceding years).
"Pledge Agreement": a Shareholder Pledge Agreement in form and
substance reasonably satisfactory to the Co-Arrangers, made by CCI in favor of
the Agent, for the benefit of the Lenders, as the same may be amended from time
to time in accordance with the terms hereof.
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"Pro Forma Debt Service": as at the last day of any fiscal quarter,
Debt Service for the period of four consecutive fiscal quarters immediately
following such last day, determined under the assumptions that (i) the rate of
interest applicable to Indebtedness of the Borrower and its Subsidiaries during
such period will not change from the blended average rate of interest in effect
on such last day and (ii) all regularly scheduled payments or prepayments of
principal of Indebtedness (including, without limitation, the principal
component of any payments in respect of Capitalized Lease Obligations) required
to be made during such period will be made when due.
"Pro Forma Debt Service Coverage Ratio": as at the last day of any
fiscal quarter, the ratio of (a) Annualized Operating Cash Flow as at such last
day to (b) Pro Forma Debt Service as at such last day.
"Prohibited Transaction": with respect to any Plan, a prohibited
transaction (as defined in Section 406 of ERISA) with respect to such Plan.
"Properties": the collective reference to the real and personal
(tangible and intangible) property owned, leased, used, occupied or operated,
under license or permit, (i) by the Obligors (other than CCI and the Shareholder
Employees) and (ii) by CCI and/or the Shareholder Employees, to the extent
encumbered by the Pledge Agreement or the Employee Pledge Agreements, as
applicable.
"Purchasing Lenders": as defined in Section 9.6(c).
"Qualified Public Offering": an offer or offerings of common stock of
CCI under one or more effective registration statements under the Securities Act
of 1933, as amended, such that, after giving effect thereto, (i) at least 20% of
the common stock of CCI on a fully diluted basis (i.e., giving effect to the
exercise of any warrants, options and conversion and other rights) has been sold
pursuant to such offerings, and (ii) such offerings result in aggregate cash
proceeds being received by CCI of at least U.S. $25,000,000 exclusive of
underwriter's discounts and other expenses.
"Quarterly Officer's Report": a report of a senior financial officer of
the Borrower substantially in the form of Exhibit C hereto.
"Reference Lenders": Union Bank of California, N.A. and such other
Lenders, if any, that are from time to time party hereto as shall be specified
by the Borrower and agreed to by the Co-Arrangers as "Reference Lenders"
hereunder.
"Register": as defined in Section 9.6(d).
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"Registered Loans": as defined in Section 2.18.
"Registered Notes": as defined in Section 2.18.
"Regulation D": Regulation D of the Board of Governors of the Federal
Reserve System, as the same is from time to time in effect, and all official
rulings and interpretations thereunder or thereof and any successor regulation
thereto.
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System, as the same is from time to time in effect, and all official
rulings and interpretations thereunder or thereof and any successor regulation
thereto.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under PBGC regulations.
"Requirement of Law": as to any Person, the Organic Documents of such
Person, and any law, treaty, rule or regulation, determination or policy
statement or interpretation of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Reserved Amount": with respect to any Asset Disposition, any
appropriate amount provided by the Borrower and its Subsidiaries as a reserve,
in accordance with GAAP, against any liabilities associated with such Asset
Disposition and retained by the Borrower or any of its Subsidiaries after such
Asset Disposition, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Disposition as reflected in a certificate of a senior financial
officer of the Borrower delivered to the Lenders at the time of such Asset
Disposition.
"Responsible Officer": with respect to the Borrower or any Subsidiary,
the chief executive officer, the president, any executive vice president, any
senior vice president or any vice president of such entity, or, with respect to
financial matters, the chief financial officer, treasurer or controller of such
entity.
"Restricted Payments": as defined in Section 6.6.
"Revolving Loan": as defined in Section 2.1(a).
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"Revolving Loan Commitment": with respect to each Lender having a
Revolving Loan Commitment, its commitment listed as its "Revolving Loan
Commitment" in Schedule 2.1 hereto to make Revolving Loans and participate in
Letters of Credit hereunder through its Applicable Lending Office, as the same
shall be adjusted from time to time pursuant to this Agreement.
"Revolving Loan Commitment Expiration Date": January 31, 2007 or such
earlier date as the Aggregate Revolving Loan Commitment shall expire (whether by
acceleration, reduction to zero or otherwise).
"Revolving Loan Commitment Percentage": with respect to each Revolving
Loan Lender, the percentage equivalent of the ratio which such Revolving Loan
Lender's Revolving Loan Commitment bears to the Aggregate Revolving Loan
Commitment, as such Revolving Loan Lender's Revolving Loan Commitment and the
Aggregate Revolving Loan Commitment may be adjusted from time to time pursuant
to the terms hereof.
"Revolving Loan Lender": each Lender having a Revolving Loan Commitment
and/or which shall have (i) Revolving Loans outstanding and/or (ii)
participations in Letters of Credit which are outstanding.
"Revolving Loan Leverage Level": with respect to Revolving Loans, the
Leverage Level set forth opposite the applicable Maximum Total Debt Ratio in the
table below:
Maximum Total Debt Ratio Leverage Level
------------------------ --------------
greater than or equal to 6.75:1 1
less than 6.75:1 and greater than
or equal to 6.25:1 2
less than 6.25:1 and greater than
or equal to 5.75:1 3
less than 5.75:1 and greater than
or equal to 5.25:1 4
less that 5.25:1 and greater than
or equal to 4.75:1 5
less than 4.75:1 6
"Revolving Note" and "Revolving Notes": as defined in Section 2.1(c).
"Security Agreement": the Security Agreement in form and substance
reasonably satisfactory to the Co-Arrangers made by the
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Borrower in favor of the Agent, for the benefit of the Lenders, in respect of
the tangible and intangible personal property of the Borrower described therein,
as the same may be amended from time to time in accordance with the terms
hereof.
"Senior Debt": Total Debt other than Subordinated Indebtedness.
"Shareholder Employee": each of Xxxxxx Xxxxxx, Xxxxx Xxxxxxxx and Xxxxx
Xxxxxxxxx.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, that:
(i) the present fair salable value of such Person's assets is
in excess of the total amount of the probable liability on such
Person's liabilities;
(ii) such Person is able to pay its debts as they become due;
and
(iii) such Person does not have unreasonably small capital to
carry on such Person's business as theretofore operated and all
businesses in which such Person is about to engage.
"Subordinated Indebtedness": the Subordinated Notes.
"Subordinated Indenture": that certain Indenture dated as of July 29,
1998, between the Borrower and Chase Bank of Texas, National Association, as
trustee, as it may be amended or otherwise modified, or replaced pursuant to a
refinancing of the Subordinated Indebtedness permitted under Section 6.2(h),
from time to time in accordance with the terms hereof.
"Subordinated Notes": $125,000,000 Classic Cable, Inc. 9 7/8% Senior
Subordinated Notes due 2008 issued pursuant to the Subordinated Indenture, as
such notes may be refinanced in accordance with Section 6.2(h).
"Subscriber": a Person who subscribes to one or more of the cable
television services of the Borrower and its Subsidiaries and includes both Basic
Subscribers and Persons who subscribe to Pay TV Units, but excluding each such
Person whose account is more than 120 days past due.
"Subsidiary": as to any Person at any time of determination, a
corporation, partnership or other entity of which shares of stock or other
ownership interests having ordinary voting power to elect a majority of the
board of
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directors or other persons performing similar functions of such corporation,
partnership or other entity (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries
or Subsidiaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Syndication Agent": as defined in the preamble hereto.
"Tax Sharing Agreement": a Tax Sharing Agreement, in form and substance
acceptable to the Agent, among CCI, the Borrower and each of its Subsidiaries,
as amended or modified from time to time in accordance with the terms hereof.
"Telephone System": any local telephone exchange providing telephone
and related services to customers by Access Lines.
"Term Loan": as defined in Section 2.2(a).
"Term Loan Commitment": with respect to each Lender having a Term Loan
Commitment, the commitment listed as its "Term Loan Commitment" in Schedule 2.1
hereto to make a Term Loan hereunder through its Applicable Lending Office, as
the same may be adjusted pursuant to the provisions hereof.
"Term Loan Commitment Percentage": with respect to each Term Loan
Lender, the percentage equivalent of the ratio which such Term Loan Lender's
Term Loan Commitment bears to the Aggregate Term Loan Commitment.
"Term Loan Lenders": each Lender having a Term Loan Commitment and/or
which shall have Term Loans outstanding.
"Term Loan Leverage Level": with respect to Term Loans, the Leverage
Level set forth opposite the applicable Maximum Total Debt Ratio in the table
below:
Maximum Total Debt Ratio Leverage Level
------------------------ --------------
greater than or equal to 5:50:1 1
less than 5:50:1 2
"Term Loan Maturity Date": October 31, 2007 or such earlier date as the
Aggregate Term Loan Commitment shall expire (whether by acceleration, reduction
to zero or otherwise).
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"Term Loan Reduction Dates": the dates on which scheduled principal
payments of the Term Loans are due, as set forth in the table in Section 2.2(d).
"Term Note" and "Term Notes": as defined in Section 2.2(c).
"Termination Event": (i) a Reportable Event, (ii) the institution of
proceedings to terminate a Single Employer Plan by the PBGC under Section 4042
of ERISA, (iii) the appointment by the PBGC of a trustee to administer any
Single Employer Plan or (iv) the existence of any other event or condition that
would reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment by the PBGC of a trustee to
administer, any Single Employer Plan.
"Total Debt": the aggregate principal amount of all Indebtedness of the
Borrower and its Subsidiaries (including subordinated indebtedness and
Capitalized Lease Obligations).
"Total Interest Coverage Ratio": as at the last day of any fiscal
quarter, the ratio of Annualized Operating Cash Flow as at such last day to
Interest Expense for the four quarter period ending on such day.
"Tranche": the collective reference to LIBOR Loans the Interest Periods
with respect to all of which begin on the same date and end on the same later
date (whether or not such LIBOR Loans shall originally have been made on the
same day).
"Transferee": as defined in Section 9.6(g).
"Type": as to any Term Loan or any Revolving Loan, its nature as a Base
Rate Loan or a LIBOR Loan.
"U.S. Person": as defined in Section 2.14.
"Weighted Average Life to Maturity": when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding aggregate
principal amount of such Indebtedness.
"Wholly Owned Subsidiary": with respect to any Person, any corporation,
partnership or other entity of which all of the equity securities or other
ownership interests (other than, in the case of a corporation, directors'
qualifying shares) are directly or indirectly owned or controlled by such Person
or one
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or more Wholly Owned Subsidiaries of such Person. Notwithstanding the foregoing,
so long as Universal Cable Holding, Inc. holds at least 75% of the issued and
outstanding shares of stock of Universal Cable Communications Inc., Universal
Cable of Beaver, Oklahoma, Inc. and Universal Cable Midwest, Inc., each of such
entities shall be deemed to be a Wholly Owned Subsidiary of Universal Cable
Holding, Inc. for purposes hereof.
"Working Investment": as at any date of determination thereof, the sum,
for the Borrower and its Subsidiaries (determined on a consolidated basis,
without duplication, in accordance with GAAP) of the following: (a) the sum of
(i) the unpaid face amount of all accounts receivable as at such date plus (ii)
the aggregate amount of prepaid expenses and other current assets (other than
cash) as at such date (but excluding from prepaid expenses and current assets,
any current portion of programming rights) minus (b) the sum of (i) the unpaid
amount of all accounts payable as at such date plus (ii) the aggregate amount of
all accrued expenses as at such date (but excluding from accounts payable and
accrued expenses, the current portion of long-term debt, the aggregate principal
amount of Loans as at such date and all accrued interest and taxes).
"WTAC": WT Acquisition Corporation, a Delaware corporation.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have such defined meanings
when used in the Notes, any other Loan Document or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein, in the Notes, in any other Loan Document, and in
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in Section 1.1 and accounting terms partly defined
in Section 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) For the purpose of determining financial covenant compliance
hereunder for any period (including with respect to Permitted Acquisitions
pursuant to Section 6.7(h)(vi)), acquisitions, divestitures, and asset sales
occurring during such
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period (or intended to occur during such period in the case of a potential
Permitted Acquisition) will be included in the calculations for such period on a
pro forma basis, and will be deemed to have occurred on the first day of such
period.
(f) So long as the Borrower and its Subsidiaries shall be included in
consolidated Federal income tax returns filed by CCI pursuant to the Tax Sharing
Agreement, whenever making determinations under this Agreement of the amount of
Federal income taxes payable during any period (or the amount of refunds in
respect of such taxes receivable during any period) by the Borrower and its
Subsidiaries, the amount of such taxes payable or receivable shall be deemed to
be equal to the amounts payable or receivable, as the case may be, in respect to
such taxes under the Tax Sharing Agreement without reference to whether CCI and
its Subsidiaries as an affiliated group shall in fact pay any amounts in respect
of Federal income taxes (or receive any amounts in respect of refunds of Federal
income taxes) during the relevant period.
SECTION 2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT; COMMITMENT
AMOUNTS
2.1 Revolving Loans and Letters of Credit; Revolving Loan Commitment
Amounts. (a) Subject to the terms and conditions hereof, each Lender having a
Revolving Loan Commitment severally agrees to (i) make loans on a revolving
credit basis through its Applicable Lending Office to the Borrower from time to
time from and including the Closing Date to but excluding the Revolving Loan
Commitment Expiration Date (each a "Revolving Loan", and collectively, the
"Revolving Loans") in accordance with the provisions of this Agreement and (ii)
participate through its Applicable Lending Office in letters of credit issued
for the account of the Borrower pursuant to Section 2.3 from time to time from
and including the Closing Date to but excluding the Revolving Loan Commitment
Expiration Date (each a "Letter of Credit", and collectively, the "Letters of
Credit"); provided, however, that the sum of (A) the aggregate principal amount
of all Revolving Loans outstanding, (B) the aggregate Letter of Credit Amount of
all Letters of Credit outstanding and (C) the aggregate amount of unreimbursed
drawings under all Letters of Credit shall not exceed the Aggregate Revolving
Loan Commitment at any time; and provided, further, that the sum of (x) the
aggregate Letter of Credit Amount of all Letters of Credit outstanding and (y)
the aggregate amount of unreimbursed drawings under all Letters of Credit shall
not exceed $5,000,000 at any time. Within the limits of each Revolving Loan
Lender's Revolving Loan Commitment, the Borrower may borrow, have Letters of
Credit issued for the Borrower' account, prepay Revolving Loans, reborrow
Revolving Loans, and have additional Letters of
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Credit issued for the Borrower' account after the expiration of previously
issued Letters of Credit.
The principal amount of each Revolving Loan Lender's (A) Revolving Loan
and (B) participation in a Letter of Credit shall be in an amount equal to the
product of (i) such Revolving Loan Lender's Revolving Loan Commitment Percentage
and (ii) the total amount of the Revolving Loan or Revolving Loans, or the
Letter of Credit or Letters of Credit, requested; provided that in no event
shall any Revolving Loan Lender be obligated to make a Revolving Loan or
participate in a Letter of Credit if after giving effect to such Revolving Loan
or such participation the sum of such Revolving Loan Lender's (x) Revolving
Loans outstanding, (y) Revolving Loan Commitment Percentage of the aggregate
Letter of Credit Amount of all Letters of Credit outstanding and (z) Revolving
Loan Commitment Percentage of the aggregate amount of unreimbursed drawings
under all Letters of Credit would exceed its Revolving Loan Commitment or if the
amount of such requested Revolving Loan or such Revolving Loan Lender's
Revolving Loan Commitment Percentage of such Letter of Credit is in excess of
such Revolving Loan Lender's Available Revolving Loan Commitment.
(b) Subject to Sections 2.10 and 2.12, the Revolving Loans may from
time to time be (i) LIBOR Loans, (ii) Base Rate Loans or (iii) a combination
thereof, as determined by the Borrower and notified to the Agent in accordance
with either Section 2.1(d) or 2.6; provided that the Borrower shall cause any
LIBOR Loans borrowed during July or August 1998 to have an Interest Period
ending no later than August 31, 1998, and shall thereafter cause all Loans to be
Base Rate Loans for a period (the "Syndication Period") ending not earlier than
the day it receives notice from the Co-Arrangers to the effect that the initial
syndication of the Loans has been successfully completed (provided further that
the Syndication Period shall not exceed 10 Business Days). Each Revolving Loan
Lender may make or maintain its Revolving Loans or participate in Letters of
Credit to or for the account of the Borrower by or through any Applicable
Lending Office.
(c) The Revolving Loans made by each Revolving Loan Lender to the
Borrower shall be evidenced by a promissory note of the Borrower, substantially
in the form of Exhibit A-1 (a "Revolving Note"), with appropriate insertions
therein as to payee, date and principal amount, payable to the order of such
Revolving Loan Lender and representing the obligations of the Borrower to pay
the aggregate unpaid principal amount of all Revolving Loans made by such
Revolving Loan Lender to the Borrower pursuant to Section 2.1(a) or 2.3(c), with
interest thereon as prescribed in Sections 2.8 and 2.9. Each Revolving Loan
Lender is hereby authorized (but not required) to record the date and amount of
each payment or prepayment of principal of its Revolving Loans made to the
Borrower, each continuation thereof, each conversion of all or a portion thereof
to another Type and, in the case of
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LIBOR Loans, the length of each Interest Period with respect thereto, in the
books and records of such Revolving Loan Lender, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded.
The failure of any Revolving Loan Lender to make any such recordation or
notation in the books and records of the Revolving Loan Lender (or any error in
such recordation or notation) shall not affect the obligations of the Borrower
hereunder or under the Revolving Notes. Each Revolving Note shall (i) be dated
the Closing Date, (ii) provide for the payment of interest in accordance with
Sections 2.8 and 2.9 and (iii) be stated to be payable in full on the Revolving
Loan Commitment Expiration Date.
(d) The Borrower shall give the Agent irrevocable written notice,
substantially in the form of a Borrowing Notice (which Borrowing Notice must be
received by the Agent prior to 10:00 A.M., Los Angeles time, one Business Day
prior to each proposed borrowing date or, if all or any part of the Revolving
Loans are requested to be made as LIBOR Loans, three Eurodollar Business Days
prior to each proposed borrowing date) requesting that the Revolving Loan
Lenders make the Revolving Loans on the proposed borrowing date and specifying
(i) the aggregate amount of Revolving Loans requested to be made, (ii) whether
the Revolving Loans are to be LIBOR Loans, Base Rate Loans or a combination
thereof and (iii) if the Revolving Loans are to be entirely or partly LIBOR
Loans, the respective amounts of each such Type of Revolving Loan and the
respective lengths of the initial Interest Periods therefor. On receipt of such
Borrowing Notice, the Agent shall promptly notify each Revolving Loan Lender
thereof not later than 11:00 A.M., Los Angeles time, on the date of receipt of
such notice. On the proposed borrowing date, not later than 10:00 A.M., Los
Angeles time, each Revolving Loan Lender shall make available to the Agent at
its office specified in Section 9.2 the amount of such Revolving Loan Lender's
pro rata share of the aggregate borrowing amount (as determined in accordance
with the second paragraph of Section 2.1(a)) in immediately available funds. The
Agent may, in the absence of notification from any Revolving Loan Lender that
such Revolving Loan Lender has not made its pro rata share available to the
Agent, on such date, credit the account of the Borrower on the books of such
office of the Agent with the aggregate amount of Revolving Loans.
(e) On each date set forth below, the Aggregate Revolving Loan
Commitment shall automatically reduce to the corresponding amount set forth
below:
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Reduced Aggregate
Effective Date of Reduction Revolving Loan Commitment
--------------------------- -------------------------
March 31, 2001 $49,000,000
June 30, 2001 48,000,000
September 30, 2001 47,000,000
December 31, 2001 46,000,000
March 31, 2002 44,750,000
June 30, 2002 43,500,000
September 30, 2002 42,250,000
December 31, 2002 41,000,000
March 31, 2003 39,125,000
June 30, 2003 37,250,000
September 30, 2003 35,375,000
December 31, 2003 33,500,000
March 31, 2004 31,312,500
June 30, 2004 29,125,000
September 30, 2004 26,937,500
December 31, 2004 24,750,000
March 31, 2005 21,937,500
June 30, 2005 19,125,000
September 30, 2005 16,312,500
December 31, 2005 13,500,000
March 31, 2006 10,125,000
June 30, 2006 6,750,000
September 30, 2006 3,375,000
In addition, the Borrower shall have the right at any time or from time
to time, subject to clauses (f) and (g) below, to terminate or reduce the
Aggregate Revolving Loan Commitment provided that, (i) the Borrower shall have
given the Agent ten Business Days' prior written notice thereof and (ii) each
partial reduction shall be in an aggregate amount at least equal to $1,000,000.
(f) Reductions of the Aggregate Revolving Loan Commitment pursuant to
this Section 2.1 or Section 2.5 shall automatically effect a reduction of the
Revolving Loan Commitment of each Revolving Loan Lender to an amount equal to
the product of (i) the Aggregate Revolving Loan Commitment of all Revolving Loan
Lenders, as reduced pursuant to this Section 2.1 or Section 2.5 and (ii) the
Revolving Loan Commitment Percentage of such Revolving Loan Lender immediately
prior to such reduction of the Aggregate Revolving Loan Commitment on such date.
(g) Upon each reduction or termination of the Aggregate Revolving Loan
Commitment, the Borrower shall (i) pay the unused commitment fee, payable
pursuant to Section 2.16, accrued on the amount of the Aggregate Revolving Loan
Commitment through the date of such reduction or termination, as the case may
be, (ii) prepay the amount, if any, by which the sum of (A) the
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aggregate unpaid principal amount of the Revolving Loans, (B) the aggregate
Letter of Credit Amount of all Letters of Credit outstanding and (C) the
aggregate amount of unreimbursed drawings under all Letters of Credit exceeds
the amount of the Aggregate Revolving Loan Commitment as so reduced (or, if the
Aggregate Revolving Loan Commitment is being terminated, prepay all of (A) the
aggregate unpaid principal amount of the Revolving Loans, (B) the aggregate
Letter of Credit Amount of all Letters of Credit outstanding and (C) the
aggregate amount of unreimbursed drawings under all Letters of Credit), together
in each case with accrued interest on the amount being prepaid to the date of
such prepayment (or, with respect to outstanding Letters of Credit, (x) make a
Cash Collateral Deposit in an amount equal to such excess to the extent such
excess is not corrected by the foregoing prepayment (in the case of a reduction)
or (y) made a Cash Collateral Deposit in an amount equal to the aggregate Letter
of Credit Amount of all Letters of Credit outstanding (in the case of a
termination)) and (iii) compensate the Revolving Loan Lenders for their funding
costs, if any, in accordance with Section 2.15.
(h) Neither the Agent nor any Revolving Loan Lender shall be
responsible for the obligation or Available Revolving Loan Commitment of any
other Revolving Loan Lender hereunder, nor will the failure of any Revolving
Loan Lender to comply with the terms of this Agreement relieve any other
Revolving Loan Lender or the Borrower of their obligations under this Agreement
and the Revolving Notes. Nothing herein shall be deemed to relieve any Revolving
Loan Lender from its obligation to fulfill its Commitments hereunder or to
prejudice any rights which the Borrower may have against any Revolving Loan
Lender as a result of any default by such Revolving Loan Lender hereunder.
(i) The Revolving Loan Commitment of each Revolving Loan Lender and the
Aggregate Revolving Loan Commitment shall terminate on the Revolving Loan
Commitment Expiration Date. All outstanding Revolving Loans shall be due and
payable, to the extent not previously paid in accordance with the terms hereof,
on the Revolving Loan Commitment Expiration Date.
2.2 Term Loans; Term Loan Commitment. (a) Subject to the terms and
conditions hereof, each Lender having a Term Loan Commitment severally agrees to
make a term loan (each, a "Term Loan" and, collectively, the "Term Loans") to
the Borrower on the Closing Date in a principal amount equal to the amount of
the Term Loan Commitment of such Lender.
(b) Subject to Sections 2.10 and 2.12, the Term Loans may from time to
time be (i) LIBOR Loans, (ii) Base Rate Loans or (iii) a combination thereof, as
determined by the Borrower and notified to the Agent in accordance with either
Section 2.2(e) or 2.6. Each Term Loan Lender may make or maintain its Term Loan
to
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the Borrower by or through any Applicable Lending Office; provided that the
Borrower shall cause any LIBOR Loans borrowed during July or August 1998 to have
an Interest Period ending no later than August 31, 1998, and shall thereafter
cause all Loans to be Base Rate Loans during the Syndication Period (provided
further that the Syndication Period shall not exceed 10 Business Days).
(c) The Term Loan made by each Term Loan Lender to the Borrower shall
be evidenced by a promissory note of the Borrower, substantially in the form of
Exhibit A-2 (a "Term Note"), with appropriate insertions therein as to payee,
date and principal amount, payable to the order of such Term Loan Lender and
representing the obligations of the Borrower to pay the aggregate unpaid
principal amount of the Term Loan made by such Term Loan Lender to the Borrower
pursuant to Section 2.2(a), with interest thereon as prescribed in Sections 2.8
and 2.9. Each Term Loan Lender is hereby authorized (but not required) to record
the date and amount of each payment or prepayment of principal of its Term Loan
made to the Borrower, each continuation thereof, each conversion of all or a
portion thereof to another Type and, in the case of LIBOR Loans, the length of
each Interest Period with respect thereto, in the books and records of such Term
Loan Lender, and any such recordation shall constitute prima facie evidence of
the accuracy of the information so recorded. The failure of any Term Loan Lender
to make any such recordation or notation in the books and records of the Term
Loan Lender (or any error in such recordation or notation) shall not affect the
obligations of the Borrower hereunder or under the Term Notes. Each Term Note
shall (i) be dated the Closing Date, (ii) provide for the payment of interest in
accordance with Sections 2.8 and 2.9 and (iii) be stated to be payable in
installments of principal in accordance with, and subject to the provisions of,
Section 2.2(d).
(d) On each Term Loan Reduction Date, the Borrower shall repay the
principal of the Term Notes in an aggregate amount equal to the amount set forth
below opposite such Term Loan Reduction Date:
Principal
Term Loan Reduction Date Payment
------------------------ ---------
March 31, June 30, September 30 $187,500
and December 31, 2000
March 31, June 30, September 30 187,500
and December 31, 2001
March 31, June 30, September 30 187,500
and December 31, 2002
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March 31, June 30, September 30 187,500
and December 31, 2003
March 31, June 30, September 30 187,500
and December 31, 2004
March 31, June 30, September 30 187,500
and December 31, 2005
March 31, June 30, September 30 187,500
and December 31, 2006
March 31, 2007 187,500
June 30 and October 31, 2007 34,781,250
; provided, that the final installment paid shall be in an amount equal to all
amounts owed by the Borrower on the Term Notes.
All outstanding Term Loans shall be due and payable, to the extent not
previously paid in accordance with the terms hereof, on the Term Loan Maturity
Date. The aggregate amount payable to any Term Loan Lender on any Term Loan
Reduction Date shall be determined in accordance with the provisions of Section
2.11.
(e) The Borrower shall give the Agent irrevocable written notice,
substantially in the form of a Borrowing Notice (which Borrowing Notice must be
received by the Agent prior to 10:00 A.M., Los Angeles time, one Business Day
prior to the Closing Date) requesting that the Term Loan Lenders make the Term
Loans on the Closing Date. Upon receipt of such Borrowing Notice the Agent shall
promptly notify each Term Loan Lender thereof not later than 11:00 A.M., Los
Angeles time, on the date of receipt of such Borrowing Notice. Not later than
10:00 A.M., Los Angeles time, on the Closing Date each Term Loan Lender shall
make available to the Agent at its office specified in Section 9.2 the amount of
such Term Loan Lender's Term Loan Commitment in immediately available funds. The
Agent may, in the absence of notification from any Term Loan Lender that such
Term Loan Lender has not made its pro rata share available to the Agent, on such
date, credit the account of the Borrower on the books of such office of the
Agent with the aggregate Term Loans.
(f) Neither the Agent nor any Term Loan Lender shall be responsible for
the obligations or Term Loan Commitment of any other Term Loan Lender hereunder,
nor will the failure of any Term Loan Lender to comply with the terms of this
Agreement relieve any other Term Loan Lender or the Borrower of their
obligations under this Agreement and the Term Notes. Nothing herein shall be
deemed to relieve any Term Loan Lender from its obligation to fulfill its
Commitment hereunder or to prejudice any rights which the Borrower may have
against any Term Loan
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Lender as a result of any default by such Term Loan Lender hereunder.
2.3 Issuance of Letters of Credit.
(a) The Borrower shall be entitled to request the issuance of Letters
of Credit from time to time from and including the Closing Date to but excluding
the date which is two Business Days prior to the Revolving Loan Commitment
Expiration Date, by giving the Agent a Letter of Credit Request at least three
Business Days before the requested date of issuance of such Letter of Credit
(which shall be a Business Day). Any Letter of Credit Request received by the
Agent later than 10:00 a.m., Los Angeles time, shall be deemed to have been
received on the next Business Day. Each Letter of Credit Request shall be made
in writing, shall be signed by a Responsible Officer, shall be irrevocable and
shall be effective upon receipt by the Agent. Provided that a valid Letter of
Credit Request has been received by the Agent and upon fulfillment of the other
applicable conditions set forth in Section 4.2, the Agent will issue the
requested Letter of Credit from its office specified in Section 9.2. No Letter
of Credit shall have an expiration date later than two Business Days prior to
the Revolving Loan Commitment Expiration Date.
(b) Immediately upon the issuance of each Letter of Credit, the Agent
shall be deemed to have sold and transferred to each Revolving Loan Lender, and
each Revolving Loan Lender shall be deemed to have purchased and received from
the Agent, in each case irrevocably and without any further action by any party,
an undivided interest and participation in such Letter of Credit, each drawing
thereunder and the obligations of the Borrower under this Agreement in respect
thereof in an amount equal to the product of (i) such Revolving Loan Lender's
Revolving Loan Commitment Percentage and (ii) the maximum amount available to be
drawn under such Letter of Credit (assuming compliance with all conditions to
drawing). The Agent shall promptly advise each Revolving Loan Lender of the
issuance of each Letter of Credit, the Letter of Credit Amount of such Letter of
Credit, any change in the face amount or expiration date of such Letter of
Credit, the cancellation or other termination of such Letter of Credit and any
drawing under such Letter of Credit.
(c) The payment by the Agent of a draft drawn under any Letter of
Credit shall first be made from any Cash Collateral Deposit held by the Agent
with respect to such Letter of Credit. After any such Cash Collateral Deposit
has been applied, the payment by the Agent of a draft drawn under any Letter of
Credit shall constitute for all purposes of this Agreement the making by the
Agent in its individual capacity as a Lender hereunder (in such capacity, the
"Drawing Lender") of a Base Rate Loan in the amount of such payment (but without
any requirement of compliance with the conditions set forth in Section 4.2). In
the event that
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any such Loan by the Drawing Lender resulting from a drawing under any Letter of
Credit is not repaid by the Borrower by 12:00 noon, Los Angeles time, on the day
of payment of such drawing, the Agent shall promptly notify each other Revolving
Loan Lender. Each Revolving Loan Lender shall, on the day of such notification
(or if such notification is not given by 3:00 p.m., Los Angeles time, on such
day, then on the next succeeding Business Day), make a Base Rate Loan, which
shall be used to repay the applicable portion of the Base Rate Loan of the
Drawing Lender with respect to such Letter of Credit drawing, in an amount equal
to the amount of such Revolving Loan Lender's participation in such drawing for
application to repay the Drawing Lender (but without any requirement of
compliance with the applicable conditions set forth in Section 4.2) and shall
deliver to the Agent for the account of the Drawing Lender, on the day of such
notification (or if such notification is not given by 3:00 p.m., Los Angeles
time, on such day, then on the next succeeding Business Day) and in immediately
available funds, the amount of such Base Rate Loan. In the event that any
Revolving Loan Lender fails to make available to the Agent for the account of
the Drawing Lender the amount of such Base Rate Loan, the Drawing Lender shall
be entitled to recover such amount on demand from such Revolving Loan Lender
together with interest thereon at the Federal Funds Effective Rate for each day
such amount remains outstanding.
(d) The obligations of the Borrower with respect to any Letter of
Credit, any Letter of Credit Request and any other agreement or instrument
relating to any Letter of Credit and any Base Rate Loan made under Section
2.3(c) shall be absolute, unconditional and irrevocable and shall be paid
strictly in accordance with the terms of the aforementioned documents under all
circumstances, including the following:
(i) any lack of validity or enforceability of any Letter of
Credit, this Agreement or any other Loan Document;
(ii) the existence of any claim, setoff, defense or other
right that the Borrower may have at any time against any beneficiary or
transferee of any Letter of Credit (or any Person for whom any such beneficiary
or transferee may be acting), the Agent, any Lender (other than the defense of
payment to a Lender in accordance with the terms of this Agreement) or any other
Person, whether in connection with this Agreement, any other Loan Document, the
transactions contemplated hereby or thereby or any unrelated transaction;
(iii) any statement or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect, or any statement therein being untrue or inaccurate in any respect
whatsoever; and
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(iv) any exchange, release or nonperfection of any Collateral
or other collateral, or any release, amendment or waiver of or consent to
departure from any Guarantee, other Loan Document or other guaranty, for any of
the Obligations of the Borrower in respect of the Letters of Credit.
(e) The Borrower shall pay to the Agent for the account of the
Revolving Loan Lenders with respect to each Letter of Credit issued hereunder,
for the period from and including the day such Letter of Credit is issued to but
excluding the day such Letter of Credit expires, a letter of credit fee equal to
the product of (i) the Applicable Revolving Loan Margin for LIBOR Loans per
annum and (ii) the Letter of Credit Amount of such Letter of Credit from time to
time, such letter of credit fee to be payable quarterly in arrears on the last
day of each March, June, September and December and on the expiration date of
such Letter of Credit.
(f) The Borrower shall pay to the Agent for its own account, with
respect to each Letter of Credit issued hereunder, (i) for the period from and
including the day such Letter of Credit is issued to but excluding the day such
Letter of Credit expires, a fronting fee in respect of each Letter of Credit in
an amount equal to 1/4 of 1% per annum of the Letter of Credit Amount of such
Letter of Credit from time to time, such fronting fee to be payable quarterly in
arrears on the last day of each March, June, September and December and on the
expiration date of such Letter of Credit and (ii) from time to time such
additional fees and charges (including cable charges) as are generally
associated with letters of credit, in accordance with the Agent's standard
internal charge guidelines and the related Letter of Credit Request.
(g) The Borrower agrees to the provisions in the Letter of Credit
Request form; provided, however, that the terms of the Loan Documents shall take
precedence if there is any inconsistency between the terms of the Loan Documents
and the terms of said form.
(h) The Borrower assumes all risks of the acts or omissions of any
beneficiary or transferee of any Letter of Credit with respect to its use of
such Letter of Credit. Neither the Agent nor any Lender nor any of their
respective officers or directors shall be liable or responsible for (i) the use
that may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; or (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement thereof, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged. In furtherance and not in limitation of the foregoing, the
Agent may accept any document that appears on its face to be in order,
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without responsibility for further investigation, regardless of any notice or
information to the contrary.
(i) The Borrower hereby indemnifies and holds harmless each Revolving
Loan Lender and the Agent from and against any and all claims and damages,
losses, liabilities, costs or expenses that such Lender or the Agent may incur
(or that may be claimed against such Lender or the Agent by any Person
whatsoever) by reason of or in connection with the execution and delivery or
transfer of or payment or refusal to pay by the Agent, as issuer of any Letter
of Credit; provided that the Borrower shall not be required to indemnify any
Lender or the Agent for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by (x) the willful
misconduct or gross negligence of the Agent, as issuer of such Letter of Credit,
in determining whether a request presented under any Letter of Credit complied
with the terms of such Letter of Credit or (y) in the case of the Agent, as
issuer of such Letter of Credit, the Agent's failure to pay under any Letter of
Credit after the presentation to it of a request strictly complying with the
terms and conditions of such Letter of Credit. Nothing in this Section 2.3 is
intended to limit the other obligations of the Borrower, any Lender, or the
Agent under this Agreement.
2.4 Optional Prepayments. The Borrower may at any time and from time to
time, prepay the Loans, in whole or in part, without premium or penalty, upon at
least three Business Days' irrevocable written notice, in the case of LIBOR
Loans, and upon at least one Business Day's irrevocable written notice, in the
case of Base Rate Loans, from the Borrower to the Agent, specifying the date and
amount of prepayment and whether the prepayment is of LIBOR Loans, Base Rate
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each and whether the prepayment is of Term Loans or Revolving
Loans, or a combination thereof, and, if a combination thereof, the amount
allocable to each. Upon receipt of any such notice from the Borrower, the Agent
shall promptly notify each Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable by the Borrower on the
date specified therein, together with accrued interest to such date on the
amount prepaid and any amounts payable pursuant to Section 2.15. Partial
prepayments of Term Loans shall be applied to the installments of principal
thereof in inverse order of maturity. Amounts prepaid on account of the Term
Loans may not be reborrowed. Partial prepayments of Loans shall be in an
aggregate principal amount of $1,000,000 and integral multiples of $250,000 in
excess thereof.
2.5 Mandatory Prepayments. (a) Excess Cash Flow. Not later than thirty
days after the delivery of annual audited financial statements of the Borrower
and its Subsidiaries for each fiscal year (commencing with the fiscal year
ending
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December 31, 2000), the Borrower shall prepay the Loans (and such prepayment
shall be applied as set forth in Section 2.5(f)) in an aggregate amount equal to
the excess of (a) 75% of Excess Cash Flow for such fiscal year over (B) the
aggregate amount of prepayments of Term Loans made during such fiscal year
pursuant to Section 2.4.
(b) Sale of Assets. Without limiting the obligation of the Borrower to
obtain the consent of the Majority Lenders pursuant to Section 6.5 hereof to any
Asset Disposition not otherwise permitted hereunder, no later than five Business
Days prior to the occurrence of any such Asset Disposition, the Borrower will
deliver to the Lenders a statement, certified by a senior financial officer of
the Borrower in form and detail satisfactory to the Agent, of the estimated
amount of the Net Proceeds of such Asset Disposition and, to the extent such Net
Proceeds (when taken together with the Net Proceeds of all prior Asset
Dispositions as to which a prepayment has not yet been made under this paragraph
(b)) shall exceed $2,000,000, the Borrower shall prepay the Loans (and such
prepayment shall be applied as set forth in Section 2.5(f)) in an aggregate
amount equal to 100% of the Net Proceeds of such Asset Disposition (together
with 100% of the Net Proceeds of all prior Asset Dispositions as to which a
prepayment has not yet been made under this paragraph (b)).
Notwithstanding the foregoing, the Borrower shall not be required to
make a prepayment pursuant to this paragraph (b) with respect to the Net
Proceeds from any Asset Disposition in the event that the Borrower advises the
Agent at the time the Net Proceeds from such Asset Disposition are received that
it or its Subsidiary that consummated such Asset Disposition, as the case may
be, intends to reinvest such Net Proceeds into replacement assets pursuant to a
Permitted Acquisition (and for these purposes Reserved Amounts arising in
connection with any Asset Disposition shall be deemed to be a reinvestment in
replacement assets), so long as
(i) such Net Proceeds are held by the Agent in the Collateral
Account pending such reinvestment (and in that connection, the Agent
need not release such Net Proceeds except upon presentation of evidence
satisfactory to it that such Net Proceeds are to be so reinvested in
compliance with the provisions of this Agreement),
(ii) the Net Proceeds from any Asset Disposition are in fact
so reinvested within six months of such Asset Disposition (it being
understood that, in the event the Collateral Account shall hold Net
Proceeds from more than one Asset Disposition, such Net Proceeds shall
be deemed to be released in the same order in which such Asset
Dispositions occurred and any such Net Proceeds so held for more than
six months shall be forthwith applied to the
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prepayment of Loans (and such prepayment shall be applied as
set forth in Section 2.5(f)) and
(iii)if the aggregate amount of Net Proceeds (together with
investment earnings thereon) so held at any time by the Agent pending
reinvestment as contemplated by this sentence shall exceed $10,000,000,
such excess amount shall be forthwith applied to the prepayment of
Loans (and such prepayment shall be applied as set forth in Section
2.5(f)).
Nothing in this paragraph (b) shall be deemed to obligate the Agent to
release any of such proceeds from the Collateral Account to the Borrower for
purposes of reinvestment as aforesaid upon the occurrence and during the
continuance of any Event of Default.
During any period in which amounts are on deposit in the Cash
Collateral Account pursuant to Section 2.5(b)(i), calculations of the Maximum
Total Debt Ratio and the Maximum Senior Debt Ratio with respect to such period
shall subtract from Total Debt and Senior Debt any such amounts (it being
understood that no such subtraction shall be made following any reinvestment
thereof as contemplated by Section 2.5(b)).
(c) Equity or Debt Offering. (i) Upon any Equity Offering made during
any period in which the Maximum Total Debt Ratio (measured as at the most
recently ended fiscal quarter of the Borrower) is greater than or equal to
5.75:1, the Borrower shall prepay the Loans (and such prepayment shall be
applied as set forth in Section 2.5(f)) in an aggregate amount such that the
Maximum Total Debt Ratio (as so measured) immediately after the application of
such prepayment is less than 5.75:1.
(ii) Upon any Debt Offering (other than those permitted under Section
6.2 hereof), and to which the Majority Lenders shall have consented, the
Borrower shall prepay the Loans (and such prepayment shall be applied as set
forth in Section 2.5(f)) in an aggregate amount equal to 100% of the Net
Proceeds thereof.
(d) Casualty Events. Upon the date 120 days following the receipt by
the Borrower or any of its Subsidiaries of the proceeds of insurance,
condemnation award or other compensation in respect of any Casualty Event
affecting any Property of the Borrower or any of its Subsidiaries (or upon such
earlier date as the Borrower or any such Subsidiary, as the case may be, shall
have determined not to repair or replace the Property affected by such Casualty
Event), the Borrower shall prepay the Loans (and such prepayment shall be
applied as set forth in section 2.5(f)) in an aggregate amount equal to 100% of
the Net Proceeds of such Casualty Event not theretofore applied (or committed to
be applied pursuant to executed construction contracts or equipment orders) to
the repair or replacement of such Property.
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(e) Acquisition Agreements. Promptly following the receipt by the
Borrower or any of its Subsidiaries of the proceeds of any adjustment of the
purchase price, or an indemnity payment, under any acquisition agreement
(including the Acquisition Agreement) pursuant to which the Borrower or any
Subsidiary has made any acquisition, the Borrower will prepay the Revolving
Loans (to the extent of the outstanding balance thereof), provided that no such
prepayment shall be required to the extent the aggregate amount of such
adjustments pursuant to any acquisition agreement is less than $500,000.
(f) Application. (i) Each prepayment of the Loans pursuant to this
Section 2.5 shall be applied to the outstanding amounts of Term Loans and
Revolving Loans on a pro rata basis determined on the basis of the amount of
Term Loans, on the one hand, and Revolving Loans, on the other hand, outstanding
at the time of such prepayment. Each prepayment shall be accompanied by payment
in full of all accrued interest and accrued commitment fees thereon to and
including the date of such prepayment, together with any additional amounts
owing pursuant to Section 2.15. Each prepayment shall be accompanied by payment
in full of all accrued interest and accrued commitment fees thereon to and
including the date of such prepayment, together with any additional amounts
owing pursuant to Section 2.15.
(ii) Each prepayment of the Revolving Loans and each Cash Collateral
Deposit under this Section 2.5 shall be applied to permanently reduce the
Aggregate Revolving Loan Commitment pro rata with respect to each of the
scheduled reduction dates set forth in Section 2.1(e) remaining at such time.
If, at any time, the Revolving Loans are repaid in full, additional prepayments
hereunder shall be applied first, to make a Cash Collateral Deposit and
thereafter, to permanently reduce the Aggregate Revolving Loan Commitment by an
amount equal to what such prepayment would have been under this Section 2.5 if
Revolving Loans had been outstanding against which to apply such prepayment.
(iii) Each prepayment of the Term Loans shall be applied to scheduled
installments of principal of the Term Loans in inverse order of maturity. Such
prepaid Term Loans may not be reborrowed.
2.6 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert LIBOR Loans to Base Rate Loans, by the Borrower
giving the Agent at least two Business Days' prior irrevocable written notice of
such election pursuant to a Continuation Notice. The Borrower may elect from
time to time to convert Base Rate Loans to LIBOR Loans by the Borrower giving
the Agent at least three Eurodollar Business Days' prior irrevocable written
notice of such election pursuant to a Continuation Notice. Any such notice of
conversion to LIBOR
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Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Agent shall promptly
notify each Lender thereof. All or any part of outstanding LIBOR Loans and Base
Rate Loans may be converted as provided herein, provided that (i) any such
conversion may only be made if, after giving effect thereto, Section 2.7 shall
not have been contravened, (ii) no Term Loan may be converted into a LIBOR Loan
after the date that is one month prior to the due date of the final installment
of principal of the Term Loans, (iii) no Revolving Loan may be converted into a
LIBOR Loan after the date that is one month prior to the Revolving Loan
Commitment Expiration Date and (iv) the Borrower shall not have the right to
elect to continue at the end of the applicable Interest Period, or to convert
to, a LIBOR Loan if a Default shall have occurred and be continuing.
(b) Any LIBOR Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the Borrower giving notice
to the Agent, in accordance with the applicable provisions of the term "Interest
Period" set forth in Section 1.1, of the length of the next Interest Period to
be applicable to such LIBOR Loan, provided that no LIBOR Loan may be continued
as such (i) if, after giving effect thereto, Section 2.7 would be contravened,
(ii) after the date that is one month prior to the due date of the final
installment of principal of the Term Loans, (iii) after the date that is one
month prior to the Revolving Loan Commitment Expiration Date or (iv) if a
Default shall have occurred and be continuing and provided, further, that if the
Borrower shall fail to give any required notice as described above in this
Section or if such continuation is not permitted pursuant to the preceding
proviso, such Loans shall be automatically converted to Base Rate Loans on the
last day of such then-expiring Interest Period.
2.7 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Tranche (except Loans made pursuant to Section 2.3(c)) shall be
equal to $1,000,000 or a whole multiple of $100,000 in excess thereof and, in
any case, there shall not be more than 8 Tranches.
2.8 Interest Rates and Payment Dates. (a) Each LIBOR Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the LIBOR Adjusted Rate plus (i) for LIBOR Loans which are
Revolving Loans, the Applicable Revolving Loan Margin and (ii) for LIBOR Loans
which are Term Loans, the Applicable Term Loan Margin.
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(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Base Rate plus (i) for Base Rate Loans which are Revolving Loans, the
Applicable Revolving Loan Margin and (ii) for Base Rate Loans which are Term
Loans, the Applicable
Term Loan Margin.
(c) If any Event of Default shall have occurred and be continuing, all
amounts outstanding shall bear interest at a rate per annum which is the rate
described in paragraph (b) of this Section plus 2% from the date of the
occurrence of such Default until such Default is no longer continuing (after as
well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section shall
be payable on demand.
(e) For purposes of determining the Applicable Margin for all Loans,
the letter of credit fees referred to in Section 2.3(e) and the commitment fee
referred to in Section 2.16, interest rates on the Loans and such fees shall be
calculated on the basis of the Maximum Total Debt Ratio set forth in the most
recent Covenant Compliance Certificate received by the Agent in accordance with
Section 5.2(a) (which Certificate shall be accompanied by the relevant financial
statements for such period). For accrued and unpaid interest and fees only (no
changes being made for interest or fee payments previously made), changes in
interest rates on the Loans, or in such fees, attributable to changes in the
Applicable Margin caused by changes in the Maximum Total Debt Ratio set forth in
the applicable Covenant Compliance Certificate shall be calculated upon the
delivery of a Covenant Compliance Certificate (accompanied by such financial
statements) and such change shall be effective from (and including) the day
which is two Business Days after receipt by the Agent of such Covenant
Compliance Certificate and financial statements. If, for any reason, the
Borrower shall fail to deliver a Covenant Compliance Certificate and such
financial statements when due in accordance with Section 5.1(a) and 5.2(a), and
such failure shall continue for a period of ten days, the Leverage Level shall
be deemed to be Revolving Loan Leverage Level 1 or Term Loan Leverage Level 1,
as applicable, retroactive to the date on which the Borrower should have
delivered such Covenant Compliance Certificate and such financial statements and
shall continue until a Covenant Compliance Certificate and financial statements
indicating a different Leverage Level is delivered to the Agent. Notwithstanding
the foregoing, there shall be no reductions in the Applicable Margin during any
period in which an Event of Default has occurred and is continuing.
2.9 Computation of Interest and Fees. (a) Interest on
Base Rate Loans (other than Base Rate Loans based on the Federal
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Funds Effective Rate) shall be calculated on the basis of a 365- (or 366-, as
the case may be), day year for the actual days elapsed and interest on LIBOR
Loans, unused commitment fees and all other Obligations of the Borrower shall be
calculated on the basis of a 360-day year for the actual days elapsed. The Agent
shall as soon as practicable notify the Borrower and the Lenders of each
determination of a LIBOR Adjusted Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the LIBOR Reserve Requirements
shall become effective as of the opening of business on the day on which such
change in the Base Rate is announced or such change in the LIBOR Reserve
Requirements becomes effective, as the case may be. The Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) If any Reference Lender's Commitment shall terminate or all of its
Loans shall be assigned for any reason whatsoever, such Reference Lender shall
thereupon cease to be a Reference Lender, and if, as a result of the foregoing,
there would only be one Reference Lender remaining, the Agent (after
consultation with the Borrower and the Co-Arrangers) shall, by notice to the
Borrower and the Lenders, designate another Lender reasonably acceptable to the
Borrower as a Reference Lender so that there shall at all times be at least two
Reference Lenders (provided that, notwithstanding the foregoing, (i) Union Bank
of California, N.A., shall be one of the Reference Lenders hereunder for so long
as it shall serve as Administrate Agent hereunder and (ii) Union Bank of
California, N.A., shall be the sole Reference Lender from the Closing Date until
one or more additional Reference Lenders shall be designated hereunder).
(c) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any of the Reference
Lenders shall be unable or shall otherwise fail to supply such rates to the
Agent upon its request, the rate of interest shall be determined on the basis of
the quotations of the remaining Reference Lenders or Reference Lender.
(d) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error.
2.10 Inability to Determine Interest Rate. In the event that prior to
the first day of any Interest Period:
(a) the Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower absent manifest error) that, by reason
of circumstances affecting the relevant
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market, adequate and reasonable means do not exist for ascertaining the LIBOR
Adjusted Rate for such Interest Period, or
(b) the Agent shall have received notice from the Majority Lenders
acting in good faith that the LIBOR Adjusted Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period, the Agent shall give telecopy
or telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter. If such notice is given (x) any LIBOR Loans requested to
be made on the first day of such Interest Period shall accrue interest at the
Base Rate, (y) Loans that were to have been converted on the first day of such
Interest Period to LIBOR Loans shall be continued as Base Rate Loans and (z) any
outstanding LIBOR Loans shall be converted, on the first day of such Interest
Period, to Base Rate Loans. Until such notice has been withdrawn by the Agent,
no further LIBOR Loans shall be made or continued as such, nor shall the
Borrower have the right to convert Base Rate Loans to LIBOR Loans.
2.11 Pro Rata Treatment and Payments. Each payment (including each
prepayment) by the Borrower on account of principal of and interest on the Loans
shall be made pro rata according to the respective outstanding principal and
interest amounts of such Loans then held by the Lenders. All payments (including
prepayments) to be made by the Borrower hereunder and under the Notes, whether
on account of principal, interest, fees or otherwise, shall be made without set
off or counterclaim and shall be made prior to 12:00 Noon, Los Angeles time, on
the due date thereof to the Agent, for the account of the applicable Lenders, at
the Agent's office specified in Section 9.2, in Dollars and in immediately
available funds. The Agent shall distribute such payments to the applicable
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the LIBOR Loans) becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a LIBOR Loan becomes due and payable on a day other than a
Eurodollar Business Day, the maturity thereof shall be extended to the next
succeeding Eurodollar Business Day (and interest shall continue to accrue
thereon at the applicable rate) unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Eurodollar Business Day.
2.12 Illegality. Notwithstanding any other provision herein, if any
change after the Closing Date in any Requirement
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of Law or in the interpretation or application thereof shall make it unlawful
for any Lender or Applicable Lending Office to make or maintain LIBOR Loans as
contemplated by this Agreement, (a) the commitment of such Lender hereunder to
make LIBOR Loans, continue LIBOR Loans as such and convert Base Rate Loans to
LIBOR Loans shall forthwith be suspended during such period of illegality and
(b) the Loans of such Lender or Applicable Lending Office then outstanding as
LIBOR Loans, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a LIBOR Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrower shall pay to such Lender such
amounts, if any, as may be required pursuant to Section 2.15. To the extent that
a Lender's LIBOR Loans have been converted to Base Rate Loans pursuant to this
Section 2.12, all payments and prepayments of principal that otherwise would be
applied to such Lender's LIBOR Loans shall be applied instead to its Base Rate
Loans.
2.13 Increased Costs. (a) In the event that any change after the
Closing Date in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law but, if not having the force of law, generally
applicable to and complied with by banks and financial institutions of the same
general type as such Lender in the relevant jurisdiction) from any central bank
or other Governmental Authority made subsequent to the date hereof:
(i) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirements against assets
held by, letters of credit or guarantees issued by, deposits or other
liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any
office of such Lender or Applicable Lending Office which is not
otherwise included in the determination of the LIBOR Adjusted Rate
hereunder; or
(ii) shall impose on such Lender or Applicable Lending Office any
other condition;
and the result of any of the foregoing is to increase the cost to the Agent of
issuing or maintaining any Letter of Credit by an amount which the Agent deems
to be material, or to such Lender or Applicable Lending Office, by an amount
which such Lender deems to be material, of making, converting into, continuing
or maintaining LIBOR Loans, or purchasing or maintaining any participation in a
Letter of Credit, or to reduce any amount receivable hereunder in respect
thereof then, in any such case, the Borrower shall immediately pay to the Agent,
for its own
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account or on behalf of such Lender or Applicable Lending Office, as applicable,
upon the demand of the Agent for itself or at the request of such Lender, as
applicable, any additional amounts necessary to compensate such Lender or the
Agent, as applicable, for such increased cost or reduced amount receivable. If
the Agent, any Lender or any Applicable Lending Office becomes entitled to claim
any additional amounts pursuant to this Section, it shall promptly notify the
Borrower, through the Agent, of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
Section submitted by the Agent or such Lender or Applicable Lending Office,
through the Agent, to the Borrower shall be conclusive evidence of the accuracy
of the information so recorded, absent manifest error. This covenant shall
survive the termination of this Agreement, expiration of the Letters of Credit
and the payment of the Notes and all other amounts payable hereunder.
(b) If, after the date of this Agreement, the introduction of or any
change in any applicable law, rule, regulation or guideline regarding capital
adequacy, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or the National Association of Insurance
Commissioners or comparable agency charged with the interpretation or
administration thereof, affects the amount of capital required or expected to be
maintained by any Lender or any corporation controlling any Lender, and such
Lender (taking into consideration such Lender's or such corporation's policies
with respect to capital adequacy) determines that the amount of capital
maintained by such Lender or such corporation which is attributable to or based
upon the Loans, the Letters of Credit, the Commitments or this Agreement must be
increased as a consequence of such introduction or change by an amount deemed by
such Lender to be material, then, upon demand of the Agent at the request of
such Lender, the Borrower shall immediately pay to the Agent on behalf of such
Lender, additional amounts sufficient to compensate such Lender or such
corporation for the increased costs to such Lender or corporation of such
increased capital. Any such demand shall be accompanied by a certificate of such
Lender setting forth in reasonable detail the computation of any such increased
costs, which certificate shall be conclusive, absent manifest error. This
covenant shall survive the termination of this Agreement, expiration of the
Letters of Credit and the payment of the Notes and all other amounts payable
hereunder.
2.14 U.S. Taxes. (a) The Borrower agrees to pay to each Lender that is
not a U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S.
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Person), will not be less than the amount stated herein to be then due and
payable, provided that the foregoing obligation to pay such additional amounts
shall not apply:
(i) to any payment to any Lender hereunder (other than in respect of
any Registered Loan) unless such Lender is, on the date hereof (or on the date
it becomes a Lender hereunder as provided in Section 9.6(c) hereof) and on the
date of any change in the Applicable Lending Office of such Lender, either
entitled to submit a Form 1001 (relating to such Lender and entitling it to a
complete exemption from withholding on all interest to be received by it
hereunder in respect of the Loans) or Form 4224 (relating to all interest to be
received by such Lender hereunder in respect of the Loans),
(ii) to any payment to any Lender hereunder in respect of a Registered
Loan (a "Registered Holder"), unless such Registered Holder (or, if such
Registered Holder is not the beneficial owner of such Registered Loan, the
beneficial owner thereof) is, on the date hereof (or on the date such Registered
Holder becomes a Lender as provided in Section 9.6(c) hereof) and on the date of
any change in the Applicable Lending Office of such Lender entitled to submit a
Form W-8, together with an annual certificate (a "Tax Compliance Certificate")
stating that (x) such registered Holder (or beneficial owner, as the case may
be) is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, and
(y) such Registered Holder (or beneficial owner, as the case may be) shall
promptly notify the Borrower if at any time, such Registered Holder (or
beneficial owner, as the case may be) determines that it is no longer in a
position to provide such certificate to the Borrower (or any other form of
certification adopted by the relevant taxing authorities of the United States of
America for such purposes), or
(iii)to any U.S. Taxes imposed solely by reason of the failure by such
non-U.S. Person (or, if such non-U.S. Person is not the beneficial owner of the
relevant Loan, such beneficial owner) to comply with the applicable
certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections with the United
States of America of such non-U.S. Person (or beneficial owner, as the case may
be) if such compliance is required by statute or regulation of the United States
of America as a precondition to relief or exemption from such U.S. Taxes.
For the purposes of this Section 2.14(a), (A) "U.S. Person" shall mean
a citizen, national or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under any laws of the
United States of America or any State thereof, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income, (B)
"U.S. Taxes" shall mean any present or future tax, assessment
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or other charge or levy imposed by or on behalf of the United States of America
or any taxing authority thereof or therein, (C) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (D) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a claim
to which such Form relates) and (E) "Form W-8" shall mean Form W-8 (Certificate
of Foreign Status of the Department of Treasury of the United States of
America). Each of the Forms referred to in the foregoing clauses (C), (D) and
(E) shall include such successor and related forms as may from time to time be
adopted by the relevant taxing authorities of the United States of America to
document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the Agent or any Lender
from which it is required by law to make any deduction or withholding, and
within 30 days after it is required by law to remit such deduction or
withholding to any relevant taxing or other authority, the Borrower shall
deliver to the Agent for delivery to such non-U.S. Person evidence satisfactory
to such Person of such deduction, withholding or payment (as the case may be).
2.15 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from and to pay each Lender within 5 Business Days of
such Lender's demand the amount of any liability, loss or expense arising from
the reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained (including reasonable fees and
expenses of counsel) which such Lender may sustain or incur as a consequence of
(a) default by the Borrower in payment when due of the principal amount of or
interest on any LIBOR Loan, (b) default by the Borrower in making a borrowing
of, conversion into or continuation of LIBOR Loans after the Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (c) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (d) the making by the Borrower of a prepayment or conversion of
LIBOR Loans on a day which is not the last day of an Interest Period with
respect thereto. A Lender's certificate as to such liability, loss or expense
shall be deemed conclusive, absent manifest error. This covenant shall survive
the termination of this Agreement, expiration of the Letters of Credit and the
payment of the Notes and all other amounts payable hereunder.
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2.16 Unused Commitment Fees. The Borrower agrees to pay to the Agent
for the account of the Revolving Loan Lenders an unused commitment fee to be
shared pro rata among the Revolving Loan Lenders with respect to the Revolving
Loan Commitments for the period from and including the Closing Date to but
excluding the Revolving Loan Commitment Expiration Date, based on the average
daily aggregate amount of the unused Aggregate Revolving Loan Commitment from
time to time in effect and computed at the rate of (i) during any period in
which the Maximum Total Debt Ratio is less than 5.50:1, 0.375% per annum and
(ii) at all other times, 0.500% per annum. Such fee shall be payable quarterly
in arrears on the last day of each March, June, September and December and on
the Revolving Loan Commitment Expiration Date, commencing on the first such date
to occur after the Closing Date.
2.17 Mitigation of Costs. If any Lender, by changing its Applicable
Lending Office or taking any other reasonable action, so long as making such
change or taking such other action is not disadvantageous to it in any
financial, regulatory or other respect, can mitigate any adverse effect on the
Borrower under Section 2.10, 2.12, 2.13, or 2.14, such Lender shall take such
action.
2.18 Registered Loans. Notwithstanding the foregoing, any Lender that
is not a U.S. Person and is not a "bank" within the meaning of Section
881(c)(3)(a) of the Code may request the Borrower (through the Agent), and the
Borrower agrees to cause the Agent thereupon, to record on the Tax Register
referred to in Section 9.6(f) hereof any Loans held by such Lender under this
Agreement. The Borrower hereby designates the Agent to serve as the Borrower's
agent solely for purposes of maintaining the Tax Register. Loans recorded on the
Register ("Registered Loans") may not be evidenced by promissory notes other
than Registered Notes as defined below and, upon the registration of any Loan,
any promissory note (other than a Registered Note) evidencing the same shall be
null and void and shall be returned to the respective Borrower. The Borrower
agrees, at the request of any Lender that is the holder of Registered Loans, to
execute and deliver to such Lender a promissory note in registered form to
evidence such Registered Loans (i.e. containing the optional registered note
language as indicated in Exhibit A-1 or A-2 hereto, as the case may be) and
registered as provided in Section 9.6(f) hereof (herein, a "Registered Note"),
dated the date hereof, payable to such Lender and otherwise duly completed. A
loan once recorded on such Register may not be removed from the Register so long
as it remains outstanding and a Registered Note may not be exchanged for a
promissory note that is not a Registered Note.
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SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Loans and participate in the Letters of Credit, and to induce the Agent to issue
the Letters of Credit, the Borrower hereby represents and warrants to the Agent
and each Lender that:
3.1 Organization and Good Standing. The Borrower and each Subsidiary
(a) is duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization as indicated on Schedule 3.7, (b) has all
requisite power and authority (corporate, partnership, limited liability company
and otherwise) to own its properties and to conduct its business as now
conducted and as currently proposed to be conducted and (c) is duly qualified to
conduct business as a foreign organization and is currently in good standing in
each state and jurisdiction in which it conducts business. Each state and
jurisdiction in which the Borrower or any Subsidiary is or should be qualified
to conduct business is listed on Schedule 3.1 hereto.
3.2 Power and Authority. The Borrower and each Subsidiary has all
requisite power and authority under applicable law and under its Organic
Documents to (i) in the case of the Borrower, borrow hereunder, (ii) in case of
Black Creek, to consummate the Cable One Acquisition in accordance with the
terms of the Acquisition Agreement and (iii) to execute, deliver and perform its
respective obligations under the Loan Documents to which it is a party. All
actions, waivers and consents (corporate, regulatory and otherwise) necessary or
appropriate for Black Creek to consummate the Cable One Acquisition in
accordance with the terms of the Acquisition Agreement, and for the Borrower and
each Subsidiary to execute, deliver and perform the Loan Documents to which it
is a party have been taken and/or received.
3.3 Validity and Legal Effect. This Agreement constitutes, and the
other Loan Documents to which the Borrower or any Subsidiary is a party
constitute (or will constitute when executed and delivered), the legal, valid
and binding obligations of the Borrower or such Subsidiary, as applicable,
enforceable against it in accordance with the terms thereof, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors' rights and (b) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
3.4 No Violation of Laws or Agreements. The execution, delivery and
performance of the Loan Documents and the consummation of the Cable One
Acquisition in accordance with the terms of the Acquisition Agreement (a) will
not violate or contravene any Requirement of Law, (b) will not result in any
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material breach or violation of, or constitute a material default under, any
agreement or instrument by which the Borrower or any Subsidiary, or any of its
property, may be bound, and (c) will not result in or require the creation of
any Lien (other than those permitted by Section 6.3) upon or with respect to any
property of the Borrower or any Subsidiary, whether such property is now owned
or hereafter acquired.
3.5 Title to Assets; Existing Encumbrances; Legal Names. The Borrower
and each Subsidiary has good and marketable title to all of its real and
personal properties and assets, free and clear of any Liens (other than those
permitted by Section 6.3). Neither the Borrower nor any Subsidiary has used (or
permitted the filing of any financing statement under) any legal or operating
name at any time during the twelve consecutive calendar months immediately
preceding the execution of this Agreement, except as identified on Schedule 3.5
hereto.
3.6 Capital Structure; Equity Ownership; Subordinated Debt. The
authorized capital stock of the Borrower consists of an aggregate of 1,000
shares of common stock, par value $0.01 per share, all of which shares are duly
and validly issued and outstanding, and each of which shares is fully paid and
nonassessable. All of such issued and outstanding shares of common stock are
owned beneficially and of record by CCI. There are no outstanding Equity Rights
with respect to the Borrower or any Subsidiary and there are no outstanding
obligations of the Borrower or any of its Subsidiaries to repurchase, redeem, or
otherwise acquire any shares of capital stock of the Borrower, nor are there any
outstanding obligations of the Borrower or any of its Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
Borrower or any of its Subsidiaries. The Borrower has the corporate power and
authority to issue the Subordinated Notes. The Subordinated Notes, when issued
and paid for, will be the legally valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability. The subordination provisions of the Subordinated
Notes will be enforceable against the holders thereof and the Loans and all
other monetary Obligations hereunder are and will be within the definition of
"Senior Indebtedness" included in such provisions. The Subordinated Notes, when
issued and sold, will either (a) have been registered or qualified under
applicable federal and state securities laws or (b) be exempt therefrom.
3.7 Subsidiaries and Affiliates. Schedule 3.7 hereto accurately and
completely discloses (i) each Subsidiary and
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Affiliate of the Borrower (other than its officers and directors), (ii) each
Person holding ownership interests in such Subsidiary and (iii) the nature of
the ownership interests held by each such Person and the percentage of ownership
of such Subsidiary represented by such ownership interests.
3.8 Material Contracts. Schedule 3.8 hereto accurately and completely
discloses each contract and agreement (including but not limited to site leases
and licenses and programming contracts, but excluding Franchises) material to
the financial condition or operation of the Borrower or any Subsidiary (each, a
"Material Contract," and collectively, the "Material Contracts"). Neither the
Borrower nor any Subsidiary has committed any unwaived breach or default under
any Material Contract, and the Borrower has no knowledge or reason to believe
that any other party to any Material Contract has committed any unwaived breach
or default thereof. Each of the Material Contracts is a legal, valid and binding
obligation of the Borrower or the Subsidiaries party thereto, enforceable in
accordance with its terms. Each of the Lenders and the Agent has received a
complete and correct copy of each Material Contract (including in each case all
exhibits, schedules and disclosure letters referred to therein or delivered
pursuant thereto, if any) and all amendments thereto and other side letters or
agreements affecting the terms thereof. Except for the Acquisition Agreement,
neither the Borrower nor any of its Subsidiaries is party to any agreements or
letters of intent providing for the acquisition or disposition of any assets
(including without limitation any CATV Systems or Telephone Systems) with a fair
market value of $100,000 or more.
3.9 Taxes and Assessments. (a) The Borrower and each Subsidiary has
timely filed all required tax returns and reports (federal, state and local) or
has properly filed for extensions of the time for the filing thereof. The
Borrower has no knowledge of any deficiency, penalty or additional assessment
due or appropriate in connection with any such taxes. All taxes (federal, state
and local) imposed upon the Borrower or any Subsidiary or any of its properties,
operations or income have been paid and discharged prior to the date when any
interest or penalty would accrue for the nonpayment thereof, except for those
taxes being contested in good faith by appropriate proceedings diligently
prosecuted and with adequate reserves reflected on the financial statements in
accordance with GAAP. There are no taxes imposed on the Borrower or its
Subsidiaries by any political subdivision or taxing authority due or payable
either on or by virtue of the execution and delivery by the Borrower, the
Subsidiaries, the Agent, or the Lenders of this Agreement or any other Loan
Document to which the Borrower or the Subsidiaries are party, or on any payment
to be made by the Borrower pursuant hereto or thereto.
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(b) The Borrower has net operating losses (within the meaning of
Section 172 of the Code) in an amount not less than that set forth in Schedule
3.9.
3.10 Litigation and Legal Proceedings. Except as disclosed on Schedule
3.10 hereto, there is no litigation, claim, investigation, administrative
proceeding, labor controversy or similar action that is pending or, to the
knowledge of the Borrower, threatened (i) with respect to any Loan Document or
the transactions contemplated thereby, (ii) with respect to the Cable One
Acquisition or the transactions contemplated by the Acquisition Agreement or
(iii) against the Borrower, any Subsidiary or any Property that (in the case of
this clause (iii)), if adversely resolved, could (either individually or in the
aggregate) have a Material Adverse Effect.
3.11 Accuracy of Financial Information. (a) All information previously
furnished to the Agent and the Lenders that was prepared by or on behalf of the
Borrower concerning the financial condition and operations of the Borrower or
any Subsidiary, including (i) the audited consolidated financial statements of
CCI and its Subsidiaries for the fiscal year ended December 31, 1997 (including,
separately stated, consolidating statements of income, retained earnings and
cash flows of CCI and its Subsidiaries), (ii) the unaudited consolidated
financial statements for CCI and its Subsidiaries for the fiscal quarter ended
March 31, 1998 and (iii) the unaudited pro forma condensed consolidated balance
sheet for CCI and it Subsidiaries, as at March 31, 1998 and unaudited pro forma
condensed consolidated statements of operations for the fiscal year ended on
December 31, 1997 and the 3-month period ended on March 31, 1998, in each case
prepared under the assumption that the Cable One Acquisition occurred on March
31, 1998, (A) have been prepared in accordance with GAAP consistently applied,
(B) are true, accurate and complete in all material respects, (C) fairly present
the financial condition of the organizations covered thereby as of the dates and
for the periods covered thereby and (D) disclose all material liabilities
(contingent and otherwise) of the Borrower and the Subsidiaries.
(b) Since December 31, 1997 there has been no event or condition
resulting in a Material Adverse Effect.
3.12 Accuracy of Other Information. All information contained in the
Confidential Information Memorandum relating to the Loans, and any application,
schedule, report, certificate, or any other document given to the Agent or any
Lender by the Borrower or any other Person in connection with the Loan Documents
is in all material respects true, accurate and complete, and no such Person has
omitted to state therein (or failed to include in any such document) any
material fact or any fact necessary to make such information not misleading.
All
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projections given to the Agent, the Co-Arrangers, or any Lender by the Borrower
or any other Person have been prepared with a reasonable basis and in good faith
making use of such information as was available at the date such projection was
made. The projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by the
Borrower to be reasonable at the time made and as of the Closing Date, it being
recognized that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ from the projected results.
3.13 Compliance with Laws Generally. The Borrower and each Subsidiary
is in compliance in all material respects with all Requirements of Law
applicable to it, its operations and its properties.
3.14 ERISA Compliance.
(a) The Borrower and each Subsidiary is in compliance in all
material respects with all applicable provisions of ERISA, and all rules,
regulations and orders implementing ERISA.
(b) Neither the Borrower nor any Subsidiary, or any ERISA
Affiliate thereof, maintains or contributes to (or has maintained or contributed
to) any Multiemployer Plan under which the Borrower, any Subsidiary or any ERISA
Affiliate thereof could have any withdrawal liability.
(c) Neither the Borrower nor any Subsidiary, or any ERISA
Affiliate thereof, sponsors or maintains any defined benefit pension plan under
which there is an accumulated funding deficiency within the meaning of Section
412 of the Code, whether or not waived.
(d) The liability for accrued benefits under each defined
benefit pension plan that will be sponsored or maintained by the Borrower, any
Subsidiary or any ERISA Affiliate thereof (determined on the basis of the
actuarial assumptions utilized by the PBGC) does not exceed the aggregate fair
market value of the assets under each such defined benefit pension plan.
(e) The aggregate liability of the Borrower, each Subsidiary
and each ERISA Affiliate thereof arising out of or relating to a failure of any
employee benefit plan within the meaning of Section 3(2) of ERISA to comply with
provisions of ERISA or the Code will not have a Material Adverse Effect.
(f) There does not exist any unfunded liability (determined on
the basis of actuarial assumptions utilized by the actuary for the plan in
preparing the most recent annual report) of the Borrower, any Subsidiary or any
ERISA Affiliate thereof
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under any plan, program or arrangement providing post-retirement, life or health
benefits.
(g) No Reportable Event and no Prohibited Transaction (as
defined in ERISA) has occurred or is occurring with respect to any plan with
which the Borrower or any Subsidiary is associated.
3.15 Environmental Compliance.
(a) The Borrower and each Subsidiary has received all permits
and filed all notifications necessary under and is otherwise in compliance in
all material respects with all federal, state and local laws, rules and
regulations governing the control, removal, storage, transportation, spill,
release or discharge of Hazardous Materials, including, without limitation, as
provided in the provisions of and the regulations under (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendment and Reauthorization Act of 1986, (ii) the Solid Waste
Disposal Act, (iii) the Clean Water Act and the Clean Air Act, (iv) the
Hazardous Materials Transportation Act, (v) the Resource Conservation and
Recovery Act of 1976 and (vi) the Federal Water Pollution Control Act Amendments
of 1972 (all of the foregoing enumerated and nonenumerated statutes, including
without limitation any applicable state or local statutes, all as amended,
collectively, the "Environmental Control Statutes").
(b) Neither the Borrower nor any Subsidiary has given any
written or oral notice to the Environmental Protection Agency ("EPA") or any
state or local agency with regard to any actual or imminently threatened
removal, storage, transportation, spill, release or discharge of Hazardous
Wastes either (i) on properties owned or leased by the Borrower or such
Subsidiary or (ii) otherwise in connection with the conduct of its business and
operations.
(c) Neither the Borrower nor any Subsidiary has received
notice that it is potentially responsible for costs of clean-up of any actual or
imminently threatened spill, release or discharge of Hazardous Wastes pursuant
to any Environmental Control Statute.
(d) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Control Statute to which the Borrower or any of its Subsidiaries
is named as a party with respect to the Properties or the business conducted at
the Properties, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any
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Environmental Control Statute with respect to the Properties or such business.
3.16 Federal Regulations. No Letter of Credit and no part of the
proceeds of any Loans are intended to be or will be used, directly or indirectly
for any purpose which violates the provisions of the Regulations of the Board of
Governors of the Federal Reserve System. If requested by any Lender or the
Agent, and in any event upon consummation of any acquisition involving the
purchase of stock by the Borrower or any Subsidiary, the Borrower will furnish
to the Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of Form U-1 referred to in Regulation U.
3.17 Fees and Commissions. Except as disclosed on Schedule 3.17 hereto
or as required by Section 2.16 hereof or the letter referred to in Section
4.1(d), neither the Borrower nor any Subsidiary owes or will owe any fees or
commissions of any kind in connection with the Cable One Acquisition, this
Agreement or the transactions contemplated hereby or thereby, and the Borrower
does not know of any claim (or any basis for any claim) for any fees or
commissions in connection with the Cable One Acquisition, the Acquisition
Agreement, this Agreement or the transactions contemplated hereby or thereby.
3.18 Representations and Warranties in Acquisition Agreement. The Agent
has received a complete and correct copy of the Acquisition Agreement (including
all exhibits, schedules and disclosure letters referred to therein or delivered
or to be delivered pursuant thereto, if any) and all amendments thereto, waivers
relating thereto and other side letters or agreements affecting the terms
thereof. The Acquisition Agreement has been duly executed and delivered by the
parties thereto and is in full force and effect with no default thereunder. Each
representation and warranty in the Acquisition Agreement shall be deemed to be
made by the Borrower for the Lenders' benefit as if set forth herein at length.
3.19 Solvency. Immediately prior to and upon the execution of this
Agreement, the consummation of the Cable One Acquisition, the funding of the
Loans and the issuance of any Letters of Credit to be funded or issued on the
Closing Date, and the issuance of the Subordinated Notes, the Borrower and each
Guarantor was, is and will be Solvent.
3.20 Franchises. Set forth in Schedule 3.20 hereto is a complete and
correct list of all Franchises (identified by issuing authority, franchisee and
expiration date) owned by the Borrower and its Subsidiaries on the Closing Date,
or that will be owned by the Borrower and its Subsidiaries (after giving effect
to the Cable One Acquisition). The Borrower and each Subsidiary possesses or has
the right to use, or will possess or
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have the right to use (after giving effect to the Cable One Acquisition), all
such Franchises, and all copyrights, licenses, trademarks, service marks, trade
names or other rights, including licenses and permits granted by the FCC,
agreements with public utilities and microwave transmission companies, pole or
conduit attachment, use, access or rental agreements and utility easements that
are necessary for the conduct of the CATV Systems or Telephone Systems of the
Borrower and its Subsidiaries, except for such of the foregoing the absence of
which could not have a Material Adverse Effect on the Borrower or any of its
Subsidiaries, and each of such Franchises, copyrights, licenses, patents,
trademarks, service marks, trade names and rights is (or on the date of the
Cable One Acquisition will be) in full force and effect and no material default
has occurred and is continuing thereunder. No approval, application, filing,
registration, consent or other action of any local, state or federal authority
is required to enable the Borrower or any of its Subsidiaries to take advantage
of the rights and privileges intended to be conferred by any Franchise, except
for approvals, applications, filings, registrations, consents or other actions
that (if not made or obtained) could not have a Material Adverse Effect on the
Borrower or any of its Subsidiaries. Neither the Borrower nor any Subsidiary has
received any notice from the granting body or any governmental authority with
respect to any breach of any covenant under, or any default with respect to, any
Franchise.
3.21 The CATV Systems. (a) The Borrower and each Subsidiary, and the
CATV Systems owned by them (and, after giving effect to the Cable One
Acquisition, to be owned by them) are in compliance in all material respects
with all applicable federal, state and local laws, rules and regulations,
including without limitation, the Communications Act, the Cable Communications
Policy Act of 1984, the Cable Television Consumer Protection and Competition Act
of 1992, the Copyright Revision Act of 1976, and the rules and regulations of
the FCC and the United States Copyright Office, including, without limitation,
rules and laws governing system registration, use of aeronautical frequencies
and signal carriage, equal employment opportunity, cumulative leakage index
testing and reporting, signal leakage, and subscriber privacy. Without limiting
the generality of the foregoing:
(i) The communities included in the areas covered by the
Franchises covering CATV Systems have been registered with the FCC;
(ii) all of the annual performance tests on such CATV Systems
required under the rules and regulations of the FCC have been performed;
(iii)except as set forth in Schedule 3.21 hereto, such CATV
Systems currently meet or exceed the technical standards set
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forth in the rules and regulations of the FCC, including, without limitation,
the leakage limits contained in the 47 C.F.R. Section 76.605(a)(11);
(iv) except as set forth in Schedule 3.21 hereto, such CATV
Systems are being operated in compliance with the provisions of 47 C.F.R.
Section 76.610 through 76.619 (mid-band and super- band signal carriage),
including 47 C.F.R. Section 76.611 (compliance with the cumulative signal
leakage index);
(v) where required, appropriate authorizations from the FCC
have been obtained for the use of all aeronautical frequencies in use in such
CATV Systems and such CATV Systems are presently being operated in compliance
with such authorizations (and all required certificates, permits and clearances
from governmental agencies, including the Federal Aviation Administration, with
respect to all towers, earth stations, business radios and frequencies utilized
and carried by such CATV Systems have been obtained); and
(vi) all notices to subscribers of such CATV Systems required
by the rules and regulations of the FCC have been provided.
(b) All notices, statements of account, supplements and other documents
required under Section 111 of the Copyright Act of 1976 and under the rules of
the Copyright Office with respect to the carriage of off-air signals by the CATV
Systems owned by the Borrower and the Subsidiaries (and, after giving effect to
the Cable One Acquisition, to be owned by the Borrower and the Subsidiaries)
have been fully filed, and the proper amounts of copyright fees have been paid
on a timely basis, and each such CATV System qualifies for the compulsory
license under Section 111 of the Copyright Act of 1976.
(c) The carriage of all off-air signals by the CATV Systems owned by
the Borrower and the Subsidiaries (and, after giving effect to the Cable One
Acquisition, to be owned by the Borrower and the Subsidiaries) is permitted by
valid transmission consent agreements or by must-carry elections by
broadcasters.
(d) The Borrower and (to the best knowledge of the Borrower) Cable One
have complied in all material respects with their respective obligations with
regard to protecting the privacy rights of any past or present customers of the
CATV Systems owned by the Borrower and the Subsidiaries (and, after giving
effect to the Cable One Acquisition, to be owned by the Borrower and the
Subsidiaries).
3.22 Rate Regulation. The Borrower and (to the best of the knowledge of
the Borrower) Cable One have each reviewed and evaluated in detail the FCC rules
currently in effect (the "Rate
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Regulation Rules") implementing the rate regulation provisions of the Cable
Television Consumer Protection and Competition Act of 1992 (the "Rate Regulation
Act"). Based upon such review, completion by the Borrower and (to the best
knowledge of the Borrower) Cable One of all applicable worksheets contemplated
by the Rate Regulation Rules for each CATV System owned by the Borrower (or,
after giving effect to the Cable One Acquisition, to be owned by the Borrower):
(i) none of such CATV Systems are subject to effective
competition as of the date hereof other than as set forth on Schedule
3.22;
(ii) except as set forth in Schedule 3.22 hereto, no
franchising authority has notified the Borrower or any of its
Subsidiaries of its application to be certified to regulate rates as
provided in Section 76.910 of the Rate Regulation Rules;
(iii) except as set forth in Schedule 3.22 hereto, no
franchising authority has notified the Borrower or any of its
Subsidiaries that it has been certified and has adopted regulations
required to commence regulation as provided in Section 76.910(c)(2) of
the Rate Regulation Rules;
(iv) except to the extent that a franchising authority
regulates rates pursuant to the Rate Regulation Rules, such CATV
Systems may continue to charge their current rates in compliance with
the Rate Regulation Act and the Rate Regulation Rules;
(v) such CATV Systems are otherwise in material compliance
with the Rate Regulation Act and the Rate Regulation Rules applicable
to them; and
(vi) no reduction of rates or refunds to subscribers is
required thereunder as of the date hereof.
3.23 Investment Company Act; Public Utility Holding Company Act. (a)
Neither the Borrower nor any Subsidiary is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
(b) Neither the Borrower nor any Subsidiary is a "holding company," or
an "affiliate" of a "holding company" or a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
3.24 Nature of Business. Neither the Borrower nor any of its
Subsidiaries is engaged in any material business other than as described in
Section 6.13.
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3.25 Ranking of Loans. This Agreement and the other Loan Documents to
which the Borrower is party, when executed, and the Loans, when borrowed, are
and will be the direct and general obligations of the Borrower. The Borrower's
obligations hereunder and thereunder rank and will rank at least pari passu in
priority of payment to all other Senior Debt and senior to all Subordinated
Indebtedness.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Closing Date. The agreement of each Lender to make
the Loans requested to be made by it on the Closing Date and participate in any
Letters of Credit issued on the Closing Date and the agreement of the Agent to
issue any Letters of Credit requested to be issued on the Closing Date are
subject to the satisfaction, immediately prior to or concurrently with the
making of such Loans and/or the issuance of and participation in such Letters of
Credit on the Closing Date, of the following conditions precedent:
(a) Credit Agreement. The Agent shall have received this Agreement,
executed and delivered by an officer of the Borrower as of the Closing Date,
with a counterpart for each Lender, and such officer shall be covered by an
incumbency certificate which shall have been executed and delivered to the
Agent.
(b) Other Loan Documents. The Agent shall have received the Term Notes,
the Revolving Notes, the Guarantees, the Guarantor Collateral Documents, the
Collateral Documents, and all UCC-1 Financing Statements and other agreements or
instruments required to create or perfect a security interest in the Collateral
and the Guarantor Collateral executed in connection herewith, in each case
executed and delivered by an officer of the relevant Obligor with a counterpart
for each Lender.
(c) Corporate Documents. Certified copies of the charter and by-laws
(or equivalent documents) of each Obligor which is a legal entity and of all
corporate authority (or equivalent authority) for each such Obligor (including,
without limitation, board of director resolutions and evidence of the
incumbency, including specimen signatures, of officers) with respect to the
execution, delivery and performance of such of the Loan Documents to which such
Obligor is intended to be a party and each other document to be delivered by
such Obligor from time to time in connection herewith and the extensions of
credit hereunder (and the Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from such Obligor to the
contrary).
(d) Fees and Costs. The Agent shall have received payment of (i) the
fees set forth in the fee side letter executed by the
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Borrower and the Co-Arrangers in connection herewith and (ii) such other fees,
costs and expenses, including reasonable legal fees, as are requested by the
Co-Arrangers to be paid on the Closing Date by the Borrower in connection with
this Agreement.
(e) Legal Opinions. The Agent shall have received, with a counterpart
for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Xxxxxxxx Xxxxxxxx & Xxxxxx
P.C., counsel to the Borrower and the Guarantors, in form and substance
satisfactory to the Co-Arrangers;
(ii) the executed legal opinion of regulatory counsel to the
Borrower and the Guarantors, in form and substance satisfactory to the
Co-Arrangers;
(iii) executed legal opinions of local counsel to the Borrower
and the Guarantors in the States of Kansas, Missouri, Oklahoma and
Arkansas in form and substance satisfactory to the Co-Arrangers; and
(iv) such other legal opinions as the Co-Arrangers may
reasonably request.
(f) Material Contracts. The Agent shall have received copies of (i) the
Acquisition Agreement, each Material Contract and each Equityholder Agreement
and (ii) the Subordinated Indenture and the CCI Indenture and each agreement,
instrument and opinion delivered in connection therewith, all of the foregoing
in form and substance satisfactory to the Agent and all as certified as true and
correct by a Responsible Officer of the Borrower.
(g) Tax Sharing Agreement. The Tax Sharing Agreement duly executed and
delivered by CCI, the Borrower and each of its Subsidiaries, together with
evidence that the "Tax Sharing Agreement" under and as defined in the Existing
Credit Agreement, shall have been simultaneously terminated.
(h) Lien Searches. The Agent shall have received (i) certified copies
of requests for information from all relevant jurisdictions, listing all
effective financing statements which name the Borrower or any Guarantor (or any
predecessor thereto), as debtor, together with copies of such financing
statements, none of which, except for Liens permitted by Section 6.3, shall
cover any of the Collateral or the Guarantor Collateral and (ii) searches of the
United States Patent and Trademark Office and the United States Copyright
Office, in form and substance reasonably satisfactory to the Agent.
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(i) Stock Certificates; Etc. The Agent shall have received (i) original
stock certificates representing all outstanding shares of stock of the Borrower
and each corporate Subsidiary, and all other stock or certificated interests in
limited liability companies pledged to the Agent pursuant to the Collateral
Documents or the Guarantor Collateral Documents, together with an undated stock
power for each of such certificates, duly executed in blank by a Shareholder
Employee, or an authorized officer of the relevant corporate pledgor (as
applicable) and (ii) such notices, acknowledgments and filings as may be
requested by the Agent with respect to limited liability company interests and
partnership interests.
(j) Good Standing Certificates. With respect to each Obligor which is a
legal entity, the Agent shall have received a certificate, dated a recent date,
of the Secretary of State of the state of formation of such Obligor and each
other jurisdiction where such Obligor is required to be qualified to do business
under such jurisdiction's law, certifying as to the existence and good standing
of, and the payment of taxes by, each such Obligor in such state.
(k) Subordinated Debt; Equity Investment. The Agent shall have received
a certificate of a senior financial officer of the Borrower (with respect to
clause (i)) and of the Borrower and CCI (with respect to clause (ii)) indicating
that (i) the Subordinated Notes have been issued and net cash proceeds have been
received therefor in the amount of $120,975,000 and (ii) the Borrower has, on
terms satisfactory to the Co-Arrangers, received an equity investment in an
amount not less than $23,000,000 from CCI as a result of the sale of the CCI
Notes.
(l) Existing Indebtedness. The Co-Arrangers shall have received
evidence satisfactory to them of (i) full repayment of all existing Indebtedness
of the Borrower and WTAC under the Existing Credit Agreement and the termination
of all guarantees and collateral pledges thereunder and (ii) release of all
Liens on the assets of Cable One (except any permitted by Section 6.3), or in
each case evidence that arrangements for such release satisfactory to the
Co-Arrangers shall have been made.
(m) Officer's Certificate. A certificate of a senior officer of the
Borrower, dated the Closing Date, to the effect set forth in the first sentence
of Section 4.2 hereof.
(n) Solvency Analysis. A certificate of a senior financial officer of
the Borrower to the effect that, to the best of such officer's knowledge, as of
the Closing Date and after giving effect to the initial extension of credit
hereunder and to the other transactions contemplated hereby, (i) the aggregate
value of all Properties of the Borrower and its Subsidiaries at their present
fair salable value (i.e., the amount that may be realized
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within a reasonable time, considered to be six months to one year, either
through collection or sale at the regular market value, conceiving the latter as
the amount that could be obtained for the Property in question within such
period by a capable and diligent businessman from an interested buyer who is
willing to purchase under ordinary selling conditions), exceed the amount of all
the debts and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of the Borrower and its Subsidiaries, (ii) the
Borrower and its Subsidiaries will not, on a consolidated basis, have an
unreasonably small capital with which to conduct their business operations as
heretofore conducted and (iii) the Borrower and its Subsidiaries will have, on a
consolidated basis, sufficient cash flow to enable them to pay their debts as
they mature.
(o) Insurance Policies. The Agent shall have received evidence that the
insurance required by Section 5.6 is in full force and effect, together with
appropriate evidence showing the Agent as an additional named insured or loss
payee, as appropriate, all in form and substance reasonably satisfactory to the
Agent.
(p) Basic Subscribers; Cash Flow. After giving effect to the Cable One
Acquisition (i) the aggregate number of Basic Subscribers of the Borrower and
its Subsidiaries shall be at least equal to 190,000 and (ii) the aggregate
Annualized Cash Flow as at March 31, 1998 shall be at least equal to
$32,500,000, and the Agent shall have received a certificate of a Responsible
Officer of the Borrower to such effect.
(q) Acquisition. The Cable One Acquisition shall have been consummated
in accordance with the Acquisition Agreement, and the Agent shall have received
(i) a certificate of a Responsible Officer of the Borrower to the effect that
all material transactions contemplated by the Acquisition Agreement to be
consummated on or prior to the Closing Date have been consummated without
amendment, waiver or modification of the material terms thereof and (ii) the
legal opinions of counsel delivered under the Acquisition Agreement, and each
such opinion shall contain a statement or be accompanied by a letter addressed
to the Agent and the Lenders and dated such date, to the effect that Agent and
the Lenders may rely upon such opinion to the same extent as if it were
originally addressed to each of them, in form and substance satisfactory to the
Co-Arrangers.
(r) Acquisition Price. The aggregate consideration paid in connection
with the Cable One Acquisition shall not exceed $42,500,000, and the Agent shall
have received a certificate of a Responsible Officer of the Borrower to such
effect.
(s) Necessary Governmental Authorizations and Consents; Expiration of
Waiting Periods, Etc. The Borrower shall have
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obtained all governmental authorizations (including without limitation FCC
consents) and all consents of other Persons, in each case that are necessary or
advisable in connection with the Acquisition and the other transactions
contemplated by the Loan Documents and each of the foregoing shall be in full
force and effect, in each case other than those the failure to obtain or
maintain which, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. All applicable waiting periods shall
have expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse conditions
on the Acquisition or the financing thereof. No action, request for stay,
petition for review or rehearing, reconsideration, or appeal with respect to any
of the foregoing shall be pending, and the time for any applicable agency to
take action to set aside its consent on its own motion shall have expired.
(t) Reference Lenders. The Agent shall have received a letter from the
Borrower specifying Union Bank of California, N.A. as the initial Reference
Lender hereunder.
(u) Debt Ratios. The Agent shall have received a certificate of a
senior financial officer of the Borrower setting forth, as of the Closing Date,
after giving effect to the Acquisition, the funding of all Loans to be made
hereunder on the Closing Date, the issuance of the Subordinated Notes and the
consummation of all other transactions contemplated hereby to occur on the
Closing Date, (i) the actual Maximum Total Debt Ratio (which shall not exceed
7:00:1) and (ii) the actual Maximum Senior Debt Ratio (which shall not exceed
4:00:1).
(v) Additional Proceedings. The Agent shall have received such other
approvals, opinions and documents as any Lender, through the Agent, may
reasonably request and all legal matters incident to the making of such Loans
and issuance of such Letters of Credit shall be reasonably satisfactory to the
Agent.
4.2 Conditions to Each Loan or Letter of Credit. The agreement of each
Lender to make each Loan and to participate in each Letter of Credit, and the
agreement of the Agent to issue each Letter of Credit, requested to be made,
issued or participated in by it is subject to the satisfaction, immediately
prior to or concurrently with the making of such Loan or the issuance or
participation in such Letter of Credit, of the following conditions precedent:
(a) Representations and Warranties; No Default. The following
statements shall be true and the Borrower's acceptance of the proceeds of such
Loan or its delivery of an executed Letter of Credit Request shall be deemed to
be a representation and warranty of the Borrower on the date of such Loan or as
of
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the date of issuance of such Letter of Credit, as applicable, that:
(i) The representations and warranties contained in this
Agreement and in each other Loan Document and certificate or other
writing delivered to the Lenders prior to, on or after the Closing Date
pursuant hereto and on or prior to the date for such Loan or the
issuance of such Letter of Credit are correct on and as of such date in
all material respects as though made on and as of such date except to
the extent that such representations and warranties expressly relate to
an earlier date; and
(ii) No Default has occurred and is continuing or would result
from the making of the Loan to be made on such date or the issuance of
such Letter of Credit as of such date.
(b) Legality. The making of such Loan or the issuance of such Letter of
Credit, as applicable, shall not contravene any law, rule or regulation
applicable to any Lender or any Obligor.
(c) Borrowing Notice/Letter of Credit Request. The Agent shall have
received a borrowing notice or Letter of Credit Request, as applicable, pursuant
to the provisions of this Agreement from the Borrower.
4.3 Condition Subsequent. The Agent shall have received, on or before
August 31, 1998, an opinion of Xxxx, Raywid & Xxxxxxxxx, regulatory counsel to
the Borrower and the Guarantors, substantially in the form of Exhibit G hereto
and with such reasonable qualifications and exceptions as shall be acceptable to
the Co-Arrangers.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that from and after the Closing Date, so
long as any Commitment remains in effect, any Note remains outstanding and
unpaid or any other amount is owing to any Lender or the Agent hereunder, or any
Letter of Credit remains outstanding:
5.1 Financial Statements. (a) As soon as available and in any event
within 45 days after the end of each quarterly fiscal period of each fiscal year
of the Borrower, the Borrower shall deliver to each Lender consolidated
statements of income, retained earnings and cash flows of CCI and its
Subsidiaries (provided that if CCI shall acquire any Subsidiary other than the
Borrower, such statements shall also be provided on a consolidating basis) for
such period and for the period from the beginning of the respective fiscal year
to the end of such
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period, and the related consolidated balance sheets of CCI and its Subsidiaries
(provided that if CCI shall acquire any Subsidiary other than the Borrower, such
balance sheet shall also be on a consolidating basis) as at the end of such
period, setting forth in each case in comparative form the corresponding
consolidated figures (or consolidating figures, if CCI shall have acquired such
a Subsidiary) for the corresponding periods in the preceding fiscal year (except
that, in the case of the balance sheets, such comparison shall be to the last
day of the prior fiscal year), accompanied by a certificate of a senior
financial officer of CCI and the Borrower, which certificate shall state that
said consolidated (or consolidating, if applicable) financial statements fairly
present the consolidated financial condition and results of operations of CCI,
the Borrower and its Subsidiaries, in each case in accordance with GAAP
consistently applied, as at the end of, and for, such period (subject to normal
year-end audit adjustments); and
(b) as soon as available and in any event within 120 days after the end
of each fiscal year of the Borrower, the Borrower shall deliver to each Lender
consolidated statements of income, retained earnings and cash flows of CCI and
its Subsidiaries (including, separately stated, consolidating statements of
income, retained earnings and cash flows of CCI and its Subsidiaries) for such
fiscal year and the related consolidated balance sheet of CCI and its
Subsidiaries (including, separately stated, a consolidating balance sheet of CCI
and its Subsidiaries) as at the end of such fiscal year, setting forth in
comparative form the corresponding consolidated figures (or consolidating
figures, if CCI shall have acquired such a Subsidiary) for the preceding fiscal
year, and accompanied by an opinion thereon of the Accountants, which opinion
shall state that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of CCI and its
Subsidiaries as at the end of, and for, such fiscal year in accordance with
GAAP, and a statement of the Accountants to the effect that, in making the
examination necessary for their opinion, nothing came to their attention that
caused them to believe that the Borrower was not in compliance with Section 6.1,
insofar as such Section relates to accounting matters.
5.2 Certificates; Other Information. The Borrower shall
deliver to each Lender:
(a) within 45 days after the end of each quarterly fiscal period of
each fiscal year of the Borrower, (i) a Covenant Compliance Certificate and (ii)
a Quarterly Officer's Report;
(b) within five Business Days after the same are filed, copies of all
financial statements and reports which the Borrower, any Subsidiary or CCI may
make to, or file with, the
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Securities and Exchange Commission or any successor or analogous Governmental
Authority;
(c) promptly but, in any event, within five Business Days after receipt
thereof, copies of all financial reports (including, without limitation,
management letters), if any, submitted to the Borrower or any Subsidiary by the
Accountants in connection with any annual or interim audit of the books thereof;
(d) (i) as soon as available and in any event on or before December 31
of each fiscal year, a budget for the next following fiscal year setting forth
anticipated income, expense and capital expenditure items for each quarter
during such fiscal year, and (ii) quarterly, concurrently with the delivery of
the financial statements for each fiscal quarter during such fiscal year
pursuant to Section 5.1(a) above, a report setting forth a detailed comparison
to the budget referred to above;
(e) as soon as possible and in any event within five Business Days
after the occurrence of a Default or, in the good faith determination of a
Responsible Officer of the Borrower, a Material Adverse Effect, the written
statement by a Responsible Officer of the Borrower, setting forth the details of
such Default or Material Adverse Effect and the action which the Borrower
proposes to take with respect thereto;
(f) promptly, but in any event within 30 days after any change in the
senior management personnel of the Borrower or any Subsidiary, written notice of
such change;
(g) promptly but, in any event, within five Business Days after the
same become available, copies of all statements, reports and other information
which the Borrower or CCI sends to any holder of an equity interest therein;
(h) (A) as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know that any Termination Event with respect to
any Plan has occurred, a statement of a Responsible Officer of the Borrower
describing such Termination Event and the action, if any, which the Borrower
proposes to take with respect thereto, (B) promptly and in any event within ten
days after receipt thereof by the Borrower or any ERISA Affiliate of the
Borrower from the PBGC, copies of each notice received by the Borrower or such
ERISA Affiliate of the PBGC's intention to terminate any Plan or to have a
trustee appointed to administer any Plan, (C) promptly and in any event within
30 days after the filing thereof with the Internal Revenue Service, copies of
each Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Single Employer Plan maintained for or covering employees
of the Borrower or any Subsidiary if the present value of the accrued benefits
under the Plan exceeds its assets by an amount in excess
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of $500,000 and (D) promptly and in any event within ten days after receipt
thereof by the Borrower or any ERISA Affiliate of the Borrower from a sponsor of
a Multiemployer Plan or from the PBGC, a copy of each notice received by the
Borrower or such ERISA Affiliates concerning the imposition or amount of
withdrawal liability under Section 4202 of ERISA or indicating that such
Multiemployer Plan may enter reorganization status under Section 4241 of ERISA;
(i) promptly after the commencement thereof, but in any event not later
than five Business Days after service of process with respect thereto on, or the
obtaining of knowledge by, the Borrower or any Subsidiary, notice of each
material action, suit or proceeding before any Governmental Authority;
(j) within five days following receipt by the Borrower or any
Subsidiary, copies of all notices received by the Borrower or such Subsidiary
under any Material Contract or any instrument, document or agreement relating to
any Subordinated Indebtedness, relating to any material default, any claimed
force majeure or any other material provision thereof;
(k) within five days following receipt by the Borrower or any
Subsidiary, copies of all notices received by the Borrower or such Subsidiary
from the Internal Revenue Service or other taxing authority relating to any
material dispute regarding deductions, audits or any other material matter;
(l) promptly after receipt thereof, copies of any notices received by
the Borrower or any of its Subsidiaries under any Franchise of a material
default by the Borrower or any of its Subsidiaries in the performance of its
obligations thereunder; and
(m) promptly, such additional financial and other information as any
Lender, through the Agent, may from time to time reasonably request.
5.3 Payment of Obligations. The Borrower shall, and shall cause each of
its Subsidiaries to, pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, as the case may be, all its obligations of
whatever nature, except where the failure to so satisfy such obligations would
not have a Material Adverse Effect or except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence. The Borrower
shall, and shall cause each of its Subsidiaries to, (i) continue to engage in
business of the same general type as
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conducted by the Borrower and its Subsidiaries as of the Closing Date, (ii)
preserve, renew and keep in full force and effect its corporate, limited
liability company or partnership existence, as applicable, (iii) take all
reasonable action to maintain all rights, registrations, licenses, privileges
and franchises necessary or desirable in the normal conduct of its business, and
(iv) comply with all Contractual Obligations and Requirements of Law except to
the extent, in the case of this clause (iv), that failure to comply therewith
would not, in the aggregate, have a Material Adverse Effect.
5.5 Maintenance of Property. The Borrower shall, and shall cause each
of its Subsidiaries to, keep all property useful or necessary in its business in
good working order and condition (ordinary wear and tear excepted).
5.6 Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in the
amounts customarily maintained by such corporations, provided that the Borrower
will in any event maintain (with respect to itself and each of its Subsidiaries)
casualty insurance and insurance against claims for damages with respect to
defamation, libel, slander, privacy or other similar injury to person or
reputation (including misappropriation of personal likeness), in such amounts as
are then customary for Persons engaged in the same or similar business similarly
situated (such insurance to cover claims arising out of events occurring before
and after the Closing Date), and shall designate the Agent as loss payee or
additional insured, as appropriate with respect to such insurance and cause such
insurance to provide for 30 days' prior written notice to Agent of any
modification or cancellation of such insurance.
5.7 Inspection of Property; Books and Records; Discussions. The
Borrower shall, and shall cause each of its Subsidiaries to, keep proper books
of records and account in which full, true and correct entries in conformity
with GAAP and all Requirements of Law shall be made of all material dealings and
transactions in relation to its business and activities; and upon reasonable
notice and at such reasonable times during usual business hours, permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its Accountants.
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5.8 Environmental Laws. The Borrower shall, and shall cause each of its
Subsidiaries to:
(a) Comply in all material respects with, and ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Control
Statutes and obtain and comply in all material respects with any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Control Statutes;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Control Statutes and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities regarding
Environmental Control Statutes except to the extent that the same are being
contested in good faith by appropriate proceedings; and
(c) Defend, indemnify and hold harmless the Agent and the Lenders, and
their respective employees, agents, officers and directors, from and against any
and all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under any Environmental Control Statutes
applicable to the operations of the Borrower or any of its Subsidiaries, or the
Borrower's or any of such Subsidiaries' interest in Properties, or any orders,
requirements or demands of Governmental Authorities related thereto, including,
without limitation, attorneys' and consultants' fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except to
the extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. This indemnity
shall continue in full force and effect regardless of the termination of this
Agreement.
5.9 Use of Proceeds. The Borrower will use the proceeds of the Loans,
and any Letters of Credit issued hereunder, as follows:
(i) the Term Loans shall be used in full on the Closing Date
(A) to refinance existing indebtedness of the Borrower and (B) to pay a portion
of the purchase price with regard to the Cable One Acquisition and expenses
associated therewith;
(ii) the Revolving Loans shall be used (A) to refinance
existing indebtedness of the Borrower, (B) to pay a portion of the purchase
price with regard to the Cable One Acquisition and expenses associated
therewith, (C) for capital expenditures,
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working capital and general corporate purposes and (D) to fund Permitted
Acquisitions; and
(iii) any Letters of Credit shall be used for general
corporate purposes.
Notwithstanding anything herein to the contrary, no Loan or Letter of Credit
will be used for the purchasing or carrying of any Margin Stock.
5.10 Compliance With Laws, Etc. The Borrower shall comply, and shall
cause each of its Subsidiaries to comply, in all material respects with all
applicable Requirements of Law, such compliance to include, without limitation
(i) paying before the same become delinquent all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
upon any of its Properties and (ii) paying all lawful claims which if unpaid
might become a Lien upon any of its Properties; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to pay and discharge
or to cause to be paid and discharged any such tax, assessment, charge, levy or
claim so long as (A) the validity or applicability thereof is being contested in
good faith by appropriate proceedings and (B) the Borrower or such Subsidiary
shall, to the extent required by GAAP, have set aside on its books adequate
reserves with respect thereto.
5.11 Certain Obligations Respecting Subsidiaries; Prohibitions on
Certain Agreements. (a) The Borrower will cause each of its Subsidiaries
hereafter formed or acquired to execute and deliver to the Agent promptly upon
the formation or acquisition thereof (i) a Guarantee in form and substance
satisfactory to the Agent, guaranteeing the Obligations, (ii) a Guarantor
Security Agreement,in form an substance satisfactory to the Agent, granting to
the Agent, for the benefit of the Lenders, a security interest in the tangible
and intangible personal property of such Subsidiary, together with appropriate
Lien searches requested by the Agent indicating the Lenders' first priority Lien
on such personal property, (iii) UCC-1 Financing Statements, duly executed by
such Subsidiary, in form and substance satisfactory to the Agent and, in
connection with such deliveries, cause to be delivered to the Agent (A) the
stock certificates representing the issued and outstanding shares of stock of
such Subsidiaries, together with undated stock powers executed in blank, (B) a
favorable written opinion of counsel satisfactory to the Agent as to such
matters relating thereto as any Lender through the Agent may reasonably request,
in form and substance satisfactory to the Agent and (C) such other agreements,
instruments, approvals or other documents as any Lender through the Agent may
reasonably request and (iv) evidence acceptable to the Agent that the Borrower
and such Subsidiary are
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concurrently complying with Section 4.19 of the Subordinated Indenture.
(b) The Borrower will, and will cause each of its Subsidiaries to, take
such action from time to time as shall be necessary to ensure that the Borrower
and each of its Subsidiaries at all times own (subject only to the Liens of the
Collateral Documents and the Guarantor Collateral Documents) at least the same
percentage of the issued and outstanding shares of each class of stock of each
of its Subsidiaries (or the same percentage of such other equity interest, as
applicable) as is owned on the date hereof. In the event that any additional
shares of stock (or other equity interests) shall be issued by any Subsidiary,
the Borrower agrees forthwith to deliver (or cause to be delivered) to the Agent
pursuant to the Collateral Documents and the Guarantor Collateral Documents the
certificates evidencing such shares of stock, accompanied by undated stock
powers executed in blank (or take such other actions as necessary to perfect an
interest in such other equity interests) and to take such other action as the
Agent shall request to perfect the security interest created therein pursuant to
the Collateral Documents and the Guarantor Collateral Documents.
(c) Except for the documents executed in connection with the
Subordinated Indenture, the Borrower will not, and will not permit any of its
Subsidiaries to enter into any indenture, agreement, instrument or other
arrangement that, directly or indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon, the incurrence or payment of indebtedness, the granting of Liens, the
declaration or payment of dividends, the making of loans, advances or
investments or the sale, assignment, transfer or other disposition of Property.
(d) The Borrower will cause all Telephone Systems owned by it or its
Subsidiaries to be held by Classic Telephone or one or more of its Subsidiaries.
5.12 Interest Rate Protection. The Borrower will, within 120 days of
the Closing Date and at all times thereafter, cause at least 50% of the
aggregate outstanding principal amount of the Indebtedness of the Borrower and
its Subsidiaries, together with the aggregate unused amount of the Commitments
to be either (i) subject to a fixed interest rate pursuant to the Subordinated
Indenture or (ii) subject to Interest Rate Agreements with one or more of the
Lenders (and/or with a bank or other financial institution having capital,
surplus and undivided profits of at least $500,000,000) on terms satisfactory to
the Co-Arrangers, in each case for a period of at least two years measured from
the Closing Date.
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5.13 Year 2000. The Borrower will take, and will cause its Subsidiaries
to take, all action necessary to assure that the Borrower's and each
Subsidiary's computer-based systems are able to operate effectively and process
data effectively, including data composed of or including dates on and after
January 1, 2000. At the request of the Agent, the Borrower will provide the
Lenders assurances reasonably acceptable to the Agent of the Borrower's and each
Subsidiary's capacity to deal with the foregoing.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that from and after the Closing Date, so
long as any Commitments remain in effect, any Note remains outstanding and
unpaid or any other amount is owing to any Lender or the Agent hereunder, or any
Letter of Credit remains outstanding:
6.1 Financial Condition Covenants. The Borrower shall not:
(a) Maximum Total Debt Ratio. As of the last day of any fiscal quarter,
permit the Maximum Total Debt Ratio to exceed the following levels during the
periods indicated:
Period Ratio
------ -----
Closing Date to and including June 30,
1999 7:00:1
July 1, 1999 to and including
December 31, 1999 6.90:1
January 1, 2000 to and including
December 31, 2000 6:75:1
January 1, 2001 to and including
December 31, 2001 6:50:1
January 1, 2002 to and including
December 31, 2002 6:00:1
January 1, 2003 and thereafter 5:50:1
(b) Maximum Senior Debt Ratio. As of the last day of any fiscal
quarter, permit the Maximum Senior Debt Ratio to exceed the following levels
during the periods indicated:
Period Ratio
------ -----
Closing Date to and including
December 31, 1999 4:00:1
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January 1, 2000 to and including
December 31, 2000 3:75:1
January 1, 2001 to and including
December 31, 2001 3:50:1
January 1, 2002 to and including
December 31, 2002 3:25:1
January 1, 2003 and thereafter 3:00:1
(c) Total Interest Coverage Ratio. As of the last day of any fiscal
quarter, permit the Total Interest Coverage Ratio to be less than the following
levels during the periods indicated:
Period Ratio
------ -----
Closing Date to and including
December 31, 1999 1:40:1
January 1, 2000 to and including
December 31, 2000 1:50:1
January 1, 2001 to and including
December 31, 2001 1:60:1
January 1, 2002 and thereafter 1:75:1
(d) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio
as of the last day of any fiscal quarter, commencing with the fiscal quarter
beginning September 30, 2002, to be less than 1.05:1.
(e) Pro Forma Debt Service Coverage Ratio. As of the last day of any
fiscal quarter, permit the Pro Forma Debt Service Coverage Ratio to be less than
the following levels during the periods indicated:
Period Ratio
------ -----
Closing Date to and including
December 31, 2001 1:25:1
January 1, 2002 to and including
December 31, 20002 1:35:1
January 1, 2003 and thereafter 1:40:1
(f) Maximum Capital Expenditures. Permit Capital Expenditures of the
Borrower and its Subsidiaries to be more than the following levels during the
periods indicated:
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Period Maximum Amount
------ --------------
Closing Date to December 31,
1998 $ 9,000,000
Fiscal Year Ending
December 31, 1999 $19,000,000
Fiscal Year Ending
December 31, 2000 $19,000,000
Fiscal Year Ending
December 31, 2001 $19,000,000
Notwithstanding the foregoing, in the event the Borrower and its
Subsidiaries do not, in any fiscal year, exhaust such amount with respect to
such fiscal year, such excess amount may be used to make, or commit to make,
Capital Expenditures in the immediately following fiscal year, but not
thereafter.
6.2 Limitation on Indebtedness. The Borrower shall not create, incur,
assume or suffer to exist any Indebtedness, and shall not permit any of its
Subsidiaries to create, incur, assume or suffer to exist any Indebtedness,
except for:
(a) Indebtedness created hereunder and under the Notes and the other
Loan Documents;
(b) Indebtedness of the Borrower or any of its Subsidiaries outstanding
on the Closing Date and listed on Schedule 6.2 (and not referred to in any other
clause of this Section 6.2);
(c) the Subordinated Indebtedness;
(d) Indebtedness under any Interest Rate Agreement required pursuant to
Section 5.12;
(e) Indebtedness (i) evidenced by performance bonds issued in the
ordinary course of business or reimbursement obligations in respect thereof,
(ii) evidenced by a letter of credit facility related to insurance associated
with claims for work-related injuries or (iii) for bank overdrafts incurred in
the ordinary course of business that are promptly repaid, in an aggregate amount
(under clauses (i), (ii) and (iii)) not to exceed $1,000,000 at any one time
outstanding;
(f) Indebtedness of Wholly Owned Subsidiaries of the Borrower to the
Borrower or to other Wholly Owned Subsidiaries of the Borrower;
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(g) additional Indebtedness of the Borrower and its Subsidiaries not
referred to in clauses (a) - (f) above (including, without limitation,
Capitalized Lease Obligations and other Indebtedness secured by Liens permitted
by Section 6.3(b)) up to but not exceeding $2,000,000 at any one time
outstanding; and
(h) Indebtedness to the extent representing a replacement, renewal,
refinancing or extension (collectively, a "refinancing") of outstanding
Indebtedness of the Borrower or any Subsidiary, as the case may be, incurred in
compliance with clause (b) or (c) above; provided, however, that (i)
Indebtedness of the Borrower may not be refinanced under this clause (h) with
Indebtedness of any Subsidiary, (ii) any such refinancing shall not exceed the
sum of the principal amount or redemption payment value (or, if such
Indebtedness provides for a lesser amount to be due and payable upon a
declaration of acceleration thereof at the time of such refinancing, an amount
no greater than such lesser amount) of the Indebtedness being refinanced plus
the amount of accrued interest thereon and such reasonable fees and expenses
incurred in connection therewith, (iii) Indebtedness representing a refinancing
shall not mature prior to the stated maturity of the Indebtedness refinanced and
shall have a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of the Indebtedness being refinanced, (iv)
Subordinated Indebtedness may only be refinanced with Indebtedness subordinated
to the Obligations, and otherwise on terms, at least as favorable to the Lenders
as the Subordinated Indebtedness and (v) unsecured Indebtedness which is pari
passu with the Obligations may only be refinanced with unsecured Indebtedness,
which is either pari passu with the Obligation or subordinated to the
Obligations on terms at least as favorable to the Lenders as the Subordinated
Indebtedness.
6.3 Limitation on Liens. The Borrower shall not, and shall not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens created hereunder or under any of the other Loan Documents;
(b) Liens on real and/or tangible personal Property acquired after the
date hereof (by purchase, construction or otherwise) by the Borrower or any of
its Subsidiaries, each of which Liens either (A) existed on such Property before
the time of its acquisition and was not created in anticipation thereof or (B)
was created solely for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost (including the cost of
construction) of such Property; provided that (i) no such Lien shall extend to
or cover any Property of the Borrower or any such Subsidiary other than the
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Property so acquired and improvements thereon and (ii) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 100% of the fair
market value (as determined in good faith by a senior financial officer of the
Borrower) of such Property at the time it was acquired (by purchase,
construction or otherwise);
(c) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on the books of the Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP;
(d) Liens created by operation of law not securing the payment of
Indebtedness for money borrowed or guaranteed, including carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business which are not overdue for a period of
more than 30 days or which are being contested in good faith by appropriate
proceedings and Liens securing judgments but only to the extent, for an amount
and for a period not resulting in an Event of Default under Section 7(i);
(e) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(f) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, would not cause a Material Adverse Effect;
(h) Liens existing on the date hereof and referred to in Schedule 6.3
(and not referred to in any other clause of this Section 6.3); and
(i) Liens in favor of The Chase Manhattan Bank under the Existing
Credit Agreement, provided that such Liens shall have been released (and
evidence thereof provided to the Agent) within three Business Days following the
Closing Date.
6.4 Limitation on Fundamental Changes. The Borrower shall not, and
shall not permit any of its Subsidiaries to, (i) enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or
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dissolution), or (ii) convey, sell, lease, assign, transfer or otherwise dispose
of all or substantially all of its property, business or assets, or (iii)
acquire any business or Property from, or capital stock of, or be a party to any
acquisition of, any Person (except for purchases of equipment, programming
rights and other Property to be sold or used in the ordinary course of business)
except that, so long as no Default has occurred and is continuing or would
result therefrom:
(a) Black Creek may consummate the Cable One Acquisition on the Closing
Date in accordance with the terms of the Acquisition Agreement;
(b) the Borrower may consummate Permitted Acquisitions in accordance
with the terms of Section 6.7(h);
(c) any Subsidiary of the Borrower may be merged or consolidated with
or into: (i) the Borrower, if the Borrower shall be the continuing or surviving
corporation or (ii) any other Subsidiary; provided that if any such transaction
shall be between a Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned
Subsidiary shall be the continuing or surviving corporation; and
(d) any Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its Property (upon voluntary liquidation or otherwise) to the
Borrower or a Wholly Owned Subsidiary of the Borrower.
6.5 Limitation on Sale of Assets. The Borrower will not, nor will it
permit any of its Subsidiaries to, make any Asset Disposition except Asset
Dispositions of (i) obsolete or worn-out Property, tools or equipment no longer
used or useful in its business so long as the aggregate amount thereof sold in
any single fiscal year by the Borrower and its Subsidiaries shall not have a
fair market value in excess of $2,000,000 and (ii) CATV Systems, so long as the
aggregate fair market value of any CATV Systems sold under this clause (ii)
during any twelve-month period shall not exceed $2,000,000; provided that in
each case, (A) the Borrower makes the mandatory payment, if any, required
pursuant to Section 2.5(b), (B) no Default has occurred and is continuing or
would result from such Asset Disposition, (C) the Borrower or such Subsidiary,
as applicable, receives at least fair market value consideration for such Asset
Disposition, as determined in good faith by the Board of Directors (or similar
authority for a limited liability company or partnership) of the Borrower or
such Subsidiary, as applicable, and evidenced in a written resolution thereof,
(D) not less than 75% of the consideration received by the Borrower or such
Subsidiary, as applicable, is in the form of cash and (E) if such Asset
Disposition is of the Borrower's equity interest in a Subsidiary (or any
Subsidiary's equity interest in another Subsidiary), such
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Asset Disposition shall constitute a sale of all equity interests in such
Subsidiary. .
6.6 Limitation on Dividends. The Borrower shall not, and shall not
permit any of its Subsidiaries to (a) if a corporation, declare or pay any
dividend (other than dividends payable solely in common stock of the Borrower or
its Subsidiaries) on, or make any payment on account of, or set apart assets for
a sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower or its Subsidiaries or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, and (b) if a partnership or
a limited liability company, make any distribution with respect to the ownership
interests therein, or, in either case, any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Subsidiary (such declarations, payments,
setting apart, purchases, redemptions, defeasance, retirements, acquisitions and
distributions being herein called "Restricted Payments"), except that (i) any
Subsidiary (other than WTAC) may make Restricted Payments to the Borrower or to
any other Wholly Owned Subsidiary of the Borrower and (ii) commencing February
1, 2004, the Borrower may make Restricted Payments to CCI for the purpose of
permitting CCI to make regularly scheduled payments of interest on the CCI Notes
as required pursuant to the terms of the CCI Indenture as in effect on the
Closing Date; provided that in each case (A) no Default has occurred and is
continuing or would result from the making of such Restricted Payment, (B) the
aggregate amount of all Restricted Payments made on or after the Closing Date
shall not exceed an amount equal to the difference between (x) the Cumulative
Credit and (y) 1.4 times Cumulative Interest Expense (and the Agent shall have
received a certificate of a Responsible Officer of the Borrower setting forth
calculations supporting the condition described in this clause (y) and (C) with
respect to clause (ii) above, no such Restricted Payment shall be permitted
during any period in which the Maximum Total Debt Ratio equals or exceeds 5.50
to 1.00.
6.7 Limitation on Investments, Loans and Advances. The Borrower will
not, and will not permit any of its Subsidiaries to, make any advance, loan,
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets constituting a business
unit of, or make any other investment in (any of the foregoing, an
"investment"), any Person, except for:
(a) investments permitted by Section 6.4(a) and (b);
(b) investments in marketable securities, liquid investments and other
financial instruments that are acquired for investment purposes and may be
readily sold or otherwise
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liquidated, that have a value which may be readily established and which are
investment grade;
(c) investments outstanding on the date hereof and identified in
Schedule 6.7;
(d) operating deposit accounts with banks;
(e) investments by the Borrower and its Subsidiaries in the Borrower
and its Subsidiaries;
(f) Interest Rate Agreements, provided that, without the limiting
obligation of the Borrower under Section 5.12, when entering into any Interest
Rate Agreement that at the time has, or at any time in the future may give rise
to, any credit exposure, the aggregate credit exposure under all Interest Rate
Agreements (including the Interest Rate Agreement being entered into) shall not
exceed $5,000,000;
(g) investments not referred to in any other clause of this Section 6.7
up to but not exceeding $2,000,000 in the aggregate; and
(h) Permitted Acquisitions, so long as:
(i) unless the Majority Lenders shall otherwise consent in
writing, (1) the aggregate purchase price of all Permitted Acquisitions
of CATV Systems shall not exceed $10,000,000 and (2) the aggregate
purchase price of all Permitted Acquisitions of Other Communications
Businesses shall not exceed $2,000,000;
(ii) such acquisition (if by purchase of assets, merger or
consolidation) shall be effected in such manner so that the acquired
CATV System and the related assets thereof, are owned either by the
Borrower or a Wholly Owned Subsidiary of the Borrower, and, if effected
by merger or consolidation involving the Borrower, the Borrower shall
be the continuing or surviving entity;
(iii) such acquisition (if by purchase of stock) shall be
effected in such manner so that the acquired entity becomes a Wholly
Owned Subsidiary of the Borrower;
(iv) the Borrower shall deliver to the Agent (which shall
promptly forward copies thereof to each Lender) (1) no later than five
Business Days prior to the consummation of each such acquisition (or
such earlier date as shall be five Business Days after the execution
and delivery thereof), executed counterparts of the respective
agreements or instruments pursuant to which such acquisition is to be
consummated (including, without limitation, any related
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management, non-compete, employment, option or other material
agreements), any schedules to such agreements or instruments and all
other material ancillary documents to be executed or delivered in
connection therewith and (2) promptly following request therefor,
copies of such other information or documents relating to each such
acquisition as the Agent or the Majority Lenders shall have reasonably
requested;
(v) the agreements, instruments and other documents referred
to in the foregoing clause (iv) shall provide that
(1) the entire amount of the consideration payable by
the Borrower and its Subsidiaries in connection with such
acquisition (other than customary post-closing adjustments and
indemnity obligations, and other than Indebtedness incurred in
connection with such acquisition that is permitted under
Section 6.2(g)) shall be payable on the date of such
acquisition,
(2) neither the Borrower nor any of its Subsidiaries
shall, in connection with such acquisition, assume or remain
liable in respect of (x) any Indebtedness of the seller or
sellers (except for Indebtedness permitted under Section
6.2(g)) or (y) other obligations of the seller or sellers
(except for obligations incurred in the ordinary course of
business in operating the CATV System so acquired and
necessary and desirable to the continued operation of such
CATV System), and
(3) all Property to be acquired in connection with
such acquisition shall be free and clear of any and all Liens,
except to the extent permitted by Section 6.3 hereof (and in
the event any such Property is subject to any Lien not
permitted by this clause (3) then concurrently with such
acquisition such Lien shall be released);
(vi) no later than five Business Days prior to the
consummation of such acquisition, the Borrower shall have delivered to
each Lender a Covenant Compliance Certificate prepared on a pro forma
basis in accordance with Section 1.2(e) and assuming that interest for
such period had been equal to the actual blended interest rate paid by
the Borrower during such period on the Loans);
(vii) the acquired CATV System shall be in a State in which
the Borrower and its Subsidiaries have CATV Systems on the Closing Date
(or another State contiguous thereto);
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(viii) concurrently with the consummation of such acquisition,
all actions (1) required under Section 5.11 and (2) required by the
Agent to perfect a security interest in all personal property assets
acquired shall have been taken (including but not limited to delivery
of an opinion of counsel to the Borrower and its Subsidiaries in form
and substance satisfactory to the Co-Arrangers with respect to such
perfection and with respect to regulatory compliance of the assets or
entity to be acquired); and
(ix) at the time of such acquisition and after giving effect
thereto, no Default shall have occurred and shall be continuing.
6.8 Modifications of Certain Documents; Subordinated Indebtedness;
Certain Changes. (a) The Borrower will not, nor will it permit any of its
Subsidiaries to, consent to any modification, supplement or waiver of any of the
provisions of (i) the Acquisition Agreement, (ii) the Tax Sharing Agreement,
(iii) any agreement, instrument or other document relating to the Subordinated
Indebtedness (including but not limited to the Subordinated Indenture) or (iv)
the Certificate of Incorporation of the Borrower or of Universal Cable Holding,
Inc., Universal Cable Communications Inc., Universal Cable of Beaver, Oklahoma,
Inc. and Universal Cable Midwest, Inc., without, in each case, the prior written
consent of the Majority Lenders.
(b) Neither the Borrower, nor any of its Subsidiaries, will purchase,
redeem, retire or otherwise acquire for value, or set apart any money for a
sinking, defeasance or other analogous fund for the purchase, redemption,
retirement or other acquisition of, or make any payment or prepayment of the
principal of or interest on, or any other amount owing in respect of, the
Subordinated Indebtedness; provided that the Borrower may make regularly
scheduled payments of interest on the Subordinated Notes as required pursuant to
the terms of the Subordinated Indenture as in effect on the Closing Date (it
being understood that no such payment shall be permitted if (i) a Default shall
have occurred and be continuing under Section 7(a), or (ii) for the period
described in the Subordinated Indenture, any other Default shall have occurred
and be continuing).
(c) The Borrower shall not designate any Indebtedness as "Designated
Senior Indebtedness" (as defined in Subordinated Indenture) for purposes of the
Subordinated Indenture without the
prior written consent of Majority Lenders.
(d) The Borrower will not, nor will it permit any of its Subsidiaries
to, change its legal, operating or trade names without the prior written consent
of the Agent.
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6.9 Transactions with Affiliates. The Borrower shall not, and shall not
permit any of its Subsidiaries to, enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property, employee
compensation arrangements, or the rendering of any service, with any Affiliate
or any Subsidiary not a Wholly Owned Subsidiary unless (i) such transaction is
in the ordinary course of the Borrower's or such Subsidiary's business and is
upon terms no less favorable to the Borrower or such Subsidiary, as the case may
be, than it would obtain in a comparable arm's length transaction with a Person
not an Affiliate, (ii) in the event such transaction involves an aggregate
amount in excess of $1,000,000, the terms of such transaction are set forth in
writing and shall have been approved by a majority of the members of the Board
of Directors (or corresponding authority with respect to a limited liability
company or partnership) having no personal stake in such transaction (and such
majority determines that such transaction satisfies the criteria in clause (i)
above) and (iii) in the event such transaction involves an aggregate amount in
excess of $10,000,000, the Borrower has received a written opinion from a
nationally recognized independent investment banking firm, or nationally
recognized accounting or appraisal firm, that such transaction is fair to the
Borrower and its Subsidiaries from a financial point of view. Notwithstanding
any provision in this Section 6.9 to the contrary, the Borrower shall be
permitted to pay the Investment Banking Fee provided that no Default has
occurred and is continuing.
6.10 Fiscal Year. Borrower shall not permit its fiscal year or the
fiscal year of any of its Subsidiaries to end on a day other than December 31.
6.11 Sale-Leaseback Transactions. The Borrower shall not, and shall not
permit any of its Subsidiaries to, sell, assign or otherwise transfer any of its
Properties, rights or assets (whether now owned or hereafter acquired) to any
Person and thereafter directly or indirectly lease back the same or similar
property.
6.12 Management Fees. The Borrower shall not, and shall not permit any
of its Subsidiaries to, incur any management fees for services rendered.
Notwithstanding any provision in this Section 6.12 to the contrary, the Borrower
shall be permitted to pay the Investment Banking Fee provided that no Default
has occurred and is continuing.
6.13 Lines of Business. The Borrower will not, nor will it permit any
of its Subsidiaries to, engage to any substantial extent in any line or lines of
business activity other than the business of owning and operating (i) CATV
Systems, (ii) Telephone Systems (and businesses related to such Telephone
Systems) and (iii) Other Communications Businesses, provided that in any event
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at least 85% of the gross operating revenues of the Borrower and its
Subsidiaries shall be derived from the ownership and operation of U.S. domestic
CATV Systems.
6.14 Limitation on Equity Offerings. The Borrower will not, and will
not permit any Subsidiary to, make any Equity Offering of the ownership
interests of any Subsidiary (other than to the Borrower or a Wholly Owned
Subsidiary).
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall default in the payment when due (whether at
stated maturity or upon mandatory or optional prepayment) of any principal of or
interest on any Loan, any fee or any other amount payable by it hereunder or
under any other Loan Document; or
(b) Any representation or warranty made or deemed made by any Obligor
herein or in any other Loan Document or which is contained in any certificate,
document or financial or other statement furnished at any time under or in
connection with this Agreement or any other Loan Document shall prove to have
been incorrect in any material respect when made or deemed made; or
(c) The Borrower shall default in the observance or performance of any
agreement contained in Section 4.3, 5.2(e), 5.4(ii) or 5.9 or any provision of
Section 6; or CCI shall default in the performance of any of its obligations
under Section 24 of the Pledge Agreement; or
(d) Any Obligor shall default in the observance or performance of any
other agreement or obligation contained in this Agreement or the other Loan
Documents (or, in the case of CCI, in the performance of any of its obligations
in the Tax Sharing Agreement) (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a period of
30 days after notice thereof from the Agent to the Borrower; or
(e) Any Guarantee shall cease, for any reason, to be in full force and
effect; or
(f) The Borrower, CCI or any other Obligor shall default in the payment
when due of principal of or interest on any Indebtedness (other than the Notes)
issued under the same indenture or other agreement, if the original principal
amount of Indebtedness covered by such indenture or agreement is $1,000,000 or
more, or in the payment when due of any amount under any
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Interest Rate Agreement; or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such Indebtedness or
any event specified in any Interest Rate Agreement shall occur if the effect of
such event is to cause, or (with the giving of any notice or the lapse of time
or both) to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness to become
due, or to be prepaid in full (whether by redemption, purchase, offer to
purchase or otherwise), prior to its stated maturity or to have the interest
rate thereon reset to a level so that securities evidencing such Indebtedness
trade at a level specified in relation to the par value thereof or, in the case
of an Interest Rate Agreement, to permit the payments owing under such Interest
Rate Agreement to be liquidated; or
(g) (i) The Borrower or any other Obligor shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or the Borrower or any
other Obligor shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against the Borrower or any other Obligor any
case, proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged, unstayed or unbonded
for a period of 60 days; or (iii) there shall be commenced against the Borrower
or any other Obligor any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Borrower or
any other Obligor shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any other Obligor shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due or there shall be a general assignment for
the benefit of creditors; or
(h) (i) The Borrower or any Commonly Controlled Entity shall engage in
any non-exempt "prohibited transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as
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defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee
would reasonably be expected to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA (other than a standard termination) or (v) the
Borrower or any Commonly Controlled Entity would reasonably be expected to incur
any liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan; and in each case regarding clauses (i)
through (v) above, such event or condition, together with all other such events
or conditions, if any, would reasonably be expected to result in a Material
Adverse Effect; or
(i) One or more judgments or decrees shall be entered against the
Borrower or any Subsidiary involving in the aggregate a liability (not paid or
fully covered by insurance where the insurer has admitted liability in respect
of such judgment) of $1,000,000 or more, or involving in the aggregate a
liability (regardless of insurance coverage) of $5,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof or in any event five days
before the date of any sale pursuant to such judgment or decree; or
(j) A reasonable basis shall exist for the assertion against the
Borrower or any of its Subsidiaries, or any predecessor in interest of the
Borrower or any of its Subsidiaries, of (or there shall have been asserted
against the Borrower or any of its Subsidiaries) any claims or liabilities,
whether accrued, absolute or contingent, based on or arising from the
generation, storage, transport, handling or disposal of Hazardous Materials by
the Borrower or any of its Subsidiaries, Affiliates or predecessors that, in the
judgment of the Majority Lenders is reasonably likely to be determined adversely
to the Borrower or any of its Subsidiaries, and the amount thereof (either
individually or in the aggregate) is reasonably likely to have a Material
Adverse Effect (insofar as such amount is payable by the Borrower or any of its
Subsidiaries but after deducting any portion thereof that is reasonably expected
to be paid by other creditworthy Persons jointly and severally liable therefor);
or
(k) Either one or more of the following events shall occur and be
continuing:
(i) the Borrower shall cease to be a Wholly Owned Subsidiary
of CCI;
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(ii) J. Xxxxxxx Xxxxxxx and Xxxxxx X. Seach shall cease for
any reason to be actively involved in the daily operation and strategic
direction of the business of the Borrower and its Subsidiaries (unless
a permanent replacement or replacements with equivalent knowledge and
experience in the cable television industry acceptable to the Majority
Lenders shall have been appointed within 90 days);
(iii) prior to a Qualified Public Offering, the Initial
Stockholders shall cease to own, collectively, on a fully diluted basis
(in other words, giving effect to the exercise of any warrants, options
and conversion and other rights), capital stock representing at least
75% of the votes that may be cast in an election of directors of CCI;
(iv) after a Qualified Public Offering either (x) the Initial
Stockholders shall cease to own, collectively, on a fully diluted basis
(in other words, giving effect to the exercise of any warrants, options
and conversion and other rights), capital stock representing at least
30% of the aggregate fair market value (or, if greater, the aggregate
liquidation value) of the capital stock of all classes of CCI and cease
to hold at least 30% of the aggregate shares of voting capital stock of
CCI (representing at least 30% of the votes that may be cast in an
election of directors of CCI) or (y) any person or group (within the
meaning of Rule 13d-5 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Section 13(d) and 14(d) of the
Exchange Act) (other than the Initial Stockholders) becomes, directly
or indirectly, in a single transaction or in a related series of
transactions by way of merger, consolidation or other business
combination or otherwise, the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of more than 30% of the capital stock of
CCI on a fully-diluted basis (in other words, giving effect to the
exercise of any warrants, options and conversion and other rights); or
(v) a majority of the Board of Directors of CCI and the
Borrower, respectively, shall no longer be composed of individuals (i)
who were members of said applicable Board on the Closing Date, (ii)
whose election or nomination to said applicable Board was approved by
individuals referred to in the preceding clause (i) constituting at the
time of such election or nomination at least a majority of said Board
or (iii) whose election or nomination to said Board was approved by the
Initial Stockholders; or
(l) Except for Franchises for CATV Systems that cover fewer than 5% of
the Subscribers of the Borrower and its Subsidiaries (determined as at the last
day of the most recent fiscal quarter
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for which a Quarterly Officers' Report shall have been delivered), one or more
Franchises relating to the CATV Systems of the Borrower and its Subsidiaries
shall be terminated or revoked such that the Borrower or such Subsidiary is no
longer able to operate such Franchises and retain the revenue received therefrom
or the Borrower or such Subsidiary or the grantors of such Franchises shall fail
to renew such Franchises at the stated expiration thereof such that the Borrower
or such Subsidiary is no longer able to operate such Franchises and retain the
revenue received therefrom; or
(m) The Liens created by the Collateral Documents and/or the Guarantor
Collateral Documents shall at any time not constitute valid and perfected Liens
on the collateral intended to be covered thereby (to the extent perfection by
filing, registration, recordation or possession is required herein or therein)
in favor of the Agent, free and clear of all other Liens (other than Liens
permitted under Section 6.3), or, except for expiration in accordance with its
terms, any of the Collateral Documents and/or the Guarantor Collateral Documents
shall for whatever reason be terminated or cease to be in full force and effect,
or the enforceability thereof shall be contested by any Obligor; or
(n) There shall be any amendment to the provisions of the Subordinated
Indenture or the CCI Indenture without the prior written consent of the Majority
Lenders or the Borrower or any Subsidiary shall fail to comply with the
subordination provisions of the Subordinated Indenture; or
(o) Any of the following shall occur and be continuing:
(i) Universal Cable Holding, Inc. shall cease to own
at least 75% of the issued and outstanding shares of common
stock of each of Universal Cable Communications Inc.,
Universal Cable of Beaver, Oklahoma, Inc. and Universal
Cable Midwest, Inc.,
(ii) Xxxxxx Xxxxxx, Xxxxx Xxxxxxxx and/or Xxxxx Xxxxxxxxx,
collectively, shall cease to own at least 25% of the issued and
outstanding shares of common stock of each of Universal Cable
Communications Inc., Universal Cable of Beaver, Oklahoma, Inc. and
Universal Cable Midwest, Inc.,
(iii) Universal Cable Communications Inc., Universal Cable of
Beaver, Oklahoma, Inc. and Universal Cable Midwest, Inc. shall cease to
hold all of the issued and outstanding shares of Junior Stock of
Classic Cable Holding, Inc. and the Borrower shall cease to own all of
the issued and outstanding shares of Senior Stock of Classic Cable
Holding, Inc.; or
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(iv) Classic Cable Holding, Inc. shall cease to hold all of
the issued and outstanding shares of Junior Stock of WTAC and the
Borrower shall cease to hold all of the issued and outstanding shares
of Senior Stock of WTAC; or
(p) Any Subsidiary of the Borrower shall fail to be a member of the
same affiliated group of corporations filing consolidated returns for Federal
income tax purposes (within the meaning of Section 1504 of the Code);
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above, automatically the Commitments to the Borrower and the
commitment to issue Letters of Credit shall immediately terminate and the Loans
made to the Borrower hereunder (with accrued interest thereon) and all other
Obligations shall immediately become due and payable, and (B) if such event is
any other Event of Default, with the consent of the Majority Lenders, the Agent
may, or upon the request of the Majority Lenders, the Agent shall, take any or
all of the following actions: (i) by notice to the Borrower declare the
Commitments to the Borrower and the commitment to issue Letters of Credit to be
terminated forthwith, whereupon such Commitments and the commitment to issue
Letters of Credit shall immediately terminate; and (ii) by notice of default to
the Borrower, declare the Loans (with accrued interest thereon) and all other
Obligations under this Agreement and the Notes to be due and payable forthwith,
whereupon (x) the same shall immediately become due and payable and (y) to the
extent any Letters of Credit are then outstanding, the Borrower shall make a
Cash Collateral Deposit in an amount equal to the aggregate Letter of Credit
Amount. In all cases, with the consent of the Majority Lenders, the Agent may
enforce any or all of the Liens and security interests and other rights and
remedies created pursuant to any Loan Document or available at law or in equity.
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived by the Borrower.
SECTION 8. THE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and appoints
Union Bank of California, N.A., as Agent for such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes Union
Bank of California, N.A., as the Agent for such Lender, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Agent by the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental thereto. Each
Lender hereby appoints and authorizes each Co-Arranger and the
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Syndication Agent and Documentation Agent to act as its agent under and in
accordance with the terms of this Agreement. The obligations of the Co-Arrangers
and the Syndication Agent hereunder shall terminate upon completion of the
initial syndication of the Commitments. The Documentation Agent shall have no
obligations hereunder after the Closing Date. Notwithstanding any provision to
the contrary elsewhere in this Agreement, none of the Agent, the Syndication
Agent, the Documentation Agent or any Co-Arranger (each, a "Facility Agent" and
collectively the "Facility Agents") shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against any Facility Agent.
8.2 Delegation of Duties. The Facility Agents may execute any of their
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Facility Agent shall be responsible for
the negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
8.3 Exculpatory Provisions. No Facility Agent, nor any of such Facility
Agent's officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower, any
Subsidiary or any other Obligor or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by any Facility Agent
under or in connection with, this Agreement or any other Loan Document or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or the Notes or any other Loan Document or for any failure of
the Borrower, any Subsidiary or any other Obligor to perform its obligations
hereunder or thereunder. No Facility Agent shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower, any
Subsidiary or any other Obligor.
8.4 Reliance by the Agent. The Facility Agents shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or
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teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), the Accountants and independent
accountants and other experts selected by the Facility Agents. The Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority
Lenders, the Majority Revolving Loan Lenders or all Lenders, as it deems
appropriate, or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense (except those incurred solely as a
result of the Agent's gross negligence or willful misconduct) which may be
incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the Notes and the other Loan Documents in
accordance with a request of the Majority Lenders, the Majority Revolving Loan
Lenders or all Lenders, as may be required, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Notes.
8.5 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default hereunder unless the Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a "notice of default".
In the event that the Agent receives such a notice, the Agent shall give notice
thereof to the Lenders. The Agent shall take such action with respect to such
Default as shall be reasonably directed by the Majority Lenders, the Majority
Revolving Loan Lenders, or all Lenders as appropriate; provided that unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable in the best interests of the
Lenders or as the Agent shall believe necessary to protect the Lenders'
interests in the Collateral or the Guarantor Collateral.
8.6 Non-Reliance on the Agent and Other Lenders. Each Lender expressly
acknowledges that no Facility Agent, nor any of such Facility Agent's officers,
directors, partners, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by any Facility Agent
hereafter taken, including any review of the affairs of the Borrower, any
Subsidiary or any other Obligor, shall be deemed to constitute any
representation or warranty by
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such Facility Agent to any Lender. Each Lender represents to each Facility Agent
that it has, independently and without reliance upon such Facility Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower, any Subsidiary and the other Obligors and made its own decision to
make its Loans, and participate in Letters of Credit, hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Facility Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower, its Subsidiaries and the other Obligors. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Agent hereunder, no Facility Agent shall have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrower, any Subsidiary or any other Obligor which may
come into the possession of such Facility Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify each Facility Agent
in its capacity as such (to the extent not reimbursed by the Borrower, its
Subsidiaries or the other Obligors and without limiting the obligation of such
Persons to do so), ratably according to the respective amounts of their
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs (including, without
limitation, the allocated cost of internal counsel), expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against such Facility Agent, in its capacity as a Facility Agent, but
not as a Lender hereunder, in any way relating to or arising out of this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by such Facility Agent under or in connection
with any of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent they arise from the gross negligence or willful misconduct of the party
to be indemnified. The agreements in this Section shall
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survive the payment of the Notes and all other amounts payable hereunder and the
expiration of the Letters of Credit.
8.8 The Facility Agents in Their Individual Capacities. The Facility
Agents and their Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower, any Subsidiary and
the other Obligors as though the Facility Agents were not the Facility Agents
hereunder and under the other Loan Documents. With respect to the Agent, the
Loans made or renewed and the Letters of Credit issued or participated in by
such Facility Agent, and any Note issued to such Facility Agent shall have the
same rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not a Facility Agent, and the
terms "Lender" and "Lenders" shall include each Agent in its individual
capacity.
8.9 Successor Agent. The Agent may resign as Agent upon 30 days' notice
to the Lenders. If the Agent shall resign as Agent under this Agreement and the
other Loan Documents, then the Majority Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent (so long as no
Default has occurred and is continuing) shall be approved by the Borrower (which
consent shall not be unreasonably withheld), whereupon such successor agent
shall succeed to the rights, powers and duties of the Agent and the term "Agent"
shall mean such successor agent, effective upon its appointment, and the former
Agent's rights, powers and duties as Agent shall be terminated, without any
other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Notes. After any retiring
Agent's resignation as Agent, the provisions of this Section shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement and the other Loan Documents. Further, if the Agent no
longer has any Loans, Letter of Credit participations or Commitments hereunder,
the Agent shall immediately resign and shall be replaced, and have the benefits,
as set forth in this Section 8.9. In addition, after the replacement of an Agent
hereunder, the retiring Agent shall remain a party hereto and shall continue to
have all the rights and obligations of an Agent under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
8.10 Collateral Documents. Anything contained in any of the Loan
Documents to the contrary notwithstanding, the Borrower, each Facility Agent and
each Lender hereby agree that (a) no Lender shall have any right individually to
realize upon any of the Collateral or Guarantor Collateral under any Loan
Document or to enforce any Guarantee, it being understood and agreed that all
powers, rights and remedies under the Collateral Documents and Guarantor
Collateral Documents and the Guarantees may be
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exercised solely by the Agent for the benefit of the Lenders in accordance with
the terms thereof, and (b) in the event of a foreclosure by the Agent on any of
the Collateral or Guarantor Collateral pursuant to a public or private sale, the
Agent or any Lender may be the purchaser of any or all of such Collateral or
Guarantor Collateral at any such sale and the Agent, as agent for and
representative of the Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless the Majority Lenders shall otherwise
agree in writing) shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Collateral or Guarantor Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price for
any such collateral payable by the Agent at such sale.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Except as otherwise expressly provided in
this Agreement, any provision of the Loan Documents may be modified or
supplemented only by an instrument in writing signed by the Borrower, the Agent
and the Majority Lenders, or by the Borrower and the Agent acting with the
consent of the Majority Lenders, and any provision of any Loan Document may be
waived by the Majority Lenders or by the Agent acting with the consent of the
Majority Lenders; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) (a) reduce the amount or extend the
maturity of any Note or any installment due thereon, or reduce the rate or
extend the time of payment of interest thereon, or reduce the amount or extend
the time of payment of any fee, indemnity or reimbursement payable to any Lender
hereunder, or change the amount of any Lender's Commitment, or amend, modify or
waive any provision of Section 2.4 or 2.5, in each case without the written
consent of the Lender affected thereby; or (b) amend, modify or waive any
provision of this Section 9.1 or reduce the percentage specified in or otherwise
modify the definition of Majority Lenders or Majority Revolving Loan Lenders, or
consent to the assignment or transfer by any Obligor of any of its rights and
obligations under this Agreement and the other Loan Documents (except as
permitted under Section 6.4); or (c) release any Obligor from any liability
under its respective Loan Documents; or (d) release any material portion of the
Collateral or any material portion of the Guarantor Collateral, except for any
Asset Disposition or release of Lien permitted by this Agreement or any other
Loan Document; or (e) amend, modify or waive, directly or indirectly, any of the
provisions of Section 2.1(h), 2.2(f) or 2.11; or (f) amend, modify or waive any
provision of this Agreement requiring the consent or approval of all Lenders, in
each case set forth in clauses (i)(b) through (i)(f) above without the written
consent of all the Lenders; or (ii) amend, modify or waive any provision
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of Section 4.2 with respect to the making of a Revolving Loan, or reduce the
percentage specified in, or otherwise modify the definition of, Majority
Revolving Loan Lenders, without the written consent of the Majority Revolving
Loan Lenders; or (iii) amend, modify or waive any provision of Section 8 without
the written consent of the Agent, Syndication Agent, Documentation Agent or any
Co-Arranger existing at such time, or any provision affecting the rights and
duties of the Agent as the issuer of Letters of Credit without the consent of
the then Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the other Obligors, the Lenders, the Agent, each other
Facility Agent and all future holders of the Notes. In the case of any waiver,
the Borrower, the other Obligors, the Lenders, and each other Facility Agent
shall be restored to their former position and rights hereunder and under the
outstanding Notes and any other Loan Documents, and any Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default, or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands or other communications
to or upon the respective parties hereto to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or 3 days
after being deposited in the United States mail, certified and postage prepaid
and return receipt requested, or, in the case of telecopy notice, when received,
in each case addressed as follows in the case of the Borrower and the Agent, and
as set forth on the signature pages hereto, or in the Assignment and Acceptance
pursuant to which a Person becomes a party hereto, in the case of the Lenders,
or to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes:
The Borrower: Classic Cable, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Seach
Telecopy: (000) 000-0000
The Agent: Union Bank of California, N.A
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Communications/Media Division
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Agent or the Lenders
pursuant to Section 2.1, 2.2, 2.3, 2.4 or 2.6 shall not be effective until
received.
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9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or any Lender, any right, remedy, power
or privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
9.4 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Notes.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Agent and each Co-Arranger for all its reasonable costs and
out-of-pocket expenses (including travel and other expenses incurred by it or
its agents in connection with performing due diligence with regard hereto)
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, syndication efforts (whether
completed before or after the Closing Date) in connection with this Agreement
and the reasonable fees and disbursements of counsel to each Facility Agent, (b)
after the occurrence and during the continuance of a Default, to pay or
reimburse the Agent and each Lender for all its reasonable costs and
out-of-pocket expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the Notes, the other Loan
Documents and any such other documents or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or of any insolvency or bankruptcy proceeding, including,
without limitation, reasonable legal fees and disbursements of counsel to the
Agent and each Lender (including the allocated costs of internal counsel to the
Agent and the Lenders which costs are not in duplication of any costs of outside
counsel to the Agent and each Lender), (c) to pay, and indemnify and hold
harmless each Lender and each Facility Agent from any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
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in respect of, this Agreement, the Notes, the other Loan Documents and any such
other documents and (d) to pay, and indemnify and hold harmless each Lender and
each Facility Agent and the officers, partners, directors, employees, agents and
affiliates of any Facility Agent or Lender (collectively "Indemnitees") from and
against, any and all Indemnified Liabilities, provided, that the Borrower shall
have no obligation hereunder to any Facility Agent or any Lender with respect to
Indemnified Liabilities arising from the gross negligence or willful misconduct
of any Facility Agent or any Lender . As used herein, "Indemnified Liabilities"
means, collectively, any and all liabilities, obligations, losses, damages
(including natural resource damages), penalties, actions, judgments, suits,
claims (including environmental claims), costs (including the costs of any
investigation, study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove, remediate, clean up or
xxxxx any activities relating to Hazardous Materials), expenses and
disbursements of any kind or nature whatsoever (including the reasonable fees
and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations
(including securities and commercial laws, statutes, rules or regulations and
environmental laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of this Agreement or the
other Loan Documents or the Acquisition Agreement or the transactions
contemplated hereby or thereby (including Lenders' agreement to make the Loans
hereunder or the use or intended use of the proceeds thereof or the issuance of
Letters of Credit hereunder or the use or intended use of any thereof, or any
enforcement of any of the Loan Documents (including any sale of, collection
from, or other realization upon any of the Collateral or the Guarantor
Collateral or the enforcement of the Guarantees)). (To the extent that the
undertakings to defend, indemnify, pay and hold harmless set forth in this
Section 9.5 may be unenforceable in whole or in part because they are violative
of any law or public policy, the Borrower shall contribute the maximum portion
that it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of
them.) The agreements in this Section shall survive repayment of the Notes and
all other amounts payable hereunder.
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9.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrower may not assign,
transfer or delegate any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking or
finance business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Letter of Credit participated in by such Lender,
any Note held by such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents; provided
that the holder of any such participation, other than an Affiliate of such
Lender, shall not be entitled to require such Lender to take or omit to take any
action hereunder except action directly affecting the extension of the maturity
of any portion of the principal amount of a Loan or Commitment, the expiration
of a Letter of Credit or any portion of interest or fees related thereto
allocated to such participation or a reduction of the principal amount or
principal payment amount of or the rate of interest payable on the Loans or any
fees related thereto or reduction of the amount to be reimbursed under any
Letter of Credit, or a release of any Obligor or any substantial portion of the
Collateral or the Guarantor Collateral or any increase in participation amounts.
In the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Note and the participant in any such Letter of Credit for all purposes
under this Agreement and the other Loan Documents, and the Borrower and the
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the other
Loan Documents. The Borrower agrees that if amounts outstanding under this
Agreement and the Notes are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement or any Note, provided that such
Participant shall only be entitled to such right of setoff if it shall have
agreed in the agreement pursuant to which it shall have acquired its
participating interest to share with the Lenders the proceeds
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thereof as provided in Section 9.7. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15
with respect to its participation in the Commitments and the Loans and the
Letters of Credit outstanding from time to time; provided, that no Participant
shall be entitled to receive any greater amount pursuant to such Sections than
the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to any of its
Affiliates or to any Lender, any Affiliate thereof or to one or more additional
lenders or financial institutions, which additional lenders shall be subject to
the consent of the Borrower, such consent not to be unreasonably withheld and
not to be required if a Default has occurred and is continuing ("Purchasing
Lenders") all or any part of its rights and obligations under this Agreement,
the Notes and the other Loan Documents pursuant to an Assignment and Acceptance
executed by such Purchasing Lender and such transferor Lender and delivered to
the Agent for its acceptance and recording in the Register (as defined in (d)
below), provided, that (i) any such sale must result in the Purchasing Lender
having at least $5,000,000 in aggregate amount of obligations under this
Agreement, the Notes and the other Loan Documents and (ii) each such assignment
by a Lender of its Revolving Loans, Revolving Note, Revolving Commitment or its
participation in Letters of Credit shall be in such manner so that the same
portion of its Revolving Loans, Revolving Note, Revolving Commitment and its
participation in Letters of Credit is assigned to the respective assignee. Upon
such execution, delivery, acceptance and recording, from and after the transfer
effective date determined pursuant to such Assignment and Acceptance, (x) the
Purchasing Lender thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the transferor Lender
thereunder shall, to the extent of such assigned portion and as provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
and the other Loan Documents (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of a transferor Lender's rights and
obligations under this Agreement, such transferor Lender shall cease to be a
party hereto). Such Assignment and Acceptance shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender and the resulting adjustment of Commitment
Percentages arising from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such transferor Lender under this
Agreement, the Notes and the other Loan Documents. On or prior
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to the transfer effective date determined pursuant to such Assignment and
Acceptance, the Borrower, at its own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note or Notes a new Note or Notes to the
order of such Purchasing Lender in an amount equal to the Commitments assumed by
it pursuant to such Assignment and Acceptance, and if the transferor Lender has
retained a Commitment hereunder, new Notes to the order of the transferor Lender
in an amount equal to the Commitments retained by it hereunder. Such new Notes
shall be dated the Closing Date and shall otherwise be in the form of the Notes
replaced thereby. The Notes surrendered by the transferor Lender shall be
returned by the Agent to the Borrower marked "canceled."
(d) The Agent shall maintain at its address referred to in Section 9.2
a copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amount of the Loans owing to, and, if
applicable, the Letters of Credit participated in by, each Lender from time to
time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as the owner of the Loans and the
participant in the Letters of Credit, if applicable, recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed in
accordance with the terms hereof, together with payment to the Agent by the
Purchasing Lender (except in the case of a Lender assigning to its Affiliate and
assignments made by Xxxxxxx Xxxxx Credit Partners L.P. during the first 90 days
following the Closing Date) of a registration and processing fee of $2,500, the
Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register.
(f) At the request of any Lender that is not a U.S. Person and is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, the Borrower
shall cause the Agent to maintain a register (the "Tax Register") on which it
enters the name of such Lender as the registered owner of each Registered Loan
held by such Lender. A Registered Loan (and the Registered Note, if any,
evidencing the same) may be assigned or otherwise transferred in whole or in
part by registration of such assignment or transfer on the Tax Register (and
each Registered Note shall expressly so provide). Any assignment or transfer of
all or part of such Loan (and the Registered Note, if any, evidencing the same)
may be effected by registration of such assignment or transfer on the Tax
Register, together with the surrender of the Registered Note,
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if any, evidencing the same duly endorsed by (or accompanied by a written
instrument of assignment or transfer duly executed by) the holder of such
Registered Note, whereupon, at the request of the designated assignee(s) or
transferee(s), one or more new Registered Notes in the same aggregate principal
amount shall be issued to the designated assignee(s) or transferee(s). Prior to
the registration of assignment or transfer of any Registered Loan (and the
Registered Note, if any, evidencing the same), the Borrower and the Agent shall
treat the Person in whose name such Loan (and the Registered Note, if any,
evidencing the same) is registered as the owner thereof for the purpose of
receiving all payments thereon and for all other purposes, notwithstanding
notice to the contrary. The Tax Register shall be available for inspection by
the Borrower and any Lender that is a Registered Holder at any reasonable time
upon reasonable prior notice.
(g) The Borrower authorizes each Lender to disclose to any Participant
or Purchasing Lender (each, a "Transferee") and any prospective Transferee any
and all financial information in such Lender's possession concerning the
Borrower, its Subsidiaries, CCI, and their Affiliates which has been delivered
to such Lender by or on behalf of the Borrower pursuant to this Agreement or any
other Loan Document or which has been delivered to such Lender by or on behalf
of the Borrower in connection with such Lender's credit evaluation of the
Borrower, its Subsidiaries, CCI, and their Affiliates prior to becoming a party
to this Agreement.
(h) Nothing herein shall prohibit any Lender from pledging or assigning
any of its rights under its Notes, or, if applicable, its participation in any
Letter of Credit, to any Federal Reserve Bank in accordance with applicable law.
9.7 Adjustments; Set-Off.
(a) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of its Loans, its participations in Letters of Credit, or
interest thereon, or fees, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 7(g), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans, its participations in Letters of Credit,
or interest thereon, or fees, such benefitted Lender shall purchase for cash
from the other Lenders such portion of each such other Lender's Loans,
participations in Letters of Credit, or fees, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter
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recovered from such benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest. The Borrower agrees that each Lender so purchasing a portion
of another Lender's Loan or its participations in Letters of Credit may exercise
all rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
(b) In addition to any rights and remedies of the Lenders provided by
law, with the prior consent of the Majority Lenders, each Lender shall have the
right, exercisable upon the occurrence and during the continuance of an Event of
Default and acceleration of the Obligations pursuant to Section 7, without prior
notice to the Borrower, any such notice being expressly waived by the Borrower
to the extent permitted by applicable law, to set-off and appropriate and apply
against any such Obligations any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims in any currency, in each case whether direct or indirect,
absolute or contingent, matured or unmatured, at any time held or owing by such
Lender or any branch or agency thereof or bank controlling such Lender to or for
the credit or the account of the Borrower. Each Lender agrees promptly to notify
the Borrower after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery by telecopier of an executed counterpart of a signature
page to this Agreement shall be effective as delivery of an originally executed
counterpart of this Agreement.
9.9 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement represents the entire agreement of the
Borrower, the Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
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9.11 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
9.12 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Notes and the other Loan Documents;
(b) no Facility Agent, and no Lender has any fiduciary relationship to
the Borrower solely by virtue of any of the Loan Documents, and the relationship
pursuant to the Loan Documents between the Facility Agents and the Lenders, on
one hand, and the Borrower on the other hand, is solely that of creditor and
debtor; and
(c) no joint venture exists among the Lenders or among the Borrower, on
one hand and the Lenders, on the other hand.
9.13 Headings. Section headings herein are included for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
9.14 Copies of Certificates, Etc. Whenever the Borrower is required to
deliver notices, certificates, opinions, statements or other information
hereunder to the Agent for delivery to any Lender, it shall do so in such number
of copies as the Agent shall reasonably specify.
9.15 Treatment of Certain Information; Confidentiality.
(a) The Borrower acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Borrower or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Lender, or by one or more Subsidiaries or
affiliates of such Lender and the Borrower hereby authorizes each Lender to
share any information delivered to such Lender by the Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Lender to enter into this Agreement, to any such Subsidiary or affiliate,
it being understood that any such Subsidiary or affiliate receiving such
information shall be bound by the provisions of clause (b) below as if it were a
Lender hereunder. Such authorization shall survive the repayment of the
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Loans, the expiration of the Letters of Credit and the termination of the
Commitments.
(b) Each Lender and the Agent agrees (on behalf of itself and each of
its affiliates, directors, officers, employees and representatives) to use
reasonable precautions to keep confidential, in accordance with their customary
procedures for handling confidential information of the same nature and in
accordance with safe and sound banking practices, any non-public information
supplied to it by the Borrower pursuant to this Agreement that is identified by
the Borrower as being confidential at the time the same is delivered to the
Lenders or the Agent, provided that nothing herein shall limit the disclosure of
any such information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) to counsel for any of the Lenders or the Agent, (iii) to
bank examiners or other regulatory authorities, auditors or accountants, (iv) to
the Agent or any other Lender, (v) in connection with any litigation to which
any one or more of the Lenders or the Agent is a party, (vi) to a subsidiary or
affiliate of such Lender as provided in clause (a) above or (vii) to any
assignee or participant (or prospective assignee or participant), and provided
further that in no event shall any Lender or the Agent be obligated or required
to return any materials furnished by the Borrower.
9.16 Consent to Jurisdiction. The Borrower, to the extent permitted by
applicable law, hereby irrevocably submits to the non-exclusive general
jurisdiction of the courts of the State of California, the courts of the United
States of America for the Central District of California and appellate courts
from any thereof in any legal action or proceeding arising out of or relating to
this agreement or any other Loan Document, and the borrower hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such California or federal court. The Borrower hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum for the maintenance of such action or proceeding and any
objection to venue of such action or proceeding. Nothing in this Section shall
affect the right of the Agent to serve legal process in any manner permitted by
law or affect the right of the Agent to bring any action or proceeding against
the Borrower or its property in the courts of any other jurisdictions.
9.17 WAIVER OF JURY TRIAL. THE BORROWER, EACH FACILITY AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH AND FOR ANY COUNTERCLAIM
THEREIN.
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9.18 Interest Rates.
(a) It is the intention of the parties hereto that the Loans made
hereunder shall conform strictly to applicable usury laws. Accordingly, none of
the terms and provisions contained in this Agreement or any of the other Loan
Documents shall ever be construed to create a contract to pay interest to the
Lenders for the use, forbearance or detention of money at a rate in excess of
the highest lawful rate applicable (the "Maximum Lawful Rate"), and that, for
purposes of this Section 9.16, "interest" shall include the aggregate of all
charges or other consideration which constitute interest under applicable laws
(whether or not denominated as interest) and are contracted for, taken,
reserved, charged or received under any of this Agreement or the other Loan
Documents or otherwise in connection with the transactions contemplated by this
Agreement and the other Loan Documents. If as a result of prepayment,
acceleration of maturity or otherwise, the effective rate of interest which
would otherwise be payable to any Lender under this Agreement or any other Loan
Document would exceed the Maximum Lawful Rate for the period during which the
principal amount of any Loan was outstanding, or if any Lender shall receive
moneys or other consideration that are deemed to constitute interest that would
increase the effective rate of interest payable by the Borrower to such Lender
under this Agreement or any other Loan Document to a rate in excess of the
Maximum Lawful Rate for the period during which the principal amount of any Loan
was outstanding, then (i) the amount of interest that would otherwise be payable
by the Borrower to such Lender under this Agreement and the other Loan Documents
shall be reduced to the Maximum Lawful Rate, and (ii) any interest paid by the
Borrower to such Lender in excess of the Maximum Lawful Rate shall be credited
by such Lender as an optional prepayment of the Loans (to be applied to the
principal of the Loans of such Lender in the order specified in Section 2.5(f),
provided that such amount shall not be applied to reduce such Lender's Revolving
Loan Commitment, if any) and, thereafter, shall be returned to the Borrower. All
calculations of the rate or amount of interest contracted for, taken, reserved,
charged or received by any Lender under any of this Agreement and the other Loan
Documents that are made for the purpose of determining whether such rate or
amount exceeds the Maximum Lawful Rate shall be made, to the extent permitted by
applicable law, by amortizing, prorating, allocating and spreading during the
full stated term of all of the Loans owed to such Lender.
(b) If at any time and from time to time (i) the amount of interest
payable to any Lender on any date would otherwise exceed the Maximum Lawful
Rate, the amount of interest payable to such Lender shall be limited to the
Maximum Lawful Rate pursuant to paragraph (a) above and (ii) in respect of any
subsequent interest computation period, the amount of interest otherwise payable
to such Lender would be less than the amount of interest
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payable to such Lender computed at the Maximum Lawful Rate, then the amount of
interest payable in respect of such subsequent computation period shall be
computed at the Maximum Lawful Rate until the earlier to occur of (x) the date
upon which the total amount of interest payable to such Lender shall equal the
total amount of interest that would have been payable to such Lender if the
total amount of interest had been computed without giving effect to paragraph
(a) above, or (y) payment in full of all Loans held by such Lender.
(c) Without limiting the application of Section 9.16 hereof, insofar as
the provisions of Article 5069-10.001 et seq., Title 79 of the Revised Civil
Statutes of Texas, 1925, as amended, are deemed applicable to the determination
of the Maximum Lawful Rate with respect to any of the Loans, the indicated rate
ceiling computed from time to time pursuant to Section (a) of such Article shall
apply to such Loans; provided that to the extent permitted by such Article, any
Lender may from time to time by notice to the Borrower revise the election of
such interest rate ceiling as such ceiling affects the then current or future
balances of the Loans and other obligations held by such Lender.
(d) Without limiting the application of Section 9.16, the provisions of
Chapter 342, Chapter 343 and Chapter 346 of the Texas Finance Code, as amended
shall not apply to this Agreement, the other Loan Documents or the transactions
contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER
CLASSIC CABLE, INC.
By: /s/ J. XXXXXXX XXXXXXX
------------------------------
Name: J. Xxxxxxx Xxxxxxx
----------------------------
Title: Chief Executive Officer
---------------------------
AGENT
UNION BANK OF CALIFORNIA, N.A.,
as Agent
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Title: Assistant Vice President
---------------------------
LENDERS
XXXXXXX SACHS CREDIT PARTNERS L.P., as a
Lender
By: /s/ XXXX XXXXX
------------------------------
Name: Xxxx Xxxxx
----------------------------
Title: Authorized Signatory
---------------------------
Address for Notices
c/o GOLDMAN, XXXXX & CO.
00 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
114
c/o GOLDMAN, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Approved Lending Offices
Applicable Lending Office for Base Rate
Loans:
00 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Applicable Lending Office for LIBOR
Loans:
00 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10004
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Title: Assistant Vice President
---------------------------
Address for Notices
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
115
Approved Lending Offices
Applicable Lending Office for Base
Rate Loans:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Applicable Lending Office for LIBOR
Loans:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Applicable Lending Office for
Participations in Letters of
Credit:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
