Exhibit 10.4
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CREDIT AGREEMENT
among
SUSQUEHANNA MEDIA CO.
THE LENDERS PARTY TO THIS CREDIT AGREEMENT, and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent
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WACHOVIA CAPITAL MARKETS, LLC, as Lead Arranger
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Dated as of February 20, 2004
TABLE OF CONTENTS
PAGE
BACKGROUND OF AGREEMENT..........................................................................................1
ARTICLE 1 DEFINITIONS................................................................................2
1.1 Defined Terms..................................................................................2
1.2 Terms Generally...............................................................................21
1.3. Accounting Terms; Changes in GAAP.................................................................22
ARTICLE 2 THE LOANS.................................................................................22
2.1 Revolving Credit Loans........................................................................22
2.2 Swing Loans...................................................................................24
2.3 Term Loans....................................................................................26
2.4 Lenders' Obligations Several..................................................................33
2.5 Notes; Registration...........................................................................33
2.6 Borrowing Notice..............................................................................34
2.7 Fees to Lenders...............................................................................35
2.8 Interest......................................................................................36
2.9 Purpose.......................................................................................44
2.10 Additional Provisions concerning Prepayments and Failure to Borrow............................44
2.11 [Intentionally Omitted.]......................................................................44
2.12 Mitigation Obligations; Replacement of Lenders................................................45
ARTICLE 3 MECHANICS OF PAYMENTS; TAX FORMS..........................................................46
3.1 Company Payment...............................................................................46
3.2 Lender Required Payment.......................................................................46
3.3 Company Required Payment......................................................................47
3.4 Tax Forms.....................................................................................47
3.5 Taxes.........................................................................................48
ARTICLE 4 LETTERS OF CREDIT.........................................................................50
4.1 Letters of Credit.............................................................................50
ARTICLE 5 CONDITIONS TO FUNDINGS AND ISSUANCE OF LETTERS OF CREDIT..................................53
5.1 Conditions to Initial Funding.................................................................53
5.2 Requirements for Each Loan/Letter of Credit...................................................57
ARTICLE 6 REPORTING REQUIREMENTS AND NOTICES........................................................58
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6.1 Financial Data and Reporting Requirements; Notice of Certain Events...........................58
6.2 Notice of Defaults, Disputes and Other Matters................................................61
6.3 The ESOP and ERISA Matters....................................................................63
6.4 Miscellaneous.................................................................................64
6.5 Disclosure....................................................................................65
ARTICLE 7 FINANCIAL COVENANTS.......................................................................65
7.1 Interest Coverage Ratio.......................................................................65
7.2 Consolidated Total Leverage Ratio.............................................................65
7.3 Consolidated Senior Leverage Ratio............................................................66
7.4 Fixed Charge Coverage Ratio...................................................................66
7.5 Additional Provisions Respecting Calculation of Financial Covenants...........................66
ARTICLE 8 BUSINESS COVENANTS........................................................................67
8.1 Indebtedness..................................................................................67
8.2 Liens.........................................................................................68
8.3 Investments, Loans, Acquisitions, Etc.........................................................70
8.4 Restricted Payments...........................................................................73
8.5 Sale-Leasebacks...............................................................................73
8.6 Transactions with Shareholders and Affiliates.................................................73
8.7 Mergers and Dispositions......................................................................74
8.8 Management Fees...............................................................................77
8.9 Existence.....................................................................................78
8.10 Compliance with Law...........................................................................78
8.11 Payment of Taxes and Claims...................................................................79
8.12 Tax Consolidation.............................................................................79
8.13 Compliance with ERISA.........................................................................79
8.14 Matters Relating to the ESOP..................................................................80
8.15 Insurance.....................................................................................80
8.16 Maintenance of Properties.....................................................................81
8.17 Maintenance of Records; Fiscal Year...........................................................81
8.18 Inspection....................................................................................81
8.19 Exchange of Notes.............................................................................82
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TABLE OF CONTENTS
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8.20 Other Agreements..............................................................................82
8.21 Further Assurances............................................................................82
8.22 Consistent Action - Voting....................................................................82
8.23 Type of Business..............................................................................82
8.24 Control of Business...........................................................................82
8.25 Shareholders..................................................................................83
8.26 Change in Documents; New Documents............................................................83
8.27 Payment of Indebtedness; Subordination........................................................84
8.28 [Intentionally omitted].......................................................................84
8.29 Compliance with Federal Reserve Regulations...................................................84
8.30 Filings.......................................................................................85
8.31 Limitations on Certain Restrictive Provisions.................................................85
8.32 Interest Rate Protection......................................................................85
8.33 Environmental Matters.........................................................................85
8.34 Corporate Separateness........................................................................86
ARTICLE 9 EVENTS OF DEFAULT.........................................................................86
9.1 Events of Default.............................................................................86
9.2 Acceleration; Remedies........................................................................90
9.3 Deposit Accounts..............................................................................92
ARTICLE 10 REPRESENTATIONS AND WARRANTIES............................................................92
10.1 Status........................................................................................92
10.2 Power and Authority...........................................................................94
10.3 No Violation of Agreements....................................................................94
10.4 Recording, Enforceability and Consent; Validity of Security Interest..........................94
10.5 Litigation; Compliance with Laws..............................................................95
10.6 No Burdensome Agreements......................................................................95
10.7 Condition of Property; Agreements.............................................................95
10.8 Fees..........................................................................................95
10.9 Licenses......................................................................................95
10.10 Title to Properties; Liens....................................................................96
10.11 Patents, Trademarks, Etc......................................................................96
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10.12 Names.........................................................................................96
10.13 Management Agreement..........................................................................96
10.14 Financial Statements and Projections..........................................................96
10.15 Changes.......................................................................................97
10.16 Tax Returns and Payments......................................................................97
10.17 Indebtedness..................................................................................97
10.18 Federal Reserve Regulations...................................................................97
10.19 Investment Company Act........................................................................98
10.20 Public Utility Holding Company Act............................................................98
10.21 Compliance with ERISA and ESOP Matters........................................................98
10.22 Accuracy and Completeness of Disclosure......................................................100
10.23 Adequacy of Capital..........................................................................100
10.24 Absence of Restrictive Provisions............................................................100
10.25 Environmental Compliance.....................................................................101
10.26 Solvency.....................................................................................102
10.27 Subordination................................................................................102
ARTICLE 11 MISCELLANEOUS............................................................................102
11.1 Notices; Effectiveness; Electronic Communication.............................................102
11.2 Duration; Survival...........................................................................103
11.3 No Implied Waiver............................................................................103
11.4 Entire Agreement and Amendments..............................................................104
11.5 Successors and Assigns.......................................................................104
11.6 Calculations and Financial Data..............................................................107
11.7 Descriptive Headings.........................................................................107
11.8 Governing Law; Jurisdiction; Etc.............................................................107
11.9 WAIVER OF JURY TRIAL.........................................................................108
11.10 Holidays.....................................................................................108
11.11 Counterparts; Integration; Effectiveness; Electronic Execution...............................108
11.12 Maximum Lawful Interest Rate.................................................................109
11.13 Set-off......................................................................................109
11.14 Severability.................................................................................109
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11.15 Expenses; Indemnity; Damage Waiver...........................................................110
11.16 Treatment of Certain Information; Confidentiality............................................111
ARTICLE 12 AGENT....................................................................................112
12.1 Appointment and Authority....................................................................112
12.2 Rights as a Lender...........................................................................112
12.3 Exculpatory Provisions.......................................................................112
12.4 Reliance by Agent............................................................................113
12.5 Delegation of Duties.........................................................................114
12.6 Resignation of Agent.........................................................................114
12.7 Non-Reliance on Agent and Other Lenders......................................................114
12.8 No Other Duties, etc.........................................................................115
12.9 Expenses.....................................................................................115
12.10 Investigation by Lenders.....................................................................115
12.11 Amendments, Waivers and Consents.............................................................115
12.12 Action Upon Defaults.........................................................................117
12.13 Instructions.................................................................................117
12.14 Sharing of Payments by Lenders...............................................................117
12.15 Other Relationships..........................................................................118
LIST OF ADDENDA (EXHIBITS AND SCHEDULES).......................................................................135
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CREDIT AGREEMENT
This
CREDIT AGREEMENT (this "Agreement"), dated as of the 20th day of
February, 2004 and effective on the Effective Date (as defined below), is made
by and among WACHOVIA BANK, NATIONAL ASSOCIATION ("Wachovia"), individually, as
Issuing Bank and as Agent, the OTHER FINANCIAL INSTITUTIONS listed on the
signature pages to this Agreement, and
SUSQUEHANNA MEDIA CO., a Delaware
corporation (the "Company"). Wachovia, the financial institutions listed on the
signature pages to this Agreement and any other financial institutions which may
become parties to this Agreement from time to time, are sometimes collectively
referred to as the "Lenders" and individually as a "Lender." Wachovia, when
acting in its capacity as agent for the Lenders and Issuing Bank, or any
successor or assign that assumes that position pursuant to the terms hereof, is
hereinafter sometimes referred to as the "Agent." In connection with this
Agreement, WACHOVIA CAPITAL MARKETS, LLC has served as Lead Arranger.
BACKGROUND OF AGREEMENT
The Company is, through its subsidiaries, engaged primarily in the
radio broadcast and cable television businesses. The Company currently wishes to
refinance its existing indebtedness (which consists of a senior bank facility).
In connection therewith, it wishes to terminate and replace the maximum
aggregate principal amount of its existing bank facility of $450,000,000, with
$600,000,000 of Commitments under this Agreement, provide security therefor the
proceeds thereof to be used to refinance certain indebtedness, finance certain
acquisitions and for general corporate purposes. The obligations under this
Agreement are senior to those certain senior subordinated notes and constitute
"Designated Senior Indebtedness" within the meaning of the Senior Subordinated
Indentures (as defined below) relating to such notes.
The senior bank facility, which is provided for in this Agreement, is
to be guaranteed by the Company's subsidiaries and secured by the equity of the
Company owned by Susquehanna Pfaltzgraff Co. and the equity of its subsidiaries
owned by the Company or other subsidiaries of the Company as well as by the
material assets (other than real property) of those entities. Certain terms are
used in this Agreement as defined in Article 1 below.
NOW, THEREFORE, it is agreed:
ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings
specified in this Section unless the context otherwise requires. Defined terms
in this Agreement shall also mean in the singular number the plural and in the
plural the singular.
o Accepting Term C Lender: the meaning specified in
Subsection 2.3.8(d) (Commitment for Term C Loans).
o Accumulated Funding Deficiency: any accumulated
funding deficiency as defined in Section 302(a) of ERISA.
o Acquisition: the meaning specified in Subsection
8.3.3 (Acquisitions).
o Adjusted LIBOR: the meaning specified in Subsection
2.8.5 (Definition of Adjusted LIBOR).
o Administrative Questionnaire: an Administrative
Questionnaire in a form supplied by the Agent.
o Adverse Event: the meaning specified in Subsection
9.1.11 (FCC Licenses and Other Franchises).
o Affiliate: with reference to any Person, a spouse of
such Person, any relative (by blood, adoption or marriage) of such Person within
the third degree, any director, officer or employee of such Person, any other
Person of which such Person is a partner, member, trustee director, officer or
employee, and any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such Person. For purposes of
this definition "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean (i) the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise
or (ii) the beneficial ownership of 10% or more of the total voting power of the
Voting Stock (on a fully diluted basis) of such Person.
o Agent: the meaning specified in the preamble to this
Agreement.
o Agreement: this Agreement, as amended, modified or
supplemented from time to time.
o Applicable Margin: the meaning specified in
Subsection 2.8.2 (Applicable Margin).
o Applicable Percentage: with respect to any Lender,
the percentage of the total Commitments represented by such Lender's Commitment.
If the Commitments have terminated or expired, the Applicable Percentages shall
be determined based upon the Commitments most recently in effect, giving effect
to any assignments.
o Approved Fund: any Fund that is administered or
managed by (1) a Lender, (2) an Affiliate of a Lender or (3) an entity or an
Affiliate of an entity that administers or manages a Lender.
o Assignment and Assumption: an assignment and
assumption entered into by a Lender and an Eligible Assignee (with the consent
of any party whose consent is required by Section 11.5 (Successors and
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Assigns), and accepted by the Agent, in substantially the form of Exhibit M or
any other form approved by the Agent.
o Available Commitment: the meaning specified in
Subsection 2.1.2 (Available Commitment).
o Base Rate: the higher of (1) the rate of interest
publicly announced by the Agent from time to time at its principal office as its
prime commercial lending rate (which rate is not necessarily the lowest rate
charged by the Agent to its borrowers) and (2) the Federal Funds Rate plus
one-half of one percent (1/2%).
o Business Day: a day other than a Saturday, Sunday or
day on which commercial banks are required or permitted to close in
Philadelphia,
Pennsylvania, New York, New York or Charlotte, North Carolina.
o Capital Expenditures: expenditures for fixed or
capital assets determined in accordance with GAAP.
o Capital Lease: a lease with respect to which the
lessee is required to recognize the acquisition of an asset and the incurrence
of a liability in accordance with GAAP.
o Capital Lease Obligation: with respect to any Capital
Lease, the amount of the obligation of the lessee thereunder which would in
accordance with GAAP appear on a balance sheet of such lessee in respect of such
Capital Lease or otherwise be disclosed in a note to such balance sheet.
o CERCLA: the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time to time, and all
rules and regulations promulgated in connection therewith.
o Change in Law: the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of any
law, rule, regulation or treaty, (b) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any Governmental
Authority.
o Change of Control: (1) (A) the Permitted Holders
cease to be the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, in the aggregate or at least 51% of
the total voting power of the voting stock of the Company or (B) any "person"
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than one or more Permitted Holders, is or becomes the "beneficial owner" (except
that for purposes of this clause (B) such person shall be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 20% of the total voting power of
the voting stock of the Company (for purposes of this clause (1) the Permitted
Holders shall be deemed to beneficially own any voting stock of a corporation
held by any other corporation so long as the Permitted Holders beneficially own,
directly or indirectly, in the aggregate at least 80% of the voting power of the
voting stock of such other corporation);
(2) the Company merges with or into another Person or
sells or disposes of all or substantially all of its assets to any Person, or
any Person merges with the Company, in any such event pursuant to a transaction
in which the outstanding voting stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding voting stock of the Company is converted
into or exchanged for (i) voting stock (other than Disqualified Stock) of the
surviving or transferee corporation and/or (ii) cash, securities or other
property in an amount which could be paid by the Company as a Restricted Payment
under this Agreement and the Senior Subordinated Indentures and (B) immediately
after such transaction no person or group (other than the Permitted Holders) is
the beneficial owner of 20% or more of the voting power of the voting stock of
the surviving or transferee corporation on a fully diluted basis;
(3) during any period of two consecutive years,
individuals who at the beginning of such period constituted the board of
directors of the Company (together with any new directors whose election by
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such board of directors or whose nomination for election by the shareholders of
the Company was approved by a vote of 66 2/3% of the directors of the Company at
the time of such approval who were either directors at the beginning of such
period or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the board of directors then in
office; or
(4) the liquidation or dissolution of the Company.
o COBRA: the group health plan continuation coverage
requirements of Section 4980B of the Code and Part 6 of Subtitle B of Title I of
ERISA.
o Code: the Internal Revenue Code of 1986, as amended,
or its predecessor or successor, as applicable, and any Treasury regulations,
revenue rulings or technical information releases issued thereunder.
o Collateral: all property of any sort in which the
Company or any Subsidiary of the Company has granted, or purported to grant, a
security interest or other Lien pursuant to any of the Loan Documents.
o Comcast: collectively, Xxxxxxx York, Inc., a Delaware
corporation, and Comcast Cable Communications, LLC, a Delaware limited liability
company and the successor by merger to Xxxxxxx Communications, Inc.
o Comcast Agreement: an agreement dated November 6,
1992 by and among Comcast, Susquehanna Cable and certain Subsidiaries of
Susquehanna Cable as amended by a Modification Agreement dated as of March 24,
1993, a letter dated March 31, 1993, a Third Amendment dated May 17, 1993, a
Fourth Amendment dated November 30, 1993 and a Fifth Amendment dated April 22,
1999, and as may be further amended, from time to time, by such amendments as
shall have been approved by the Requisite Lenders or such other amendments as
are permitted by the terms of this Agreement. The term "Comcast Agreement" shall
also include the shareholders agreement entered into pursuant to section 8(g) of
the Comcast Agreement, provided that references in the Loan Documents to
particular paragraphs or sections of the Comcast Agreement shall not be
references to paragraphs and sections of such shareholders agreement.
o Comcast Programming Payments: payments made by
Susquehanna Cable and its Subsidiaries to Comcast to purchase cable television
programming pursuant to agreements with Comcast in effect from time to time.
o Comcast Subordination Agreement: the meaning
specified in paragraph (b) of Subsection 5.1.6 (Subordination Agreements).
o Commitment: the commitment of the Lenders to make
advances under this Agreement.
o Commitment Fee: the meaning specified in Subsection
2.7.1 (Commitment Fees).
o Commitment Fee Base: the meaning specified in
Subsection 2.7.1 (Commitment Fees).
o Company:
Susquehanna Media Co., a Delaware
corporation.
o Company Pledge: the meaning specified in paragraph
(b) of Subsection 5.1.5 (Pledge Agreements).
o Company Required Payment: the meaning specified in
Section 3.3 (Company Required Payment).
o Consolidated: with respect to any Person and any
specified Subsidiaries, refers to the consolidation of financial statements of
such Person and such Subsidiaries and of particular items in such financial
statements in accordance with GAAP.
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o Consolidated Net Worth: the total of the amounts
shown on the balance sheet of the Company and its Consolidated Subsidiaries, as
of the end of the most recent fiscal quarter of the Company ending at least 45
days prior to the taking of any action for the purpose of which the
determination is being made, as:
(1) the par or stated value of all
outstanding capital stock of the Company, plus
(2) paid-in capital or capital surplus
relating to such capital stock, plus
(3) any retained earnings or earned surplus
less (A) any accumulated deficit and (B) any amounts attributable to
Disqualified Stock.
o Consolidated Senior Leverage Ratio: the ratio, as
applicable, of
(1) Senior Debt, as at the last day of each fiscal
quarter, to EBITDA for the four fiscal quarters ended on such date or
(2) Senior Debt, as at the day Indebtedness is
incurred after giving effect to such Indebtedness (or as at the day another
specified transaction occurs after giving effect to such transactions), to
EBITDA for the four fiscal quarters ended on, or most recently prior to, such
date.
o Consolidated Total Leverage Ratio: the ratio, as
applicable, of
(1) Total Debt, as at the last day of each fiscal
quarter to EBITDA for the four fiscal quarters ended on such date, or
(2) Total Debt as at the day Indebtedness is
incurred, after giving effect to such Indebtedness (or as at the day another
specified transaction occurs after giving effect to such transactions), to
EBITDA for the four fiscal quarters ended on, or most recently prior to, such
date.
o Default Rate: the meaning specified in Subsection
2.8.8 (Default Rate).
o Designated Event: the meaning specified in Subsection
7.5 (Additional Provisions Respecting Calculation of Financial Covenants).
o Designated Period: the meaning specified in
Subsection 7.5 (Additional Provisions Respecting Calculation of Financial
Covenants).
o Disqualified Stock: means, with respect to any
Person, any capital stock which by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable):
(1) matures or is mandatorily redeemable for
any reason,
(2) is convertible or exchangeable for
Indebtedness or Disqualified Stock, or
(3) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to the first
anniversary of the stated maturity of the Notes.
o EBITDA: the sum of (1) the Consolidated Net Income of
the Company for a specified period, plus (2) the sum of the following to the
extent deducted in such computation of such Consolidated Net Income:
(a) depreciation expense;
(b) amortization expense;
(c) Interest Expense;
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(d) income tax provision;
(e) non-cash expense;
(f) ESOP Retirement Plan Expenses; and
(g) minority interests in Subsidiaries of the
Company,
minus interest income and non-cash income, plus any prepayment premium under or
in respect of the Senior Subordinated Notes.
For the purposes of calculating EBITDA for any period (each, a "Reference
Period"),
(x) if at any time during such Reference Period the
Company or any Subsidiary shall have made any disposition pursuant to Subsection
8.7.2 (c) or (d) (Sales and Other Dispositions) below, the EBITDA for such
Reference Period shall be reduced by an amount equal to the EBITDA (if positive)
attributable to the property that is the subject of such disposition for such
Reference Period or increased by an amount equal to the EBITDA (if negative)
attributable thereto for such Reference Period,
(y) if during such Reference Period the Company or
any Subsidiary shall have made an Acquisition pursuant to Subsection 8.3.3
(Acquisitions), EBITDA for such Reference Period shall be calculated after
giving pro forma effect thereto as if such Acquisition occurred on the first day
of such Reference Period, and
(z) if during such Reference Period any station is
subject to any local marketing agreement or time brokerage agreement entered
into in connection with any disposition permitted under Subsection 8.7.2(c) or
(d) (Sales and Other Dispositions), the EBITDA for such Reference Period shall
be reduced by an amount equal to the EBITDA (if positive) attributable to such
station or increased by an amount equal to the EBITDA (if negative) attributable
thereto for such Reference Period.
o Effective Date: the meaning specified in Section 5.1
(Conditions to Initial Funding).
o Eligible Assignee: means (1) a Lender, (2) an
Affiliate of a Lender, (3) an Approved Fund, and (4) any other Person (other
than a natural person) approved by (a) the Agent, (b) in the case of any
assignment of a Revolving Commitment, the Issuing Bank, and (c) unless an Event
of Default or Potential Event of Default has occurred and is continuing, the
Company (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Company or any of the Company's Affiliates or Subsidiaries.
o Employee Pension Plan: any Plan which (1) is
maintained by the Company, any of its Subsidiaries or any ERISA Affiliate and
(2) is subject to Part 3 of Subtitle B of Title I of ERISA.
o Environmental Laws: any national, state or local law
or regulation (including, without limitation, CERCLA and RCRA) enacted in
connection with or relating to the protection or regulation of the environment,
including, without limitation, those laws, statutes, and regulations regulating
the disposal, removal, production, storing, refining, handling, transferring,
processing, or transporting of Hazardous Substances, and any regulations issued
or promulgated in connection with such statutes by any governmental authority
and any orders, decrees or judgments issued by any court of competent
jurisdiction in connection with any of the foregoing.
o ERISA: the Employee Retirement Income Security Act of
1974, as amended, and any regulations issued thereunder by the Department of
Labor or PBGC.
o ERISA Affiliate: (1) any corporation included with
the Company in a controlled group of corporations within the meaning of Section
414(b) of the Code, (2) any trade or business (whether or not incorporated)
which is under common control with the Company within the meaning of Section
414(c) of the Code, and (3) any
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member of an affiliated service group of which the Company is a member within
the meaning of Section 414(m) of the Code.
o ESOP: an employee stock ownership plan set up by SPC
that complies with Section 401 of the Code and with the applicable provisions of
Section 409 of the Code.
o ESOP Compensation Expense: the expense related to
funding share allocations in the ESOP.
o ESOP Loan: the loan made on May 15, 1999 to SPC in
the amount of $116.9 million, the loan made to SPC on July 18, 2001 in the
amount of $14.6 million, and any other loan to SPC for purposes of funding the
ESOP permitted by this Agreement to effect the funding of the ESOP.
o ESOP Repurchase Payments: the expense related to
repurchase of shares allocated to individuals participating in the ESOP, whether
upon the retirement of such Persons or otherwise.
o ESOP Retirement Plan Expenses: for purposes of
calculating EBITDA for any period, the amount of ESOP Compensation Expense
during such period to the extent that such amount is no greater than the amount
of cash received by the Company from SPC as repayment of principal and interest
on the ESOP Loan during such period.
o ESOP Sharing Agreement: that certain ESOP sharing
agreement among the Company, its Subsidiaries, SPC and its other Subsidiaries
dated May 12, 1999 and as further amended on February 9, 2004.
o Eurodollar Business Day: a day on which the relevant
London international financial markets are open for the transaction of business
contemplated in this Agreement and which is also other than a Saturday, Sunday
or other day on which commercial banks are required or permitted to close in
Philadelphia,
Pennsylvania, New York, New York or Charlotte, North Carolina.
o Event of Default: the meaning specified in Section
9.1 (Events of Default).
o Excess Cash Flow: the excess of EBITDA for the
defined period over the sum of (1) scheduled principal payments (including
capital leases), (2) mandatory prepayments (other than mandatory prepayments
resulting from prior year excess prepayments) and permanent voluntary
prepayments, (3) Interest Expense, net of interest income, (4) Management Fees,
(5) cash taxes paid, including without limitation any tax distributions under
the Tax Sharing Agreement, (6) Capital Expenditures, and (7) Restricted
Payments.
o Excluded Taxes: with respect to the Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Company hereunder, (1) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (2) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Company is located and (3) in the case of
a Foreign Lender (other than an assignee pursuant to a request by the Company
under Section 2.12 (Mitigation Obligations; Replacement of Lenders), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new lending
office) or is attributable to such Foreign Lender's failure or inability (other
than as a result of a Change in Law) to comply with Subsection 3.5.5
(Taxes--Status of Lenders), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Company with
respect to such withholding tax pursuant to Subsection 3.5.1 (Taxes -Payments
Free of Taxes).
o Excluded Transactions: (1) agreements in existence on
or prior to the Effective Date, (2) the ESOP Loan, (3) payments of Management
Fees permitted hereunder, (4) payments provided for by the Tax Sharing
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Agreement, (5) SPC Expense Reimbursement, and (6) ESOP Compensation Expenses and
ESOP Repurchase Payments made in conformity with the ESOP Sharing Agreement.
o Existing Facilities: the meaning specified in
Subsection 5.1.8 (Repayment of Existing Indebtedness).
o Family of Funds: a group of Funds that invests in
bank loans and is managed by a common investment advisor or an affiliate thereof
or has a common principal underwriter and that has a common individual who is
designated to receive financial statements, waivers and amendments and other
notices under this Agreement.
o FCC: the Federal Communications Commission or any
governmental body succeeding to the functions of such commission.
o FCC License: any radio, microwave, or other
communications license, permit, certificate of compliance, franchise, approval
or authorization granted or issued by the FCC for control, ownership,
acquisition, construction or operation of a Permitted Business.
o Federal Funds Rate: for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next Business Day as so published on the next succeeding Business Day, and (b)
if such rate is not so published for any day, the Federal Funds Rate for such
day shall be the average rate charged to Agent on such day on such transactions
as determined by the Agent.
o Final Order: an action by the FCC, any PUC, court or
other governmental authority or other applicable state regulatory agency as to
which: (i) no request for stay of the action is pending, no such stay is in
effect, and, if any deadline for filing any such request is designated by
statute or regulation, it has passed; (ii) no petition for rehearing or
reconsideration or application for review or appeal of the action is pending and
the time for filing any such petition or application has passed; (iii) the FCC,
any PUC, court or other governmental authority or other state agency, as
applicable, does not have the action under reconsideration on its own motion and
the time for such reconsideration has passed; and (iv) no appeal to a court, or
request for stay by a court, of the action is pending or in effect, and, if any
deadline for filing any such appeal or request is designated by statute or rule,
it has passed.
o Financial Information: the meaning specified in
Section 6.5 (Disclosure).
o Fixed Charge Coverage Ratio: as of any date of
determination, the ratio of
(1) EBITDA for the four fiscal quarters ended on, or
most recently prior to the date of determination to
(2) the sum of (without duplication):
(a) Scheduled payments of long-term
Indebtedness of the Company and its
Subsidiaries, on a Consolidated basis
(excluding scheduled payments of
Indebtedness under the Existing Facilities),
(b) Interest Expense, net of interest
income,
(c) Capital Expenditures (which shall not
include Acquisitions but shall include
Capital Expenditures associated with
Acquisitions after the date of the
Acquisition),
-8-
(d) Restricted Payments (other than the
Restricted Payments relating to intercompany
payments referred to in clause (a) of
Section 8.4 (Restricted Payments)), and
(e) cash taxes paid, including without
limitation any tax distributions under the
Tax Sharing Agreement,
in each case made or incurred during the four (4) fiscal quarters ended on, or
most recently prior to, such date of determination.
o Franchise: a franchise, permit or license (including,
without limitation, an FCC License), designation or certificate granted by the
United States or any other country, territory or state or a city, town, county
or other municipality, PUC or any other regulatory authority pursuant to which a
Person has the right to own, control, acquire, construct or operate a Permitted
Business.
o Foreign Lender: any Lender that is organized under
the laws of a jurisdiction other than that in which the Company is resident for
tax purposes. For purposes of this definition, the United States of America,
each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
o Fronting Fees: the meaning specified in Subsection
4.1.5 (Fees).
o Fund: any Person (other than a natural person) that
is (or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
o GAAP: generally accepted accounting principles
consistently applied, which, as applied to the Company and its Subsidiaries
shall be consistent with those applied in the preparation of the financial
statements referred to in Subsection 5.1.12 (Financial Statements; Projections).
o Governmental Authority: the government of the United
States of America or any other nation, or of any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).
o Granting Lender: the meaning specified in Subsection
3.2 (Lender Required Payment).
o Guaranty: as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another Person, including,
but not limited to, any such obligation directly or indirectly guaranteed,
endorsed (otherwise than for collection or deposit in the ordinary course of
business) or discounted or sold with recourse by such Person, or in respect of
which such Person is otherwise directly or indirectly liable, including, but not
limited to, any such obligation in effect guaranteed by such Person through any
agreement (contingent or otherwise) to purchase, repurchase or otherwise acquire
such obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain the solvency or
any balance sheet or other financial condition of the obligor of such
obligation, or to make payment for any products, materials or supplies or for
any transportation or services regardless of the non-delivery or nonfurnishing
thereof, in any such case if the purpose or intent of such agreement is to
provide assurance that such obligation will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected against loss in respect thereof. No Guaranty shall
be permitted by this Agreement unless the maximum dollar amount of the
obligation being guaranteed is readily ascertainable by the terms of such
obligation or the agreement or instrument evidencing such Guaranty specifically
limits the dollar amount of the maximum exposure of the guarantor thereunder,
and the amount involved in any Guaranty made during any period shall be the
aggregate amount of the obligation guaranteed (or such lesser amount as to which
the maximum exposure of the guarantor shall have been specifically limited),
less any amount
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by which the guarantor may have been discharged with respect thereto (including
any discharge by way of a reduction in the amount of the obligation guaranteed).
o Guarantor: each direct and indirect Subsidiary of the
Company and each other Person that may become a guarantor under the Subsidiary
Suretyship from time to time.
o Hazardous Substances: any and all pollutants,
contaminants, toxic or hazardous wastes or any other substances that might pose
a hazard to health or safety, the removal of which may be required or the
generation, manufacture, refining, production, processing, treatment, storage,
handling, transportation, transfer, use, disposal, release, discharge, spillage,
seepage or filtration of which is or shall be restricted, prohibited or
penalized by any Environmental Law (including, without limitation, petroleum
products, asbestos, urea formaldehyde foam insulation and polychlorinated
biphenyls and substances defined as Hazardous Substances under CERCLA).
o Indebtedness: with respect to any Person (without
duplication):
(a) all indebtedness of such Person for borrowed
money;
(b) all obligations of such Person for the deferred
purchase price of capital assets or for any part of
the deferred purchase price of other property or
services which purchase price for other property or
services is due more than six months (or a longer
period of up to one year, if such terms are available
from suppliers in the ordinary course of business)
from the date of incurrence of the obligation in
respect thereof;
(c) all obligations of such Person evidenced by
notes, bonds (other than performance bonds),
debentures or other similar instruments;
(d) all indebtedness created or arising under any
conditional sale or other title retention agreement
with respect to property acquired by such Person
(even though the rights and remedies of the seller or
lender under such agreement in the event of default
are limited to repossession or sale of such property)
and all other indebtedness secured by a Lien on the
property or assets of such Person;
(e) all Capital Lease Obligations of such Person;
(f) all obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar
facilities;
(g) all obligations in respect of Disqualified Stock
or other obligations of such Person to purchase,
redeem, retire, defease or otherwise acquire for
value any capital stock of such Person or any
warrants, rights or options to acquire such capital
stock, which obligations shall be valued, in the case
of redeemable preferred stock, at the greater of its
voluntary or involuntary liquidation preference plus
accrued and unpaid dividends and, in the case of
other such obligations, at the amount that, in light
of all the facts and circumstances existing at the
time of determination, can reasonably be expected to
become payable;
(h) a Guaranty of such Person, provided that a
Guaranty shall not be considered Indebtedness if the
underlying obligation that is guaranteed is taken
into account in computing Consolidated Net Income of
the Company and its Subsidiaries (e.g., operating
leases of Subsidiaries guaranteed by the Company or
another Subsidiary);
(i) all Indebtedness referred to in clauses (a)
through (g) above secured by (or which the holder of
such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract
rights) owned by such Person, even though such Person
has not assumed or become liable for the payment of
such Indebtedness;
-10-
(j) all unfunded pension liabilities;
(k) all payments required by such Person under
non-compete agreements;
(l) all obligations in respect of Interest Rate
Protection Agreements; and
(m) all obligations of such Person that are the
functional equivalent of the Indebtedness referred to
in clauses (a) through (d) such as synthetic lease
obligations.
o Indemnified Taxes: Taxes other than Excluded Taxes.
o Indemnitees: the meaning specified in Section 11.15
(Expenses; Indemnity; Damage Waiver).
o Interest Coverage Ratio: as at any date of
determination, the ratio of (i) EBITDA to (ii) Interest Expense net of interest
income, in each case for the four fiscal quarters ended on, or most recently
prior to, such date of determination.
o Interest Expense: for any period, the sum of (1) the
amount of interest accrued on, or with respect to, Consolidated Indebtedness for
such period, including without limitation imputed interest on Capital Leases and
imputed or accreted interest in respect of deep discount or zero coupon
obligations, but excluding any prepayment premium under or in respect of the
Senior Subordinated Notes, plus (2) the net amount payable under all Interest
Rate Protection Agreements in respect of such period (or minus the net amount
receivable under Interest Rate Protection Agreements in respect of such period),
in each case excluding xxxx to market adjustments. For purposes of calculating
Interest Expense, it shall be assumed that any Guaranties constituting
Indebtedness will require payments of interest, if any, in the amounts as called
for in the underlying obligation which is the subject of the Guaranty.
o Interest Period: the meaning specified in paragraph
(a) of Subsection 2.8.4 (LIBOR Election).
o Interest Rate Protection Agreement: an interest rate
swap, cap or collar agreement or similar arrangement between any Person and a
financial institution providing for the transfer or mitigation of interest risks
either generally or under specific contingencies.
o Investment: as applied to any Person, any direct or
indirect purchase or other acquisition by such Person of stock or other
securities of any other Person, or any direct or indirect loan, advance (other
than advances to employees for moving and travel expenses in amounts which are
immaterial both individually and in the aggregate), or capital contribution by
such Person to any other Person, including all Indebtedness and accounts
receivable from such other Person which are not current assets or did not arise
from sales to such other Person in the ordinary course of business. For purposes
of this Agreement, as applied to the Company or any Subsidiary thereof, an
Investment shall include any purchase of a minority interest in any Subsidiary
of the Company regardless of how that purchase is structured including, without
limitation, a repurchase or redemption of shares that is expressly excluded from
the definition of "Restricted Payment."
o Issuing Bank: Wachovia so long as it is a Lender, or
if Wachovia is no longer a Lender, a Lender designated by the Company and
acceptable to the Agent.
o Lenders: each of the Persons that execute this
Agreement as a Lender (including, without limitation, the Swing Lender) together
with any other Persons which become parties to this Agreement as a Lender from
time to time.
o Lender's Interest: the meaning specified in Section
6.5 (Disclosure).
-11-
o Lender Required Payment: the meaning specified in
Section 3.2 (Lender Required Payment).
o Letters of Credit: letters of credit issued pursuant
to this Agreement.
o Letter of Credit Fees: the meaning specified in
Subsection 4.1.5 (Fees).
o Letter of Credit Sublimit: the meaning specified in
Subsection 4.1.1 (Commitment to Issue Letters of
Credit).
o Lien: as to any Person, any mortgage, lien, pledge,
adverse claim, charge, security interest or other encumbrance in or on, or any
interest or title of any vendor, lessor, lender or other Senior Secured Party to
or of such Person under any conditional sale or other title retention agreement
or Capital Lease with respect to, any property or asset of such Person.
o Loans: the amounts loaned to the Company pursuant to
this Agreement. Loans may be Revolving Loans, Swing Loans or Term Loans.
o Loan Documents: this Agreement, the Notes, the
Subsidiary Suretyship, the Pledge Agreements, the Subordination Agreements, the
Security Agreement and any and all agreements, documents and instruments
executed, delivered or filed pursuant to this Agreement, as the same may be
amended, modified or supplemented from time to time; in addition, solely for
purposes of the references to "Loan Documents" in the Subsidiary Suretyship, the
Subordination Agreements, the Security Agreement, the Trademark Collateral
Agreement, and the Pledge Agreements (or any other Loan Document) or to the
extent necessary to afford the obligations under the documents referred to below
the status of being guaranteed and secured pari passu with the other obligations
hereunder, the term "Loan Document" shall also be deemed to include Interest
Rate Protection Agreements which have been entered into in compliance with
Section 8.32 (Interest Rate Protection) in favor of one or more Lenders or their
Affiliates and all agreements, instruments and other documents relating to
Letters of Credit.
o Management Agreement: that certain Management
Agreement between the Company and SPC dated as of May 12, 1999.
o Management Fees: for any period, all fees and other
amounts payable to SPC under the Management Agreement (including, without
limitation, fees due, amounts accrued, and overhead and administrative costs
allocated by SPC to the Company or any Subsidiary of the Company), but not SPC
Expense Reimbursement.
o Material Assets: inventory, accounts receivable,
equipment, investment property, instruments (other than the notes in respect of
the ESOP Loan) and general intangibles as defined in the Uniform Commercial
Code, provided, however, notwithstanding the foregoing, it is acknowledged that
FCC licenses may not be effectively pledged under existing law. Therefore, the
Company and the Guarantors will pledge the proceeds of such licenses and what
ever other rights respecting the FCC licenses may be pledged and will pledge the
equity of the entities that hold the FCC licenses. Further, the Company will not
be required to file fixture financing statements except as specifically
requested by the Administrative Agent.
o Material Adverse Change: either (1) any material
adverse change in the business, financial condition, nature of assets,
operations or properties of (a) the Company and its Subsidiaries taken as a
whole, (b) Susquehanna Cable and its Subsidiaries taken as a whole, or (c)
Susquehanna Radio and its Subsidiaries taken as a whole or (2) any material
adverse change in the business, condition (financial or otherwise), operations,
properties or prospects of the Company or any of its Subsidiaries, individually,
if such change could result in the insolvency or dissolution of such Person or
in the loss of control (by the current holder thereof) over such Person's
assets.
o Material Adverse Effect: any material adverse effect
on:
(1) the business, condition (financial or
otherwise), operations or properties of (a) the Company and
its Subsidiaries taken as a whole, (b) Susquehanna Cable and
its Subsidiaries
-12-
taken as a whole, (c) Susquehanna Radio and its Subsidiaries
taken as a whole, or (d) the Company or any of its
Subsidiaries, individually, if such material adverse effect on
the business (financial or otherwise), operations, or
properties of the Company or any of its Subsidiaries
individually, could result in the insolvency or dissolution of
such Person or in the loss of control (by the current holder
thereof) over such Person's assets,
(2) the ability of SPC, the Company or any
of the Company's Subsidiaries to perform their respective
obligations under the Loan Documents,
(3) the binding nature, validity or
enforceability of any of the Loan Documents as an obligation
of SPC, the Company or the Company's Subsidiaries to the
extent they are parties to such documents, or
(4) the validity, perfection, priority or
enforceability of the Liens granted to Agent for the benefit
of the Issuing Bank, the Lenders and other Senior Secured
Parties in respect of the property of SPC, the Company and the
Company's Subsidiaries.
o Maturity Date: the latest of the Revolver Maturity
Date, the Term A Maturity Date and the Term B Maturity Date.
o Month: a period from and including a given day in a
calendar month to the day in the subsequent calendar month numerically
corresponding to such given day except that (1) if there is no numerical
correspondent in such subsequent calendar month, or (2) if such given day is the
last day of a calendar month, such day shall be the last day of such subsequent
calendar month.
o Multiemployer Plan: means a multiemployer pension
plan as defined in Section 3(37) of ERISA to which the Company, any of its
Subsidiaries or any ERISA Affiliate is or has been required to contribute
subsequent to September 25, 1980.
o Net Cash Proceeds: for any issuance or sale of equity
securities or debt securities or instruments, the cash proceeds, payable in U.S.
Dollars received from such issuance or incurrence, net of (1) reasonable legal,
accounting, and investment banking fees, underwriting discounts and sales
commissions and other customary fees and expenses actually incurred in
connection therewith and (2) taxes paid or payable as a result thereof; it being
understood that "Net Cash Proceeds" shall include, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration
received by SPC, the Company, or any of its Subsidiaries in respect of such
equity issuance or debt issuance.
o Net Income: for any period, the aggregate net income
(or loss) of the Company and its Subsidiaries for such period on a consolidated
basis, provided, the following items shall be excluded from the calculation of
Net Income:
(1) after-tax gains and losses from asset sales or
abandonment or reserves relating thereto;
(2) items classified as extraordinary, nonrecurring
or unusual gains, losses or charges, and the related tax effects, each
determined in accordance with GAAP;
(3) the net income of any Person acquired in a
"pooling of interests" transaction accrued prior to the date it becomes a
Subsidiary of the Company or is merged or consolidated with the Company or any
Subsidiary of the Company;
(4) the net income (but not loss) of any Subsidiary
of the Company to the extent that the declaration of dividends, the making of
intercompany loans or similar payments by that Subsidiary of that income is
restricted by a contract, operation of law or otherwise;
-13-
(5) the net income of any Person, other than a
Subsidiary of the Company, except to the extent of cash dividends or
distributions paid to the Company or a Subsidiary of the Company by such Person;
(6) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time after December 31, 2003;
(7) income or loss attributable to discontinued
operations (including operations disposed of during such period whether or not
such operations were classified as discontinued); and
(8) in the case of a successor to the Company by
consolidation or merger or as a transferee of the Company's assets, any earnings
of the successor corporation prior to such consolidation, merger or transfer of
assets.
o Net Proceeds: for any sale, lease, transfer or other
disposition of any asset, or for any sale or issuance of any security, by any
Person, the aggregate amount of cash consideration received by such Person for
such asset or security, including cash payments received in respect of a
promissory note issued as part of the original consideration in such
transaction, after deducting therefrom
(1) the amount of such proceeds required to
be applied to repay Indebtedness secured by any asset
so disposed of, other than Indebtedness to the
Lenders under the Loan Documents (including
indebtedness in respect of Interest Rate Protection
Agreements),
(2) reasonable brokerage commissions, legal
fees, finders' fees and other similar fees and
commissions and related expenses incurred by such
Person in connection with such transaction,
(3) taxes payable in connection with or as a
result of such transaction or, if applicable, held in
reserve to pay taxes when due, and
(4) other reasonable out-of-pocket costs
incurred in connection therewith by such Person,
in the case of each of clauses (1), (2), (3), and (4) above to the extent, but
only to the extent, that the amounts so deducted are, at the time of receipt of
such cash, paid to a Person that is not an Affiliate of such Person (or, if paid
to such an Affiliate, to the extent the terms of such payment are no more
favorable to such Affiliate than such terms would be in an arm's-length
transaction) and are properly attributable to such transaction or to the asset
or security that is the subject thereof. All Net Proceeds received from sales or
dispositions of assets, payable to Lenders pursuant to this Agreement, shall be
in the form of cash, in U.S. Dollars.
o New Term C Lender: the meaning specified in
Subsection 2.3.8 (Commitment for Term C Loans).
o Notes: the promissory notes delivered by the Company
to the Lenders (including any successors or assigns thereof) pursuant to this
Agreement (including any amendments, modifications or supplements which may from
time to time, be created in respect of such notes), and any replacement
promissory notes issued in lieu of the foregoing.
o Offer: the meaning specified in Subsection 2.3.8
(Commitment for Term C Loans).
o Officers' Compliance Certificate: an Officers'
Certificate in the form of Exhibit L.
o Officers' Certificate: a certificate executed on
behalf of the Company by its President or one of its Vice Presidents or its
Treasurer.
-14-
o Other Shareholders: the meaning specified in
paragraph (d) of Subsection 5.1.5 (Pledge Agreements).
o Other Taxes: all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or under any other Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.
o Participant: has the meaning assigned to such term in
clause (d) of Section 11.5 (Successors and Assigns).
o PBGC: Pension Benefit Guaranty Corporation, or any
governmental agency or instrumentality succeeding to the functions thereof.
o Permitted Businesses: owning, operating, managing and
maintaining domestic cable television systems, radio broadcasting stations and
businesses directly related thereto, including marketing research, internet,
telephony and high speed data transmission services.
o Permitted Holders: (1) descendants, and spouses of
descendants, of Xxxxx X. Xxxxxx, Xx. (including any trusts established for the
benefit of one or more such descendants or spouses of such descendants of which
one or more of such descendants or spouses of such descendants are trustees
together with officers of SPC or its Subsidiaries and/or the trust department of
a financial institution) and (2) the ESOP so long as executive officers of SPC
constitute the majority of the ESOP committee under ESOP.
o Permitted Lien: the meaning specified in Subsection
8.2.1 (Liens - In General).
o Permitted Non-wholly Owned Subsidiaries: the meaning
specified in Subsection 8.3.2 (Investments).
o Person: any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
governmental authority or other entity.
o Plan: an "Employee Pension Benefit Plan" (as defined
in Section 3(2) of ERISA) or an "Employee Welfare Benefit Plan" (as defined in
Section 3(3) of ERISA) which is or has been established or maintained, or to
which contributions are or have been made, by SPC, the Company, any of its
Subsidiaries or any ERISA Affiliate (or any predecessor thereof).
o Pledge Agreements: the Company Pledge, the Subsidiary
Pledge, and the SPC Pledge, collectively.
o Potential Event of Default: any condition or event
specified in Article 9 (Events of Default) which, with notice or lapse of time
or both, would become an Event of Default.
o Pro Forma Basis: calculation of the financial
covenants specified in Article 7 (Financial Covenants) in connection with an
Acquisition, disposition or other specified transaction with the following
adjustments: (1) EBITDA shall be adjusted in the manner set forth in the last
sentence of such definition to take account of such Acquisition or disposition
or other specified transaction and any other Acquisition or disposition or other
specified transaction which has occurred during the period to which such
calculations relate and (2) Consolidated Indebtedness and any interest expense
related thereto of the Company and its Subsidiaries shall be adjusted to reflect
Indebtedness incurred or paid in connection with such Acquisition, disposition
or other specified transaction and any other Acquisition, disposition or other
specified transaction which has occurred during the relevant period.
o PUC: any state or local regulatory agency or body
that exercises jurisdiction over the ownership, construction or operation of
Permitted Businesses.
-15-
o PUC Franchise: any Franchise granted or issued by any
PUC.
o Quarterly Payment Date: the last Business Day of each
March, June, September and December.
o Radio License Subsidiaries: the Subsidiaries of the
Company whose sole activity is to hold FCC Licenses and grant rights to use such
FCC Licenses to other Subsidiaries of the Company that use such FCC Licenses to
operate their respective radio broadcast businesses.
o RC Lender: each Lender designated as an "RC Lender"
on Schedule 1.1 hereto and each successor and assign thereof.
o RCRA: the Resource Conservation and Recovery Act of
1976, as amended, and any rules and regulations issued in connection therewith.
o Registered Lender: the meaning specified in
Subsection 2.5(c) (Delivery of Tax Forms).
o Registered Note: the meaning specified in Subsection
2.5(b) (Request for Registration).
o Regulatory Change: with respect to any Lender, any
change or implementation after the date of this Agreement in United States
federal, state or foreign laws or regulations, including, without limitation,
the issuance of any final regulations or guidelines, or the adoption or making
after such date of any interpretations, directives or requests applying to a
class of banks, including any such Lender, of or under any United States federal
or state, or any foreign, laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
o Related Parties: with respect to any Person, such
Person's Affiliates and the directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
o Release: a release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment or into or out of any property,
including the movement of Hazardous Substances through or in the air, soil,
surface water, groundwater or property.
o Remedial Action: actions necessary to comply with any
Environmental Law with respect to (1) clean up, removal, treatment or handling
Hazardous Substances in the indoor or outdoor environment; (2) prevention of
Releases or threats of Releases or minimization of further Releases of Hazardous
Substances so they do not migrate or endanger or threaten to endanger public
health or welfare or the indoor or outdoor environment; or (3) performance of
pre-remedial studies and investigations and post-remedial monitoring and care.
o Reorganization: any reorganization as defined in
Section 4241(a) of ERISA.
o Reportable Event: with respect to any Employee
Pension Plan, an event described in Section 4043(c) of ERISA.
o Requisite Lenders: at any time, Lenders having
greater than or equal to Fifty-One percent (51%) of the Total Facility. For
purposes of this definition, "Total Facility" means, collectively, at any time
(1) the Revolving Credit Commitment (whether borrowed or not) and (2) the
outstanding principal amount of the Term Loans, but shall exclude any Revolving
Credit Commitment or Term Loans of Lenders who have forfeited their right to
vote under the terms of this Agreement.
o Reserve Percentage: the meaning specified in
Subsection 2.8.5 (Definition of Adjusted LIBOR).
o Restricted Payment: (1) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
or ownership interest of the Company or any of its Subsidiaries, as the case may
be, now
-16-
or hereafter outstanding, except a dividend payable solely in shares of stock
(other than Disqualified Stock) of the Company or such Subsidiary, as the case
may be;
(2) any redemption, retirement, purchase or other
acquisition, direct or indirect, of any shares of any class of stock or
ownership interest of the Company or any of its Subsidiaries, as the case may
be, now or hereafter outstanding, or of any warrants, rights or options to
acquire any such shares or interests, except to the extent that the
consideration therefor consists solely of shares of stock (other than
Disqualified Stock) of the Company or such Subsidiary, as the case may be, and
other than purchases of minority interests in the Subsidiaries of the Company
from Persons that hold minority interests in the Company or its Subsidiaries on
the date of this Agreement (it being understood that such purchases are subject
to the provisions of Section 8.3 (Investments, Loans, Acquisitions, Etc.) above
and other relevant provisions of this Agreement);
(3) any sinking fund, other prepayment or installment
payment on account of any shares of stock or ownership interests of the Company
or any of its Subsidiaries, as the case may be;
(4) any other payment, loan or advance to a
shareholder or other equity holder of the Company or of any Subsidiary of the
Company whether in the capacity of such Person as a shareholder or otherwise,
except
(a) Management Fees permitted to be
paid under this Agreement,
(b) payments under the Tax Sharing
Agreement,
(c) payments of royalties to the Radio
License Subsidiaries for the right
to use the FCC Licenses held by
them,
(d) SPC Expense Reimbursement,
(e) Comcast Programming Payments,
(f) salaries and other compensation,
the payment of which is not
otherwise restricted under the Loan
Documents, paid in the ordinary
course of business,
(g) amounts paid to SPC in respect of
ESOP Compensation Expense allocated
to the Company in accordance with
the terms of the ESOP Sharing
Agreement provided, however, that
ESOP Repurchase Payments and other
amounts paid to SPC in respect of
the ESOP shall be deemed to be
Restricted Payments, and
(h) payments made to purchase minority
interests in Subsidiaries of the
Company in accordance with the
provisions of Subsection 8.3.2(o)
(Investments), and
(5) any forgiveness or release without adequate
consideration by the Company or any Subsidiary of the Company of any
Indebtedness or other obligation owing to the Company or such Subsidiary by a
Person (other than the Company or a Subsidiary) that is a shareholder or other
equity holder of the Company or a Subsidiary or an Affiliate of any such
shareholder or other equity holder.
o Revolver Maturity Date: the earlier to occur of (a)
Xxxxx 00, 0000, (x) December 31, 2008, if any subordinated Indebtedness maturing
before August 1, 2012 is not refinanced on terms and conditions satisfactory to
Agent on or prior to September 30, 2008, or (c) the date on which the Revolving
Credit Loans are accelerated in accordance with the provisions of this
Agreement.
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o Revolving Credit Commitment: the meaning specified in
Subsection 2.1.1. (Commitment to Make Revolving Loans).
o Revolving Loans: the meaning specified in Subsection
2.1.1 (Commitment to Make Revolving Loans).
o Security Agreement: the meaning specified in
Subsection 5.1.3 (Security Agreement).
o Senior Debt: Total Debt less Indebtedness under the
Senior Subordinated Notes and any other unsecured subordinated Indebtedness that
is issued on subordination and other terms acceptable to the Agent.
o Senior Secured Obligations: any and all indebtedness,
obligations and liabilities of any type or nature, direct or indirect, absolute
or contingent, related or unrelated, due or not due, liquidated or unliquidated,
arising by operation of law or otherwise, now existing or hereafter arising or
created of the Company, and/or any Subsidiary of the Company, and/or any other
Person, to any Senior Secured Party, represented by or incurred pursuant or
relating to the Loan Documents (which, for this purpose only shall include
Interest Rate Protection Agreements required or permitted by this Agreement and
Letters of Credit issued pursuant to this Agreement). Without limiting the
generality of the foregoing, the term "Senior Secured Obligations" shall
include, without limitation:
(1) principal of, and interest on the Loans and the
Notes (including, without limitation, Swing Loans and Note evidencing the Swing
Loans);
(2) any and all other fees, indemnities, costs,
obligations and liabilities of the Company, each Subsidiary thereof and each and
every other Loan Party from time to time owing to the Senior Secured Parties
under, arising out of, or related to the Loan Documents;
(3) all obligations of the Company owing to any
Issuing Bank or Lender under Letters of Credit or other debt instruments issued
by any Issuing Bank or Lender under the terms of the Loan Agreement;
(4) obligations in respect of Interest Rate
Protection Agreements entered into with a Lender or an Affiliate of a Lender;
and
(5) all amounts (including but not limited to
post-petition interest) in respect of the foregoing that would be payable but
for the fact that the obligations to pay such amounts are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving any Loan Party or any other Person.
o Senior Secured Parties: the Agent (in any capacity
including, without limitation, in its capacity as agent hereunder and as agent
under any other Loan Document), any Issuing Bank, any Lender (in any capacity
including, without limitation, as an issuer of Interest Rate Protection
Agreements required or permitted under the terms of this Agreement for so long
as such issuer is a Lender hereunder), any Affiliate of a Lender that issues
Interest Rate Protection Agreements required under the terms of this Agreement,
any Indemnitee, and any successor or assign of the foregoing.
o Senior Subordinated Indentures: the Indenture dated
as of May 12, 1999 for the 8-1/2% Senior Subordinated Notes due 2009 between the
Company and JPMorgan Trust Company, National Association, as Trustee and the
Indenture dated as of April 23, 2003 for the 7-3/8% Senior Subordinated Notes
due 2013 between the Company and JPMorgan Trust Company, National Association,
as Trustee.
o Senior Subordinated Notes: the 8-1/2% Senior
Subordinated Notes and 7-3/8% Senior Subordinated Notes issued pursuant to the
Senior Subordinated Indentures.
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o Solvent or Solvency: a condition of a Person on a
particular date, whereby on such date (1) the fair value of the property of such
Person is greater than the total amount of liabilities, including, but not
limited to, contingent liabilities, of such Person, (2) the present fair salable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (3) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature, and (4) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an unreasonably
small capital. In computing the amount of contingent liabilities at any time, it
is intended that such liabilities will be computed at the amount that, in light
of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
o SPC: Susquehanna Pfaltzgraff Co., a Delaware
corporation.
o SPC Expense Reimbursement: the meaning specified in
Subsection 8.8.1 (Limitations on Management Arrangements).
o SPC Pledge: the meaning specified in paragraph (a) of
Subsection 5.1.5 (Pledge Agreements).
o SPC Subordination Agreement: the meaning specified in
paragraph (a) of Subsection 5.1.6 (Subordination Agreements).
o SPFV: the meaning specified in Subsection 3.2 (Lender
Required Payment).
o Subordinated Party: each party (and each other Person
that may, from time to time, become a party) to a Subordination Agreement, other
than the Agent.
o Subordination Agreements: collectively, the SPC
Subordination Agreement, the Comcast Subordination Agreement, and any other
subordination agreement hereafter executed and delivered to the Agent pursuant
to the terms of this Agreement.
o Subsidiary: with respect to any Person, (1) any
corporation of which more than 50% of the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries and (2) any
partnership, joint venture or other association of which more than 50% of the
equity interests having the power to vote to direct or control the management of
such partnership, joint venture or other association is at the time owned or
controlled, directly or indirectly, by such Person, by such Person and one or
more of the other Subsidiaries or by one or more of such Person's other
Subsidiaries.
o Subsidiary Pledge: the meaning specified in paragraph
(c) of Subsection 5.1.5 (Pledge Agreements).
o Subsidiary Suretyship: the meaning specified in
Subsection 5.1.4 (Guaranty and Suretyship Agreement).
o Susquehanna Cable: Susquehanna Cable Co., a
Pennsylvania corporation and a Subsidiary of the Company.
o Susquehanna Radio: Susquehanna Radio Corp., a
Pennsylvania corporation and a Subsidiary of the Company.
o Swing Lender: Wachovia so long as it is a Lender, or
if Wachovia is no longer a Lender, then a Lender designated by the Company and
acceptable to the Agent.
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o Swing Loan: the meaning specified in Subsection 2.2.1
(Swing Loan Advances).
o Taxes: all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
o Tax Sharing Agreement: that certain tax sharing
agreement among the Company, its Subsidiaries, SPC and its other Subsidiaries,
respecting the allocation of tax liabilities among SPC and its Subsidiaries
dated May 12, 1999 as further amended on May 29, 2003.
o Term A Lender: each Lender designated as a "Term A
Lender" on Schedule 1.2 hereto and each successor and assign thereof.
o Term A Loan: the meaning specified in Subsection
2.3.1 (Commitment for Term A Loan).
o Term A Loan Commitment: the meaning specified in
Subsection 2.3.1 (Commitment for Term A Loan).
o Term A Maturity Date: the earlier to occur of (1)
March 31, 2011, (2) December 31, 2008, if any subordinated Indebtedness maturing
before August 1, 2012 is not refinanced on terms and conditions satisfactory to
Agent on or prior to September 30, 2008, or (3) the date on which the Term A
Loan is accelerated in accordance with the provisions of this Agreement.
o Term B Lender: each Lender designated as a "Term B
Lender" on Schedule 1.2 hereto and each successor and assign thereof.
o Term B Loan: the meaning specified in Subsection
2.3.2 (Commitment for Term B Loan).
o Term B Loan Commitment: the meaning specified in
Subsection 2.3.2 (Commitment for Term B Loan).
o Term B Maturity Date. the earlier to occur of (1)
March 31, 2012, (2) December 31, 2008, if any subordinated Indebtedness maturing
before August 1, 2012 is not refinanced on terms and conditions satisfactory to
Agent on or prior to September 30, 2008, or (3) the date on which the Term B
Loan is accelerated in accordance with the provisions of this Agreement.
o Term C Advance State: the meaning specified in
Subsection 2.3.8 (Commitment for Term C Loans).
o Term C Lenders: the meaning specified in Subsection
2.3.8 (Commitment for Term C Loans).
o Term C Loan: the meaning specified in Subsection
2.3.8 (Commitment for Term C Loans).
o Term C Loan Commitment: the meaning specified in
Subsection 2.3.8 (Commitment for Term C Loans).
o Term C Request Notice: the meaning specified in
Subsection 2.3.8 (Commitment for Term C Loans).
o Term Loans: collectively the Term A Loans and Term B
Loans and, if applicable, Term C Loans.
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o Total Debt: the aggregate principal amount of
Consolidated Indebtedness of the Company and its Subsidiaries.
o Trademark Collateral Agreement: the meaning specified
in Subsection 5.1.7 (Intellectual Property Collateral Agreements).
o Transferee Subsidiaries: the meaning specified in
Subsection 8.9 (Existence).
o Unapplied Net Proceeds: Net Proceeds received from a
disposition pursuant to Subsection 8.7.2(c) or (d) (Sales and Other
Dispositions).
o Unreimbursed Drawings: drawings made under Letters of
Credit which, for any reason, have not been reimbursed by or on behalf of the
Company whether through borrowings of Loans hereunder or otherwise.
o U.S. Dollars and $: lawful money of the United States
of America.
o Voting Stock: capital stock or other ownership
interests of any class or classes of a corporation or another entity the holders
of which are entitled to elect a majority of the corporate directors or Persons
performing similar functions.
o WABZ Assets: the assets used in the operation of
radio broadcasting station WABZ, Albemarle, North Carolina, including, without
limitation, the FCC License for such station.
o WABZ Disposition: the sale of the WABZ Assets on
substantially the same terms set forth in the letter of intent dated January 26,
2004, between the Company and RadioOne, with such changes thereto as the Company
shall determine are in its best interests.
o Withdrawal Liability: any withdrawal liability as
defined in Section 4201 of ERISA.
1.2 TERMS GENERALLY.
The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation." The word "will" shall be
construed to have the same meaning and effect as the word "shall." Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein," "hereof" and "hereunder," and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
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1.3. ACCOUNTING TERMS; CHANGES IN GAAP
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP as in
effect from time to time; provided, if there is a change in GAAP after the date
of this Agreement that affects the calculation of any financial covenants in
Article 7 (Financial Covenants) below, the Agent and the Company shall in good
faith agree to such modifications to the financial covenants as to reflect more
accurately the original intent of the parties. Such agreement by the Company and
the Agent shall be binding on all parties hereto.
ARTICLE 2
THE LOANS
2.1 REVOLVING CREDIT LOANS.
2.1.1 COMMITMENT TO MAKE REVOLVING LOANS. Subject to and upon the terms
and conditions set forth in this Agreement, the RC Lenders shall make advances
to the Company until the Revolver Maturity Date up to the aggregate principal
amount outstanding at any one time of Two Hundred Million Dollars ($200,000,000)
(as the same may be reduced pursuant to this Agreement, the "Revolving Credit
Commitment"); provided however that (a) the aggregate amount of the Revolving
Credit Commitment available for borrowing at any time shall not exceed the
Available Commitment (as hereinafter defined); (b) the amount and percentage of
the Revolving Credit Commitment and the Available Commitment which each RC
Lender is obligated to lend shall not exceed at any time the amount or
percentage set forth opposite the name of such RC Lender on Schedule 1.1 hereto
(as supplemented and amended by giving effect to the assignments contemplated in
this Agreement). Within the limits set forth above, the Company may borrow under
this Section 2.1, repay or prepay such advances, and reborrow under this Section
2.1. The amounts loaned to the Company pursuant to the revolver facility
described in this Section 2.1 are referred to as the "Revolving Loans."
2.1.2 AVAILABLE COMMITMENT. "Available Commitment" shall mean the
initial Revolving Credit Commitment, as the same is reduced by:
(a) voluntary reductions in the Revolving Credit Commitment
pursuant to Subsection 2.1.3 below;
(b) mandatory reductions in the Revolving Credit Commitment
pursuant to Subsections 2.1.4 and 2.l.5, respectively, below;
(c) the face amount of any outstanding Letters of Credit and
any Unreimbursed Drawings (if any) relating to Letters of Credit; and
(d) the aggregate principal amount of any outstanding Swing
Loans and Revolving Loans.
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2.1.3 VOLUNTARY COMMITMENT REDUCTIONS. The Company shall have the right
at any time and from time to time upon five (5) Business Days' prior written
notice to the Agent to reduce (on a pro rata basis among the RC Lenders)
permanently, in minimum amounts of Five Million Dollars ($5,000,000) or in whole
multiples of One Million Dollars ($1,000,000) in excess of Five Million Dollars
($5,000,000) of principal, or terminate the Revolving Credit Commitment, without
penalty or premium except as otherwise provided in Subsections 2.8.6 (Additional
Costs, Unavailability, Etc.) and 2.10.2 (Breakage) and Section 11.15 (Expenses;
Indemnity; Damage Waiver).
2.1.4 REPAYMENT OF REVOLVING CREDIT COMMITMENT. The Revolving Credit
Commitment shall be terminated on the Revolver Maturity Date.
2.1.5 COMMITMENT REDUCTIONS IN CONNECTION WITH CERTAIN EVENTS. The
Revolving Credit Commitment shall be reduced at such times as are specified in
Subsection 2.3.6(g) (Order of Prepayments).
2.1.6 [INTENTIONALLY OMITTED].
2.1.7 PREPAYMENT IN CONNECTION WITH COMMITMENT REDUCTIONS. Upon the
effective date of each reduction in the Revolving Credit Commitment referred to
above, the Company shall be required to pay to the Agent for the benefit of the
RC Lenders the principal amount of the Revolving Loans and/or Swing Loans, to
the extent, if any, that the aggregate amount of the Revolving Loans and Swing
Loans then outstanding plus the aggregate face value of Letters of Credit then
outstanding and Unreimbursed Drawings exceeds the amount of the Available
Commitment as so reduced. If after prepayment of all outstanding Revolving Loans
and Swing Loans, the amounts of outstanding Letters of Credit and Unreimbursed
Drawings exceed the Available Commitment as so reduced, the Company shall pay to
the Agent for the benefit of the RC Lenders an amount by which the aggregate
face value of all outstanding Letters of Credit and Unreimbursed Drawings
exceeds the Available Commitment as so reduced, such amount first to be applied
against Unreimbursed Drawings and the remainder to be maintained by the Agent in
an interest bearing cash collateral account in the name of and for the benefit
of the Agent and the RC Lenders to secure the repayment of Company's obligation
to reimburse the RC Lenders from drafts drawn or which may be drawn under
outstanding Letters of Credit until such time as the applicable Letters of
Credit have expired or been cancelled). At the request of the Agent, accrued
interest on the Loans so prepaid shall be due and payable at the time of such
prepayment. All amounts of principal, interest and fees relating to Revolving
Loans not due and payable prior to the Revolver Maturity Date are due and
payable on that date.
2.1.8 VOLUNTARY PREPAYMENTS. Except as otherwise provided in this
Agreement, the Company shall be permitted to prepay the Revolving Loans at any
time without penalty or premium. In connection with each voluntary prepayment:
(a) The Company shall provide the Agent with notice of its
intention to prepay,
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(i) no later than 11:00 a.m. (Charlotte, NC time) on
the date of prepayment in the case of Revolving Loans bearing
interest at the Base Rate plus Applicable Margin, and
(ii) no later than 11:00 a.m. (Charlotte, NC time)
three (3) Business Days prior to the date of prepayment in the
case of Revolving Loans bearing interest at Adjusted LIBOR
plus Applicable Margin.
(b) Each prepayment of principal of a Revolving Loan shall be
in a minimum amount equal to Two Million Dollars ($2,000,000.00) or in amounts
in excess thereof equal to Two Million Dollars ($2,000,000) plus integral
multiples of $500,000 in excess thereof.
2.2 SWING LOANS.
2.2.1 SWING LOAN ADVANCES. Upon the terms and subject to the conditions
of this Agreement, the Swing Lender agrees to make, from time to time, from and
including the Effective Date to but excluding the Revolver Maturity Date, one or
more Loans ("Swing Loans") to the Company, in an aggregate principal amount not
exceeding at any time $5,000,000, provided, however, that no Swing Loan shall be
made at any time in an amount in excess of the Available Commitment.
2.2.2 TERMS OF SWING LOAN BORROWINGS. The Company shall give the Swing
Lender notice (which shall be irrevocable) of a request for a Swing Loan (with a
copy to the Agent) no later than 12:00 noon (Charlotte, NC time) on the day such
Loan is requested; if such notice is received later than 12:00 noon (Charlotte,
NC time), then the request shall be deemed to be a request for a Swing Loan to
be made on the next Business Day. Each Swing Loan shall be in a principal amount
equal to or greater than Two Hundred Thousand Dollars ($200,000) and shall bear
interest at the Base Rate plus Applicable Margin. The Company shall repay each
Swing Loan no later than 3:00 p.m. (Charlotte, NC time) on the earlier of (A)
the date that demand is made therefor by the Swing Lender and (B) the Revolver
Maturity Date. The Swing Lender shall provide prompt notice to the Agent of any
repayment of Swing Loans by the Company.
2.2.3 PARTICIPATION BY RC LENDERS. Upon demand made to all of the RC
Lenders by the Swing Lender, which demand may be made before or after an Event
of Default or Potential Event of Default (including, without limitation, an
Event of Default arising in connection with an insolvency, bankruptcy, etc.),
and before or after the maturity date of the subject Swing Loans, but subject to
the provisions of Subsection 2.2.5 (Certain Limitations) below, each RC Lender
shall promptly, irrevocably and unconditionally purchase from the Swing Lender,
without recourse or warranty, an undivided interest and participation in the
Swing Loans then outstanding.
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Each RC Lender shall effect such purchase by paying to the Swing Lender
in immediately available funds, without reduction or deduction of any kind,
including reductions or deductions for set-off, recoupment or counterclaim, an
amount equal to such RC Lender's pro rata share of the principal amount of all
Swing Loans then outstanding. Each RC Lender's pro rata share of the Swing Loans
shall be based on the amount of such RC Lender's pro rata share of the total
Revolving Credit Commitment. Thereafter, the RC Lenders' respective interests in
such Swing Loans, and the remaining interest of the Swing Lender in such Swing
Loans, shall in all respects be treated as Revolving Loans under this Agreement,
except that (x) subject to Subsection 2.8.8 (Default Rate) below, such Swing
Loans shall continue to bear interest at the rate specified in Subsection 2.2.2
(Terms of Swing Loan Borrowings) above for such Swing Loans until such Swing
Loans are due and payable and (y) such Swing Loans shall be due and payable by
the Company on the dates referred to in Subsection 2.2.2 (Terms of Swing Loan
Borrowings).
If any RC Lender does not pay any amount which it is required to pay
pursuant to this Subsection 2.2.3 promptly upon the Swing Lender's demand
therefor, (i) the Swing Lender shall be entitled to recover such amount on
demand from such RC Lender, together with interest thereon, at the Federal Funds
Rate for the first three Business Days, and thereafter at the Base Rate, for
each day from the date of such demand, if made prior to 2:00 p.m. (Philadelphia,
Pennsylvania time) on any Business Day, or, if made at any later time, from the
next Business Day following the date of such demand, until the date such amount
is paid in full to the Swing Lender by such RC Lender and (ii) the Swing Lender
shall be entitled to all interest payable by the Company on such amount until
the date on which such amount is received by the Swing Lender from such RC
Lender. Moreover, any RC Lender that shall fail to make available the required
amount shall not be entitled to vote on or consent to or approve any matter
under this Agreement and the other Loan Documents until such amount with
interest is paid in full to the Swing Lender by such RC Lender. Without limiting
any obligations of any RC Lender pursuant to this Subsection 2.2.3, if any RC
Lender does not pay such corresponding amount promptly upon the Swing Lender's
demand therefor, the Swing Lender shall notify the Company and the Company shall
promptly repay such corresponding amount to the Swing Lender together with
accrued interest thereon at the applicable rate on such Swing Loans.
2.2.4 NO SET-OFF, ETC. Subject only to the limitations set forth in the
following Subsection 2.2.5 (Certain Limitations), the obligations of each RC
Lender to make available to the Swing Lender the amounts set forth in the
preceding Subsection 2.2.3 (Participation by RC Lenders) shall be absolute,
unconditional and irrevocable under any and all circumstances, shall be without
reduction for any set-off or counterclaim of any nature whatsoever, may not be
terminated, suspended or delayed for any reason whatsoever, shall not be subject
to qualification or exception and shall be made in accordance with the terms of
this Agreement.
2.2.5 CERTAIN LIMITATIONS. No RC Lender shall be obligated to purchase
a participation in any Swing Loan pursuant to Subsection 2.2.3 (Participation by
RC Lenders), if such RC Lender proves that (A) the conditions set forth in
Subsections 5.2.1 (No Default) or 5.2.3 (Representations and Warranties) were
not satisfied at the time such Swing Loan was made (unless such condition was
waived in accordance with the terms of this Agreement) and (B) such
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RC Lender or the Agent had notified the Swing Lender in a writing received by
the Swing Lender at least one Business Day prior to the time that it made such
Swing Loan that the Swing Lender was not authorized to make such Swing Loan
because such conditions were not satisfied and stating with specificity the
reason therefor. The Swing Lender shall not be obligated to the Company to make
any Swing Loans at any time after it has received a notice pursuant to clause
(B) above whether or not the statements made therein are true.
2.3 TERM LOANS.
2.3.1 COMMITMENT FOR TERM A LOAN. Upon the terms and subject to the
conditions of this Agreement, each Term A Lender agrees to make advances ("Term
A Loans") to the Company on or prior to June 30, 2004 in an aggregate principal
amount not to exceed One Hundred Fifty Million Dollars ($150,000,000) (the "Term
A Loan Commitment"), provided, however, that the amount and percentage of the
Term A Loan Commitment that any Lender is obligated to lend shall not exceed the
amount or percentage set forth opposite the name of such Lender on Schedule 1.2
hereto. The Company shall not be permitted to reborrow any amount of the Term A
Loans once repaid.
2.3.2 COMMITMENT FOR TERM B LOAN. Upon the terms and subject to the
conditions of this Agreement, each Term B Lender agrees to make advances ("Term
B Loans") to the Company on the Effective Date in an aggregate principal amount
not to exceed Two Hundred and Fifty Million Dollars ($250,000,000) (the "Term B
Loan Commitment"), provided, however, that the amount and percentage of the Term
B Loan Commitment that any Lender is obligated to lend shall not exceed the
amount or percentage set forth opposite the name of such Lender on Schedule 1.2
hereto. The Company shall not be permitted to reborrow any amount of the Term B
Loans once repaid.
2.3.3 SCHEDULED REPAYMENT OF TERM A LOAN. The principal of Term A Loans
shall be due and payable in quarterly installments on March 31, June 30,
September 30 and December 31 of each year commencing on June 30, 2006, in each
case in an amount equal to (a) the Term A Loan Commitment on the date hereof,
multiplied by (b) the quarterly reduction percentage specified below, such that
all of the Term A Loans will be repaid in full on the Term A Maturity Date:
Calendar Quarter Quarterly Percentage
---------------- --------------------
6/30/2006 2.5%
9/30/2006 2.5%
12/31/2006 2.5%
3/31/2007 2.5%
6/30/2007 3.75%
9/30/2007 3.75%
12/31/2007 3.75%
3/31/2008 3.75%
6/30/2008 5.0%
9/30/2008 5.0%
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Xxxxxxxx Xxxxxxx Xxxxxxxxx Percentage
---------------- --------------------
12/31/2008 5.0%
3/31/2009 5.0%
6/30/2009 6.25%
9/30/2009 6.25%
12/31/2009 6.25%
3/31/2010 6.25%
6/30/2010 7.5%
9/30/2010 7.5%
12/31/2010 7.5%
3/31/2011 7.5%
All amounts of principal, interest and fees relating to Term A Loans
are due and payable on the Term A Maturity Date.
2.3.4 SCHEDULED REPAYMENT OF TERM B LOAN. The principal of Term B Loans
shall be due and payable in quarterly installments on March 31, June 30,
September 30 and December 31 of each year commencing on June 30, 2005, in each
case in an amount equal to (a) the Term B Loan Commitment on the date hereof,
multiplied by (b) the quarterly reduction percentage specified below, such that
all of the Term B Loans will be repaid on the Term B Maturity Date:
Calendar Quarter Quarterly Percentage
---------------- --------------------
6/30/2005 0.25%
9/30/2005 0.25%
12/31/2005 0.25%
3/31/2006 0.25%
6/30/2006 0.25%
9/30/2006 0.25%
12/31/2006 0.25%
3/31/2007 0.25%
6/30/2007 0.25%
9/30/2007 0.25%
12/31/2007 0.25%
3/31/2008 0.25%
6/30/2008 0.25%
9/30/2008 0.25%
12/31/2008 0.25%
3/31/2009 0.25%
6/30/2009 0.25%
9/30/2009 0.25%
12/31/2009 0.25%
3/31/2010 0.25%
6/30/2010 0.25%
9/30/2010 0.25%
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12/31/2010 0.25%
3/31/2011 0.25%
6/30/2011 23.5%
9/30/2011 23.5%
12/31/2011 23.5%
3/31/2012 23.5%
All amounts of principal, interest and fees relating to Term B Loans are due and
payable on the Term B Maturity Date.
2.3.5 VOLUNTARY PREPAYMENTS. The Company may at any time and from time
to time upon five (5) Business Days' prior written notice to the Agent prepay
either Term A Loans or Term B Loans in whole or in part in a minimum amount
equal to $2,000,000 or in incremental amounts equal to $1,000,000 in excess of
such minimum amount, without penalty or premium except as provided in
Subsections 2.8.6 (Additional Costs, Unavailability, Etc.) and 2.10.2 (Breakage)
and Section 11.15 (Expenses; Indemnity; Damage Waiver).
2.3.6 MANDATORY PREPAYMENTS IN CONNECTION WITH CERTAIN EVENTS. In
addition to the scheduled repayments of the Term Loans, the Company shall prepay
the Loans (and/or reduce the Commitments, as applicable) under the following
circumstances:
(a) Asset Sales. The Company shall prepay the Loans in an
amount equal to the Unapplied Net Proceeds from dispositions, provided that so
long as no Event of Default or Potential Event of Default is then existing, and
the Company notifies the Agent of its intent to do so within five (5) Business
Days of receipt thereof, the Company may use the Unapplied Net Proceeds for
Acquisitions permitted by this Agreement made within 270 days from receipt of
the Unapplied Net Proceeds. If the Company does not so notify the Agent of its
intent to use the proceeds in the manner specified above, it shall prepay the
Loans within five (5) Business Days of receipt of the Unapplied Net Proceeds (or
such other time period as the Agent may agree to). Further if the Company does
so notify the Agent, but fails to use the Unapplied Net Proceeds for
Acquisitions within said 270-day period; then it shall prepay the Loans on the
date that is 270 days after the date of receipt of the Unapplied Net Proceeds.
In addition to the foregoing, if pursuant to the Senior Subordinated Indentures
or any other subordinated indenture, the Company is required to use proceeds of
dispositions to prepay Indebtedness thereunder if such proceeds are not used to
prepay senior Indebtedness, the Company shall use the proceeds of such
dispositions to prepay the Loans hereunder at the time specified in such
indenture. Notwithstanding anything to the contrary contained in this Agreement,
no prepayment of the Loans shall be required in connection with the WABZ
Disposition.
(b) Issuance of Equity. At any time that the Company or any of
its Subsidiaries issues equity (other than to the Company or any of its
Subsidiaries and other than in connection with an employee benefit plan
permitted by this Agreement), the Company shall prepay the Loans in an amount
equal to 50% of the Net Cash Proceeds of the issuance, provided that so long as
no Event of Default or Potential Event of Default is then existing, and the
Company notifies the Agent of its intent to do so within five (5) Business Days
of receipt thereof, the Company may use the Net Cash Proceeds for Acquisitions
permitted by this Agreement made
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within 270 days from receipt of the proceeds. If the Company does not so notify
the Agent of its intent to use the proceeds in the manner specified above, it
shall prepay the Loans within five (5) Business Days of receipt of the Net Cash
Proceeds (or such other time period as the Agent may agree to). Further if the
Company does so notify the Agent, but fails to use the Net Cash Proceeds for
Acquisitions within said 270-day period; then it shall prepay the Loans on the
date that is 270 days after the date of receipt of the proceeds.
(c) Issuance of Debt. At any time that the Company or any of
its Subsidiaries issues Indebtedness of $7,500,000 or more (except pursuant to
paragraphs (a), (b), (c), (d) or (f) of Subsection 8.1.1 (Indebtedness - In
General)), the Company shall prepay the Loans in an amount equal to 100% of the
Net Cash Proceeds of the issuance, provided that so long as no Event of Default
or Potential Event of Default is then existing, and the Company notifies the
Agent of its intent to do so within five (5) Business Days of receipt thereof
(or such other time period as the Agent may agree to), the Company may use the
Net Cash Proceeds for Acquisitions permitted by this Agreement made within 270
days from receipt of the proceeds. If the Company does not so notify the Agent
of its intent to use the proceeds in the manner specified above, it shall prepay
the Loans within five (5) Business Days of receipt of the Net Cash Proceeds.
Further if the Company does so notify the Agent, but fails to use the Net Cash
Proceeds for Acquisitions within said 270-day period; then it shall prepay the
Loans on the date that is 270 days after the date of receipt of the proceeds.
(d) Excess Cash Flow. Each year, (beginning in 2006 with
respect to the fiscal year ending December 31, 2005), no later than ten (10)
Business Days after the date that the annual financial statements are required
to be delivered pursuant to Section 6.1.2 (Delivery of Annual Financial
Statements; Accountants' Certification) below (the "target year"), the Company
shall prepay the Loans in an amount equal to the excess of (i) 50% of Excess
Cash Flow for the target year over (ii) $5,000,000.
(e) Insurance Proceeds. In the event that the Company or any
of its Subsidiaries receives property or casualty insurance proceeds and/or a
condemnation or similar payment, if (i) there shall then exist an Event of
Default (without limiting any remedies available to the Agent) or (ii) such
payment is in excess of $2,000,000, the Company shall promptly, and in any event
no later than thirty (30) days from the date of receipt thereof, prepay the
Loans in an amount equal to the amount of such insurance proceeds or other
payments, provided that in the case of Subsection 2.3.6(e)(ii) so long as no
Event of Default or Potential Event of Default is then existing, and the Company
notifies the Agent of its intent to do so within five (5) Business Days of
receipt thereof (or such other time period as the Agent may agree to), the
Company may use the property or casualty insurance proceeds and/or a
condemnation or similar payment to rebuild or replace the asset subject to such
loss or condemnation or for Acquisitions permitted by this Agreement made within
270 days from receipt of the proceeds. If the Company does not so notify the
Agent of its intent to use the proceeds in the manner specified above, it shall
prepay the Loans within five (5) Business Days of receipt of the Net Cash
Proceeds. Further if the Company does so notify the Agent, but fails to use the
Net Cash Proceeds to replace the applicable asset or for Acquisitions within
said 270-day period; then it shall prepay the Loans on the date that is 270 days
after the date of receipt of the proceeds.
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(f) Suspension of Prepayment Requirement. Notwithstanding the
foregoing, (i) the mandatory prepayment requirements set forth in clauses (b)
and (c) will be suspended during any period when the Total Leverage Ratio is
less than or equal to 4.5:1 for the most recent quarter ended when prepayment is
due, and (ii) the mandatory prepayment requirements set forth in clause (d) will
be suspended during any period when the Total Leverage Ratio is less than or
equal to 5.0:1 for the most recent quarter ended when prepayment is due, in each
case, based on the most recently delivered financial statements.
(g) Order of Prepayments. Subject to the provisions of
Subsection 2.3.7(b) (Relationship of Voluntary and Other Mandatory Prepayments
to Scheduled Payments; Right to Opt Out), any prepayments required by this
Subsection 2.3.6 shall be applied first against any Term B Loans and then
against Term A Loans, and in each case, first to such Loans as are bearing
interest at the Base Rate plus the Applicable Margin and then to Loans bearing
interest at the LIBOR Rate plus the Applicable Margin (and among those, first to
those with Interest Periods ending on the earliest date). If any prepayment
would require the Company to prepay a Loan bearing interest at the LIBOR Rate
plus the Applicable Margin prior to the end of the applicable Interest Period
and thereby incur breakage costs, if no Event of Default or Potential Event of
Default shall have then occurred and be continuing, the Company may in lieu
thereof deposit such prepayment amounts with the Agent until the end of the
applicable Interest Period, at which time the Loans shall be paid in accordance
with the terms of this Subsection 2.3.6. If the amount of the prepayment
required by this Subsection 2.3.6 exceeds the amount of outstanding Term Loans,
then, the Revolving Credit Commitment shall be reduced by an amount equal to the
amount of such excess.
2.3.7 RELATIONSHIP OF VOLUNTARY AND OTHER MANDATORY PREPAYMENTS TO
SCHEDULED PAYMENTS; RIGHT TO OPT OUT. (a) Any voluntary prepayments of Term A
Loans or Term B Loans pursuant to Subsection 2.3.5 (Voluntary Prepayments) above
shall be applied against the scheduled payments set forth in Subsection 2.3.3
(Schedule Repayment of Term A Loan) and Subsection 2.3.4 (Scheduled Repayment of
Term B Loan), as applicable, on a pro rata basis. Any mandatory prepayments of
Term A Loans or Term B Loans pursuant to Subsection 2.3.6 above (Mandatory
Prepayments in Connection with Certain Events) shall be applied against the
scheduled payments set forth in Subsection 2.3.3 (Scheduled Repayment of Term A
Loan) and Subsection 2.3.4 (Scheduled Repayment of Term B Loan), as applicable,
on a pro rata basis, reducing proportionately each of the scheduled payments
specified in said Subsection 2.3.3 or 2.3.4, as applicable, on or after the
effective date of such mandatory prepayment unless Lenders of the Term B Loans
elect to opt-out of such prepayment pursuant to this Subsection 2.3.7(b). Any
prepayment shall not affect the Company's obligation to continue making payments
under any Interest Rate Protection Agreement, which shall remain in full force
and effect notwithstanding such prepayment, subject to the terms of such
Interest Rate Protection Agreement.
(b) Except with respect to voluntary prepayments of all of the
Term B Loans (as to which no Lenders shall be entitled to opt out), each Lender
of Term B Loans may opt out of any voluntary or mandatory prepayment of Term B
Loans in accordance with the terms of the following sentence. The Agent shall
make prepayments of Term B Loans to each Lender
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of Term B Loans to the extent required by Subsection 2.3.7(a) unless not later
than 11:30 a.m. (Charlotte, NC time) five (5) Business Days prior to the making
of such prepayment, the Agent shall have received notice from a Lender of the
Term B Loans electing not to receive such prepayment. Any amount which would be
payable to a Term B Lender but for such Lender's decision to opt out of the
payment in accordance with this paragraph (b) (the "Opt Out Amount") shall be
applied to Term A Loans in the manner set forth in paragraph (g) of Subsection
2.3.6 (Mandatory Prepayments in Connection with Certain Events) above. To the
extent that there are no outstanding Term A Loans to which the Opt Out Amounts
may be applied, such excess Opt Out Amounts shall be applied against the Term B
Loans of any Term B Lenders that have not elected to opt out pursuant to this
paragraph (b) (in the manner set forth in paragraph (g) of Subsection 2.3.6
(Mandatory Prepayments in Connection with Certain Events) above).
2.3.8 COMMITMENT FOR TERM C LOANS. (a) In the event that the Company
wishes to access additional Term Loans hereunder ("Term C Loans") at any time
when no Default or Event of Default has occurred and is continuing, it may
notify the Agent in writing (such notice, a "Term C Request Notice") and request
that an offer be made pursuant to paragraph (b) below to issue Term C Loans in
an amount not to exceed Two Hundred Million Dollars ($200,000,000).
(b) The Company may, at its election, subject and pursuant to
the terms of this Subsection 2.3.8, (i) offer to all of the Lenders the
opportunity to provide all or a portion of the Term C Loans pursuant to
paragraph (c) below and/or (ii) with the consent of the Agent (which consent
shall not be unreasonably withheld), offer one or more financial institutions
meeting the requirements of "Eligible Assignee," the opportunity to provide all
or a portion of Term C Loans pursuant to paragraph (c) below, provided, that the
aggregate amount of all Term C Loans for which Lenders and other Eligible
Assignees may commit (the "Term C Loan Commitment") shall not exceed Two Hundred
Million Dollars ($200,000,000) and provided, further the minimum amount of each
such increase shall be an aggregate amount of not less than Twenty Five Million
Dollars ($25,000,000). The Term C Request Notice shall specify which Eligible
Assignees the Company desires to provide such opportunity to provide Term C
Loans (the "Offer").
(c) Each Offer shall specify (i) the proposed total amount of
the Term C Loan Commitment (or range (including the maximum and minimum) of the
amount of Term C Loan Commitment that the Company desires, as applicable), (ii)
the proposed date on which (or the proposed period during which) the proposed
Term C Loans shall be made (the actual date on which such Loans are made, being
herein referred to as the "Term C Advance Date"), (iii) the date by which an
Offer must be accepted and the addressee where an acceptance is to be sent, (iv)
the maturity date of the Term C Loans (which may not be earlier than the Term B
Maturity Date), (v) the amortization, if any, on the Term C Loans (which may not
have a weighted average life to maturity earlier than the Term B Loans), (vii)
the interest rate and (viii) any other terms that the Company, with the consent
of the Agent, shall specify respecting conditions, mechanics, fees (if any) and
allocation. The Company or, if requested by the Company, the Agent, will provide
to each of the applicable Lenders and/or Eligible Assignees an Offer.
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(d) Any Eligible Assignee which receives an Offer and which
elects to become a party to this Agreement (herein called a "New Term C Lender")
and any Lender which elects to accept an Offer pursuant to this Subsection 2.3.8
(herein called an "Accepting Term C Lender") shall so state by accepting the
Offer in accordance with the terms thereof.
(e) Notwithstanding anything to the contrary, in no event
shall any transaction effected pursuant to this Subsection 2.3.8 (i) cause the
sum of (without duplication) (x) the Revolving Credit Commitment, (y) the
outstanding principal amount of the Term Loans and (z) the Term C Loan
Commitments to exceed Eight Hundred Million Dollars ($800,000,000) or (ii)
result in the Term C Loan Commitment of any New Term C Lender to be in an amount
less than $1,000,000. Subject to the limitations in the preceding sentence, the
Agent shall allocate the total Term C Loan Commitment among the Accepting Term C
Lenders and New Term C Lenders in the relative amounts specified in the Offers
or, if no allocation is specified (or if the specified allocation would be in
conflict with the terms of the preceding sentence), then in such relative
amounts as the Agent and the Company shall determine, provided, however, no
Accepting Term C Lender nor New Term C Lender shall be required to accept any
Term C Loan Commitment that it has not otherwise agreed to accept.
(f) Each New Term C Lender shall execute a New Term C Lender
supplement with the Company and the Agent, in form and substance satisfactory to
the Agent and shall deliver to the Agent an Administrative Questionnaire,
whereupon such New Term C Lender shall become a Lender for all purposes and to
the same extent as if originally a party hereto and shall be bound by and
entitled to the benefits of this Agreement.
(g) Each Accepting Term C Lender shall execute an Accepting
Term C Lender supplement with the Company and the Agent, in form and substance
satisfactory to the Agent, whereupon such Accepting Term C Lender shall be bound
by and entitled to the benefits of this Agreement with respect to its Term C
Loan Commitment and Term C Loans.
(h) On the Term C Advance Date, each Accepting Term C Lender
and each New Term C Lender (collectively, the "Term C Lenders") shall make a
Term C Loan to the Company in an amount equal to its Term C Loan Commitment
subject to (i) satisfaction of the conditions specified in Subsection 5.2.2
(Request for Advance/Letter of Credit) of this Agreement, (ii) receipt by the
Agent of certified copies of resolutions of the Company authorizing the Term C
Loan Commitment and Term C Loans, (iii) receipt by the Agent of a legal opinion
of counsel to the Company covering such matters as the Agent may reasonably
determine (including, without limitation, the status of the Term C Loans as
"Senior Debt" under any of the Company's subordinated indentures) and (iv) such
other conditions, if any, as are specified in the Offer.
(i) The terms of the Term C Loans (as to maturity,
amortization, etc.) set forth in the Offer shall be incorporated by reference
into this Agreement. The Agent and the Company are authorized to enter into such
supplements and amendments to this Agreement and other Loan Documents for the
purpose of clarifying or adding terms relative to the Term C
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Loans, Term C Commitment and Term C Lenders as are not materially inconsistent
with the terms of this Agreement or applicable Loan Document, including, without
limitation, provisions providing for the creation of promissory notes evidencing
the Term C Loans should any Term C Loan Lender desire one. If any material terms
respecting Term C Loans or Term C Lenders are not expressly referenced in the
Offer or a supplemental or amendatory agreement, the relevant terms applicable
to Term B Loans or Term B Lenders herein or in the other Loan Documents shall
apply to the Term C Loans or Term C Lenders, as applicable. The Company shall,
or the Agent on behalf of the Company may, provide notice to the Lenders of the
material terms incorporated herein by reference or by supplemental or amendatory
agreement.
(j) For the sake of clarity, it is expressly understood that
the Term C Loans are Loans, Term Loans and Senior Secured Obligations for all
purposes under the Loan Documents and are entitled to the benefits of the
collateral security and guarantees provided for in the Loan Documents and that
the Term C Lenders are Lenders for all purposes of the Loan Documents and
entitled to the indemnifications and other rights of Lenders thereunder.
2.4 LENDERS' OBLIGATIONS SEVERAL.
Each Lender is severally bound by this Agreement, but there shall be no
joint obligation of the Lenders under this Agreement. The failure of any Lender
to make any share of the Loans or obligations respecting Letters of Credit to be
made by it on the date specified for the Loans or such obligations shall not
relieve any other Lender of its obligation to make its share of the Loans or
other obligations on such date, but neither any Lender nor the Agent shall be
responsible for the failure of any other Lender to make a share of the Loans or
other obligations to be made by such other Lender.
2.5 NOTES; REGISTRATION.
(a) Notes. Upon the request of any RC Lender, the aggregate
principal amount of each RC Lender's share of the Revolving Credit Commitment
and Revolving Loans shall be evidenced by a note to be issued by the Company to
each RC Lender in substantially the form attached hereto as Exhibit A-1 (with
appropriate completion of the name of the applicable RC Lender). Upon the
request of any Term A Lender, the aggregate amount of such Term A Lender's share
of the Term A Loan Commitment and Term A Loans shall be evidenced by a note to
be issued by the Company to such Term A Lender in substantially the form
attached hereto as Exhibit A-2 (with the appropriate completion of the name of
the applicable Term A Lender). Upon the request of any Term B Lender, the
aggregate amount of such Term B Lenders' share of the Term B Loan Commitment and
Term B Loans shall be evidenced by a note to be issued by the Company to such
Term B Lender in substantially the form attached as Exhibit A-3 to this
Agreement (with appropriate completion of the name of the applicable Term B
Lender). Upon the request of the Swing Lender, the Swing Loans and commitment
therefor shall be evidenced by a note to be issued by the Company to the Swing
Lender in substantially the form attached as Exhibit A-4 to this Agreement.
(b) Request for Registration. Any Lender may request the
Company (through the Agent), to register its Loans as provided in paragraph (d)
below and, if such Loans are otherwise evidenced by a Note, to issue such
Lender's Note, or to exchange such Note for a
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new Note, registered as provided in paragraph (d) below (a "Registered Note"). A
Registered Note may not be exchanged for a Note that is not in registered form.
A Registered Note shall be deemed to be and shall be a Note for all purposes of
this Agreement and the other Loan Documents.
(c) Delivery of Tax Forms. Each Lender that is not formed
under the laws of the United States or political subdivision thereof that
requests or holds a Registered Note pursuant to the preceding paragraph (b) or
registers its Loans pursuant to the preceding paragraph (b) (a "Registered
Lender") (or, if such Registered Lender is not the beneficial owner thereof,
such beneficial owner) shall deliver to the Company (with a copy to the Agent)
prior to or at the time such Non-U.S. Lender becomes a Registered Lender, the
applicable form described in Section 3.4 (Tax Forms) (or such successor and
related forms as may from time to time be adopted by the relevant taxing
authorities of the United States) together with an annual certificate stating
that such Registered Lender 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 is not
otherwise described in Section 881(c)(3) of the Code. Each Registered Lender or
beneficial owner, as the case may be, shall promptly notify the Company (with a
copy to the Agent) if at any time such Registered Lender or beneficial owner, as
the case may be, determines that it is no longer in a position to provide such
previously delivered certificate to the Company (or any other form of
certification adopted by the relevant taxing authorities of the United States
for such purposes).
(d) Registration of Loans. The Agent, acting, for this
purpose, as agent of the Company, shall, upon request of any Registered Lender,
enter in the Register the name, address and taxpayer identification number (if
provided) of the Registered Lender or beneficial owner as the case may be. In
addition to the requirements of Section 11.5 (Successors and Assigns), a
Registered Note and the Loans evidenced thereby (or such Loans pending delivery
of such Registered Note) or any other Loans registered pursuant to paragraph (b)
above may be assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Registered Note and/or the
Loans so registered on the Register (and each such Registered Note shall
expressly so provide). Any assignment or transfer of all or part of such Loans
and such Registered Note shall be registered on the Register only upon
compliance with the provisions of Section 11.5 (Successors and Assigns) and, in
the case of Registered Notes, surrender for registration of assignment or
transfer of the Registered Note evidencing such Loans, duly endorsed by (or
accompanied by a written instrument of assignment or transfer fully executed by)
the Registered Lender thereof, and thereupon one or more new Registered Notes in
the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s) and, if less than all of such Registered Notes is
thereby being assigned or transferred, the assignor or transferor.
2.6 BORROWING NOTICE.
Fundings of Revolving Loans shall be in the minimum amount of Two
Million Dollars ($2,000,000) and integral multiples of Five Hundred Thousand
Dollars ($500,000) in excess of such minimum amount. To effect a funding, the
Company shall give the Agent written notice in the form annexed to this
Agreement as Exhibit B specifying the amount and date of each intended borrowing
and the manner in which the same shall be disbursed, which notice
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(a) in the case of borrowings to bear interest at a rate based
upon the Base Rate, shall be given no later than 11:00 a.m. (Charlotte, NC time)
on the date of such borrowing,
(b) in the case of borrowings to bear interest based upon
Adjusted LIBOR, shall be given no later than 11:00 a.m. (Charlotte, NC time) at
least three (3) Eurodollar Business Days prior to each such borrowing and shall
specify the Interest Period with respect to such borrowing, and
(c) in the case of an advance, or an advance which is part of
a series of related advances, in excess of $50,000,000 for the purpose of
effecting an Acquisition or purchasing a minority interest as more fully set
forth in Subsection 2.8.3 (Officers' Certificate), shall be accompanied by the
Officers' Certificate required by said Subsection 2.8.3.
The Agent in turn shall give prompt written or telephonic (promptly confirmed in
writing) notice to each Lender of its pro rata share of the borrowing, the
interest rate option selected and the scheduled date of the funding. After
receipt of such notice, each Lender shall make such arrangements as are
necessary to assure that its share of the funding shall be immediately available
(in U.S. Dollars) to the Agent no later than 2:30 p.m. (Charlotte, NC time), on
the date on which the funding is to occur. After receipt of the funds, the
Agent, subject to the satisfaction of the conditions precedent set forth in
Section 5.2 (Requirements for Each Loan/Letter of Credit), shall disburse the
amount of such funding in accordance with instructions in the Company's
borrowing notice.
The Lenders shall not be obligated to comply with a borrowing
notice if there shall then exist an Event of Default or a Potential Event of
Default regardless of whether Lenders have determined to exercise their remedies
arising upon the occurrence of such Event of Default or Potential Event of
Default.
2.7 FEES TO LENDERS.
2.7.1 COMMITMENT FEES. The Company shall pay to the Agent for the
account of the RC Lenders and Term A Lenders, as applicable, quarterly in
arrears on each Quarterly Payment Date a commitment fee (the "Commitment Fee")
(calculated on the basis of a 360 day year for the actual days elapsed) equal to
the product of the Commitment Fee Base (as hereafter defined) and
(i) Three-eighths of one per cent (3/8%), at any time that the
Consolidated Total Leverage Ratio is greater than or equal to
4.50:1; and
(ii) One-quarter of one per cent (1/4%), at any time that the
Consolidated Total Leverage Ratio is less than 4.50:1.
"Commitment Fee Base" means, with respect to Commitment Fees to RC Lenders, an
amount at any time equal to (a) the amount of the Revolving Credit Commitment
less (b) the sum of the aggregate principal amount of outstanding Revolving
Loans, the face amount of outstanding Letters of Credit and any Unreimbursed
Drawings in respect of Letters of Credit. (Swing Loans shall not reduce the
Commitment Fee Base.) Notwithstanding the foregoing, the Commitment Fee to RC
Lenders shall be increased by one-eighth of one percent (1/8%) on any day that
the Commitment Fee Base for RC Loans is greater than fifty percent (50%) of the
amount of the Revolving Credit Commitment.
"Commitment Fee Base" means, with respect to Commitment Fees to Term A Lenders,
an amount at any time equal to (a) the amount of the Term A Loan Commitment less
(b) the aggregate principal amount of outstanding Term A
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Loans. Notwithstanding the foregoing, the Commitment Fee to Term A Lenders shall
be increased by one-eighth of one percent (1/8%) on any day that the Commitment
Fee Base for Term A Loans is greater than fifty percent (50%) of the amount of
the Term A Loan Commitment.
Subject to the next sentence, any change in the percentage amount set
forth in clauses (i) and (ii) of this Subsection 2.7.1 shall be effective on the
fifth (5th) Business Day immediately following delivery of the Officers'
Certificate described in paragraph (a) of Subsection 2.8.3 (Officers'
Certificate) below and the fifth (5th) Business Day following the borrowing or
prepayment, as applicable, made in connection with an Acquisition or disposition
referred to in paragraphs (b) and (c) of said Subsection 2.8.3. In the event
that any Officers' Certificate referred to in clause (a) or (b) of Subsection
2.8.3 is not delivered in a timely fashion, the percentage amount shall be the
highest rate set forth above effective on the fifth (5th) Business Day after
written notice to such effect is given by the Agent to the Company until the
fifth (5th) Business Day immediately following delivery of such Officers'
Certificate. The Commitment Fee shall begin to accrue from the Effective Date
and shall be shared by the RC Lenders entitled thereto in proportion to their
respective shares of the Revolving Credit Commitment.
2.7.2 LETTER OF CREDIT FEES AND FRONTING FEES. The Company shall pay to
the Agent for the account of the RC Lenders such letter of credit fees as are
described in Article 4 (Letters of Credit) below, except that the Fronting Fee
shall be paid only to the Issuing Bank.
2.7.3 OTHER FEES. The Company shall pay such other fees, if any, as the
Company has otherwise agreed to pay to the Agent, the Issuing Bank and/or the
Lenders.
2.8 INTEREST.
2.8.1 THE RATES. The Loans (other than Swing Loans) shall bear interest
at Company's option (subject to the limitation and conditions set forth in this
Section) at the Base Rate plus the Applicable Margin or at the Adjusted LIBOR
plus the Applicable Margin. Interest accruing at the Base Rate plus the
Applicable Margin shall be payable quarterly on each Quarterly Payment Date,
commencing with the first Quarterly Payment Date after the Effective Date.
Interest accruing at Adjusted LIBOR plus the Applicable Margin shall be payable
on the last day of each Interest Period, provided that if the Interest Period is
six (6) Months or longer, interest shall be payable on the ninetieth (90th) day
of the Interest Period, every ninetieth (90th) day thereafter until the end of
the Interest Period and on the last day of the Interest Period. Interest
calculated at the Base Rate plus the Applicable Margin shall be computed on the
basis of a 365/6 day year and interest calculated at the Adjusted LIBOR plus the
Applicable Margin shall be computed on the basis of a 360 day year.
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2.8.2 APPLICABLE MARGIN. The term "Applicable Margin" when used with
respect to the Base Rate shall mean the following:
Consolidated Total Base Rate Base Rate
Leverage Applicable Margin Applicable Margin
Ratio for Revolving Loans and Term A Loans for Term B Loan
-------------------- ------------------------------------- -----------------
Equal to or greater
than 6.00 1.000% 0.750%
Equal to or greater
than 5.50 but less than 6.00 0.750% 0.750%
Equal to or greater
than 5.00 but less than 5.50 0.500% 0.750%
Equal to or greater
than 4.50 but less than 5.00 0.250% 0.750%
Equal to or greater
than 4.00 but less than 4.50 0.000% 0.750%
Less than 4.00 0.000% 0.500%
The term "Applicable Margin" when used with respect to Adjusted LIBOR
shall mean the following:
Consolidated Total Adjusted LIBOR Adjusted LIBOR
Leverage Applicable Margin for Applicable Margin
Ratio Revolving Loans and Term A Loans for Term B Loans
------------------ -------------------------------- -----------------
Equal to or greater
than 6.00 2.250% 2.000%
Equal to or greater
than 5.50 but less than 6.00 2.000% 2.000%
Equal to or greater
than 5.00 but less than 5.50 1.750% 2.000%
Equal to or greater
than 4.50 but less than 5.00 1.500% 2.000%
Equal to or greater
than 4.00 but less than 4.50 1.250% 2.000%
Less than 4.00 1.000% 1.750%
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2.8.3 OFFICERS' CERTIFICATE.
(a) The Company shall provide the Agent with an Officers'
Certificate on a Pro Forma Basis in the form annexed to this Agreement as
Exhibit D within sixty (60) days after the close of each of the first three
quarters of each fiscal year of the Company and within one hundred twenty (120)
days after the close of each fiscal year of the Company setting forth the
computations and information as of the end of the preceding fiscal quarter
necessary for the determination of the Applicable Margin and the percentage
amount applicable to the Commitment Fee.
(b) In addition, at any time that the Company requests an
advance, or a series of related advances, in an amount in excess of $50,000,000
for the purpose of effecting an Acquisition or purchasing a minority interest in
any direct or indirect Subsidiary of the Company (whether in connection with a
buy-sell agreement, a put, a call or otherwise), the Company shall provide the
Agent with an Officers' Certificate on a Pro Forma Basis (along with the request
for advance as required by Section 2.6 (Borrowing Notice) above). Such Officers'
Certificate on a Pro Forma Basis shall set forth the calculation of the
Consolidated Total Leverage Ratio after giving pro forma effect to the proposed
Loans and transactions contemplated in connection therewith.
(c) In addition, at any time that the Company makes a
disposition of assets in accordance with Section 8.7 (Mergers and Dispositions)
below and prepays the Loans in accordance with Subsection 2.1.5 (Commitment
Reductions in Connection with Certain Events) above or Subsection 2.3.6
(Mandatory Prepayments in Connection with Certain Events) in an amount in excess
of $50,000,000 (whether in one prepayment or a series of related prepayments),
the Company shall provide the Agent with an Officers' Certificate on a Pro Forma
Basis (along with the notice of prepayment). Such Officers' Certificate on a Pro
Forma Basis shall set forth the calculation of the Consolidated Total Leverage
Ratio after giving pro forma effect to the proposed prepayment of the Loans, the
disposition of the assets and transactions contemplated in connection therewith.
Subject to the next sentence, the determination of the Applicable
Margin shall be effective with respect to the Loans as of the fifth (5th)
Business Day immediately following delivery of any Officers' Certificate
delivered pursuant to paragraph (a) above and the fifth (5th) Business Day
following the borrowing or prepayment, as applicable, made in connection with an
Acquisition or disposition referred to in paragraphs (b) and (c) above. In the
event that any Officers' Certificate required by paragraph (a) or (b) above is
not delivered in a timely fashion, the Applicable Margin shall be the Applicable
Margin otherwise applicable if the Consolidated Leverage Ratio is equal to or
greater than 6.00, effective on the fifth (5th) Business Day after written
notice to such effect is given by the Agent and continuing until any such
Officers' Certificate is delivered to Agent, whereupon, in the latter event any
required change to the Applicable Margin shall be effective with respect to the
Loans commencing as of the fifth (5th) Business Day immediately following
delivery of such Officers' Certificate.
2.8.4 LIBOR ELECTION. (a) Unless otherwise elected by the Company, the
Loans shall bear interest at the Base Rate plus the Applicable Margin. The
Company may, upon three (3) Eurodollar Business Days' prior written notice to
the Agent in the form of Exhibit C to
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this Agreement, and subject to and upon the terms and conditions set forth in
this Agreement, elect to borrow money that will bear interest based on Adjusted
LIBOR plus the Applicable Margin or to convert a portion of the Loans to bear
interest based on Adjusted LIBOR plus the Applicable Margin. Any such election
may be made with respect to a principal amount designated in such notice and
equal to at least Five Million Dollars ($5,000,000) and integral multiples of
One Million Dollars ($1,000,000) in excess of such minimum, for the period next
ensuing, which period ("Interest Period") shall equal one, two, three or six
Months or, if available by all Lenders, one year, as designated by the Company
in its notice.
(b) The Company may not convert any outstanding Loans to a
borrowing bearing interest based on Adjusted LIBOR plus the Applicable Margin or
otherwise elect an interest rate based on Adjusted LIBOR plus the Applicable
Margin if at the time of such conversion or election there shall exist an Event
of Default or Potential Event of Default under Subsections 9.1.1 (Failure to Pay
Principal), 9.1.2 (Failure to Pay Interest, Fees, Reimbursement Obligations,
Etc.), 9.1.3 (Cross Default to Indebtedness) or 9.1.6 (Certain Covenant
Defaults), but, in the case of Subsection 9.1.6, only if the underlying default
relates to breach of the covenants set forth in Article 7 (Financial Covenants).
(c) If an interest rate based on Adjusted LIBOR plus the
Applicable Margin is elected, such interest rate shall remain in effect for the
Interest Period selected and such interest rate shall not otherwise be converted
to another interest rate prior to the expiration of the Interest Period except
as otherwise required by this Section. If an Interest Period with respect to a
rate of interest based on Adjusted LIBOR plus the Applicable Margin would
otherwise commence on a day which is not a Eurodollar Business Day, such
Interest Period shall commence on the next Eurodollar Business Day.
(d) The principal accruing interest based on Adjusted LIBOR
plus the Applicable Margin shall, commencing on the last day of the Interest
Period, bear interest at the Base Rate plus the Applicable Margin unless prior
thereto the Agent has received a notice pursuant to this Section (and within the
time periods required) that an elective rate based on Adjusted LIBOR plus the
Applicable Margin shall be effective commencing on such date with respect to any
or all of such principal.
(e) The Company may not elect an interest rate based on
Adjusted LIBOR plus the Applicable Margin if such election would require the
Agent to administer concurrently Loans (including Revolving Loans, Term A Loans
and Term B Loans collectively) for more than a combination of elective rates of
interest based on Adjusted LIBOR or Interest Periods that exceed an aggregate of
ten (10).
(f) If an Interest Period would otherwise end on a day which
is not a Eurodollar Business Day, such Interest Period shall be extended to the
next Eurodollar Business Day, unless such next Eurodollar Business Day shall
fall in the next calendar month in which event such Interest Period shall end on
the immediately preceding Eurodollar Business Day.
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(g) The Company may not elect an interest rate based on
Adjusted LIBOR plus the Applicable Margin with respect to any portion of the
Loans if, as a result of a reduction in the Revolving Credit Commitment, a
scheduled payment or otherwise, the Company knows that it would be required to
repay a portion of the Loans bearing interest based on Adjusted LIBOR plus the
Applicable Margin on a day other than the last day of any applicable Interest
Period or Periods.
(h) No Interest Period may be elected that would end later
than the Revolver Maturity Date (for Revolver Loans) or the Term A Maturity Date
(for Term A Loans) or the Term B Maturity Date (for Term B Loans).
2.8.5 DEFINITION OF ADJUSTED LIBOR. As used in this Agreement, the term
"Adjusted LIBOR" shall mean the rate per annum (rounded upwards if necessary to
the nearest one-hundredth of one percent) determined by the Agent to be equal to
the quotient of (a) LIBOR, divided by (b) a number equal to 1.00 minus the
Reserve Percentage.
As used herein, "LIBOR" means the rate of interest per annum
determined on the basis of the rate for deposits in Dollars in minimum amounts
of at least $5,000,000 for a period equal to the applicable Interest Period
which appears on the Telerate Page 3750 at approximately 11:00 a.m. (London
time) two (2) Business Days prior to the first day of the applicable Interest
Period (rounded upward, if necessary, to the nearest one one-hundredth of one
percent (1/100%)). If, for any reason, such rate does not appear on Telerate
Page 3750, then "Adjusted LIBOR" shall be determined by the Agent to be the
arithmetic average (rounded upward, if necessary, to the nearest one
one-hundredth of one percent (1/100%)) of the rate per annum at which deposits
in Dollars would be offered by first class banks in the London interbank market
to the Agent at approximately 11:00 a.m. (London time) two (2) Eurodollar
Business Days prior to the first day of the applicable Interest Period for a
period equal to such Interest Period and in an amount substantially equal to the
amount of the applicable Loan.
As used in this Agreement, the term "Reserve Percentage"
means, for any day, the percentage (expressed as a decimal and rounded upwards,
if necessary, to the next higher 1/100th of 1%) which is in effect for such day
as prescribed by the Federal Reserve Board (or any successor) for determining
the maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) in respect of eurocurrency liabilities or
any similar category of liabilities for a member bank of the Federal Reserve
System in New York City.
2.8.6 ADDITIONAL COSTS, UNAVAILABILITY, ETC.
(a) If any Change in Law shall: (i) impose, modify or deem
applicable any reserve, special deposit, compulsory loan, insurance charge or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender (except any reserve requirement reflected in the
Adjusted LIBOR Rate) or the Issuing Bank; (ii) subject any Lender or the Issuing
Bank to any tax of any kind whatsoever with respect to this Agreement, any
Letter of Credit, any participation in a Letter of Credit or any Eurodollar Loan
made by it, or change the basis of taxation of payments to such Lender or the
Issuing Bank in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.5 (Taxes) and changes in the rate of any Excluded Tax
payable by such Lender or the Issuing Bank); or (iii) impose on any Lender or
the Issuing Bank or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit or participation therein; and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any Eurodollar Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such
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Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal, interest or
any other amount), then upon request of such Lender the Company will pay to such
Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law affecting such Lender or the Issuing Bank or any lending office of
such Lender or such Lender's or the Issuing Bank's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Bank's policies and the policies of such Lender's or the
Issuing Bank's holding company with respect to capital adequacy), then from time
to time the Company will pay to such Lender or the Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section and delivered to the Company shall be conclusive absent
manifest error. The Company shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation,
provided that the Company shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs incurred or
reductions suffered more than six months prior to the date that such Lender or
the Issuing Bank, as the case may be, notifies the Company of the Change in Law
giving rise to such increased costs or reductions and of such Lender's or the
Issuing Bank's intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the six-month period referred to above shall be extended to include the
period of retroactive effect thereof).
(e) The Company shall pay to the Agent for the account of the
affected Lender or Lenders within thirty (30) days of demand such additional
sums as will compensate such Lender or Lenders for the effect of any change in
reserve requirements or any taxes, duties
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or other charges (or changes in the amount thereof) based upon an allocation by
such affected Lender or Lenders of the additional sums payable as a result of
the Loans or Letters of Credit. No failure on the part of the Agent or any
Lender to demand compensation for any increased costs in any period shall
constitute a waiver of any Lender's right to demand such compensation at any
time, provided, however, that the Company shall not be required to pay any such
compensation for any such increased costs incurred more than six months prior to
the making of the affected Lender's initial such request. Each affected Lender
shall certify the amount of such cost to the Company and provide the Company
with a written statement setting forth the cost claimed and the calculations
used in determining such cost, which certification and statement shall be
conclusive in the absence of manifest error.
(f) In the event that the Company shall have elected an
interest option and period based on Adjusted LIBOR plus the Applicable Margin
and the Requisite Lenders shall have reasonably determined that quotations of
interest rates for the relevant deposits referred to in the definition of
Adjusted LIBOR are not being provided in the relevant amounts or for the
relevant Interest Period for purposes of determining an interest rate based on
Adjusted LIBOR plus the Applicable Margin or that by reason of circumstances
affecting the London Interbank Eurocurrency Market adequate and reasonable means
do not exist for ascertaining Adjusted LIBOR applicable to such deposits for the
specified Interest Period, the Agent shall promptly give notice of such
determination to the Company, and no part of the Loans shall thereafter be
available at Adjusted LIBOR for the specified Interest Period until the
Requisite Lenders determine that the circumstances described above cease to
exist. At such time, Agent shall notify the Company that Adjusted LIBOR is again
available; however, neither Agent nor any of the Lenders shall have any
liability for failure to give such notice. A determination by the Requisite
Lenders shall be conclusive and binding upon the Company.
(g) In the event that by reason of any change in any law,
regulation or official directive, or in the interpretation thereof by any
governmental body charged with the administration thereof, any Lender becomes
subject to restrictions on the amount of any category of deposits or other
liabilities of such Lender which includes deposits by reference to which
Adjusted LIBOR is determined as set forth in this Agreement or a category of
extensions of credit or other assets of such Lender which includes any portion
of the Loans as to which a rate based on Adjusted LIBOR has been elected, then,
if such Lender so elects by notice to the Company setting out the basis of such
election (with a copy to the Agent), the obligation of such Lender to permit
additional borrowings under the Loans at a rate based on Adjusted LIBOR shall be
suspended until such change ceases to be in effect and, during such suspension,
such Lender's portion of all borrowings under the Loans requested to be made at
a rate based on Adjusted LIBOR shall instead bear interest at a rate determined
by reference to the Base Rate and Applicable Margin.
(h) Notwithstanding anything herein contained to the contrary,
if, prior to or during any Interest Period with respect to which a rate based on
Adjusted LIBOR plus the Applicable Margin is in effect, any change in any law,
regulation or official directive, or in the interpretation thereof, by any
governmental body charged with the administration thereof, shall make it
unlawful for any Lender to fund or maintain its funding in Eurodollars of any
portion of the principal amount of the Loans or otherwise to give effect to such
Lender's obligations as
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contemplated by this Agreement, (i) the affected Lender shall by written notice
to the Company and the Agent declare the Company's right to elect an interest
rate based on Adjusted LIBOR plus the Applicable Margin with respect to such
Lender's share of the Loans to be suspended, (ii) any portion of the Loans made
by the affected Lender bearing interest at a rate based on Adjusted LIBOR plus
the Applicable Margin shall forthwith cease to bear interest at such rate, and
interest on such portion of the Loans shall from and after such date be
calculated at a rate based upon the Base Rate plus the Applicable Margin and
(iii) the Company shall indemnify the affected Lender against any loss or
expense suffered by it in liquidating prior to maturity Eurodollar deposits
which correspond to its pro rata share of the principal amount of the Loans to
which a rate based on Adjusted LIBOR was applicable. The affected Lender shall
certify the amount of such loss or expense to the Company and such certification
shall be conclusive in the absence of manifest error.
(i) If either (i) the introduction of, or any change in, or in
the interpretation of, any applicable law or (ii) compliance with any guideline
or request from any central bank or comparable agency or other governmental
authority (whether or not having the force of law), has or would have the effect
of reducing the rate of return on the capital of, or has affected or would
affect the amount of capital required to be maintained by, any Lender or any
corporation controlling such Lender as a consequence of, or with reference to
the Commitments and other commitments of this type, below the rate which the
Lender or such other corporation could have achieved but for such introduction,
change or compliance, then within five (5) Business Days after written demand by
any such Lender, the Company shall pay to such Lender from time to time as
specified by such Lender additional amounts sufficient to compensate such Lender
or other corporation for such reduction. A certificate as to such amounts
submitted to the Company and the Agent by such Lender, shall, in the absence of
manifest error, be presumed to be correct and binding for all purposes.
2.8.7 SOURCE OF FUNDS. Although each Lender may elect to purchase in
the London Inter-Bank Eurocurrency Market one or more Eurodollar deposits in
order to fund or maintain its funding of its pro rata share of the principal
amount of the Loans with respect to which the Company has elected a rate based
upon Adjusted LIBOR plus the Applicable Margin during the Interest Period in
question, it is acknowledged that the provisions of this Agreement relating to
such funding are included only for the purpose of determining the rate of
interest to be paid and any other amounts owing under this Agreement in
connection with such election, and each Lender shall be entitled to fund and
maintain its funding of all or any part of that portion of the principal amount
of the Loans in any manner it sees fit. Nonetheless, all such determinations
shall be made as if each Lender had actually funded and maintained that portion
of the principal amount of the Loans to which a rate based upon Adjusted LIBOR
plus the Applicable Margin is applicable during such Interest Period through the
purchase of Eurodollar deposits in an amount equal to its pro rata share of the
principal amount of the Loans to which a rate based upon Adjusted LIBOR plus the
Applicable Margin is applicable and having a maturity corresponding to such
Interest Period.
2.8.8 DEFAULT RATE. Anything in this Agreement to the contrary
notwithstanding, (a) after maturity, whether scheduled, by acceleration or
otherwise, and whether
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prior to or after a judgment against the Company, or (b) during the existence of
an Event of Default specified in Subsection 9.1.1 (Failure to Pay Principal),
9.1.2 (Failure to Pay Interest, Fees, Reimbursement Obligations, Etc.) or 9.1.3
(Cross Default to Indebtedness) or (c) during the existence of an Event of
Default specified in Subsection 9.1.6 (Certain Covenant Defaults) as a result of
a breach of the covenants set forth in Article 7 (Financial Covenants), the
Loans shall bear interest at two percent (2%) per annum plus the interest
rate(s) otherwise in effect from time to time pursuant to this Agreement (the
"Default Rate").
2.9 PURPOSE.
Upon satisfaction of the conditions and other requirements set forth in
this Agreement, the proceeds of the Loans shall be used by the Company: (i) to
refinance existing Indebtedness on the Effective Date; (ii) to make Restricted
Payments permitted under this Agreement; (iii) to finance Acquisitions,
investments and Capital Expenditures permitted under this Agreement; and (iv)
for working capital needs and general corporate purposes.
2.10 ADDITIONAL PROVISIONS CONCERNING PREPAYMENTS AND FAILURE TO BORROW.
2.10.1 INTEREST ON AMOUNTS PREPAID. At any time that the Company makes
a prepayment of principal, it shall pay accrued interest on the amount so
prepaid.
2.10.2 BREAKAGE. In the event that the Company makes a prepayment
(whether voluntary or mandatory) of any Loans bearing interest at a rate based
on Adjusted LIBOR plus the Applicable Margin for a specified Interest Period on
a day other than the last day of such Interest Period or fails to borrow on the
date specified in the applicable borrowing notice (or convert to a Loan based on
Adjusted LIBOR on the date specified in the LIBOR election) any amount which the
Company shall have requested to borrow at a rate based on Adjusted LIBOR plus
Applicable Margin, the Company will pay to the Agent, upon demand, for the
account of the affected Lenders any cost or expense incurred as a result
thereof. Each affected Lender shall certify the amount of such cost or expense
to the Company and provide the Company with a written statement setting forth
the cost or expense claimed and the calculations used in determining such loss
and expense, which certification and statement shall be conclusive in the
absence of manifest error.
2.10.3 CERTAIN PRESUMPTIONS REGARDING APPLICATION OF PREPAYMENTS.
Unless otherwise provided in this Agreement or other Loan Documents, prepayments
shall be applied first to fees, then to interest (to the extent then payable)
and then to principal with respect to the portions of the Loans accruing
interest at a rate based upon the Base Rate plus the Applicable Margin, and then
to those portions of the Loans accruing interest at a rate based upon Adjusted
LIBOR plus the Applicable Margin and among such portions of the Loans accruing
interest at rates based upon Adjusted LIBOR plus the Applicable Margin to such
portions with the earliest expiring Interest Periods.
2.11 [INTENTIONALLY OMITTED.]
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2.12 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
2.12.1 DESIGNATION OF A DIFFERENT LENDING OFFICE. If any Lender
requests compensation under Subsection 2.8.6 (Additional Costs, Unavailability,
Etc.), or requires the Company to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.5
(Taxes), then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Subsection 2.8.6
(Additional Costs, Unavailability, Etc.) or Section 3.5 (Taxes), as the case may
be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The
Company hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
2.12.2 REPLACEMENT OF LENDERS. If any Lender requests compensation
under Subsection 2.8.6 (Additional Costs, Unavailability, Etc.), or if the
Company is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.5
(Taxes), or if any Lender defaults in its obligation to fund Loans hereunder,
then the Company may, at its sole expense and effort, upon notice to such Lender
and the Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 11.5 (Successors and Assigns), all of its interests, rights
and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that
(a) the Company shall have paid to the Agent the assignment
fee specified in Section 11.5 (Successors and Assigns),
(b) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans and participations in Letters of
Credit, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under
Subsection 2.10.2 (Breakage) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Company (in the case
of all other amounts),
(c) in the case of any such assignment resulting from a claim
for compensation under Subsection 2.8.6 (Additional Costs, Unavailability, Etc.)
or payments required to be made pursuant to Section 3.5 (Taxes), such assignment
will result in a reduction in such compensation or payments thereafter, and
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(d) such assignment does not conflict with applicable law.
A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Company to require such assignment and delegation
cease to apply.
ARTICLE 3
MECHANICS OF PAYMENTS; TAX FORMS
3.1 COMPANY PAYMENT.
All payments on account of principal and interest on the Loans, the
Commitment Fee, and all other amounts otherwise payable to Lenders under this
Agreement (other than payments in respect of Swing Loans which shall be made
directly to the Swing Lender), shall be made to the Agent in U.S. Dollars which
are immediately available (unless otherwise specified) by 2:00 p.m. (Charlotte,
NC time), on the due date for such payment, at the Agent's principal office
(which as of the date of this Agreement is at 000 Xxxxx Xxxxxxx Xxxxxx, XX0000,
Xxxxxxxxx, XX 00000-0000, Attn: Agency Services) specifying the amount and date
of payment, re:
Susquehanna Media Co. (and if by wire transfer, in accordance
with the instructions on the signature page to this Agreement executed by
Wachovia), or to such other accounts or Persons or at such other place as the
Agent may direct in writing. The Company hereby authorizes the Lenders (after
receipt of notice from the Agent to do so) to (i) apply to the aforesaid
payments, up to the amount of such payments, any portion of the balance of any
account maintained by the Company for the purpose of facilitating said payments,
and/or (ii) cause the aforesaid payments to be made, if not paid by the Company
when due, by drawing under the loan facilities provided under this Agreement, or
making additional loans, (and any such loan shall be subject to interest at the
Default Rate and shall be secured by all of the security interests granted
pursuant to the Loan Documents); provided, however, that notwithstanding the
making by the Lenders of any of the aforesaid payments as set forth in this
sentence, the failure of the Company to make any of the aforesaid payments when
due shall constitute an Event of Default. The failure by the Company to make a
payment by 2:00 p.m. shall not constitute an Event of Default if such payment is
made on the due date; however, any payment made after such time on such due date
shall be deemed made on the next Business Day for the purpose of interest and
reimbursement calculations. Except as otherwise set forth in this Agreement,
such payments shall be deemed to be made to the Lenders in proportion to their
respective shares of the applicable amount due. The Agent shall promptly (on the
same day if payment has been received by the Agent by 2:00 p.m. (Charlotte, NC
time) on such day, and including the additional per diem interest and
reimbursement amount paid by Company if such payment was made by the Company to
the Agent after noon on such day) remit to each Lender its pro rata share of
such payment in immediately available funds, except that all reimbursement
payments in respect of losses, out-of-pocket expenses, funding losses or like
matters shall be retained by the Agent or remitted to the Lenders according to
their respective appropriate entitlement to such reimbursement. The requirement
that the Company pay any amount to a Lender shall be discharged by the Company
when such amount of funds are received by the Agent to be disbursed to such
Lender.
The Company's obligations to make payments to the Agent, the Lenders
and the issuing Bank under this Agreement and the Other Documents shall be
absolute and unconditional under any and all circumstances and all payments
shall be made without setoff or counterclaim.
3.2 LENDER REQUIRED PAYMENT.
Unless the Agent shall have been notified by a Lender prior to noon
(unless otherwise specified in this Agreement) on the date on which it is
scheduled to fund to the Agent a portion of the Commitment or any other amount
payable by a Lender under this Agreement (such payment being the "Lender
Required Payment"), which notice will be effective upon receipt, that it does
not intend to make the Lender Required Payment to the Agent, the Agent may
assume
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that the Lender Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount thereof available to
the Company (or other appropriate party) on such date and, if such Lender has
not in fact made the Lender Required Payment to the Agent, the Company, if
applicable, or such Lender shall, on demand, repay to the Agent the amount so
made available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the Agent
until the date the Agent recovers such amount at a rate per annum equal to the
Federal Funds Rate for such day (as determined by the Agent). Any Lender that
fails to make a Lender Required Payment upon receipt of notice therefor, shall
not be entitled to vote on any matters that it otherwise would be entitled to
vote on under this Agreement until it makes such payment.
Notwithstanding anything to the contrary contained herein, any lender,
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPFV")
the option to fund all or any part of any Loan that such Granting Lender would
otherwise be obligated to fund pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPFV to fund any Loan, and
(ii) if an SPFV elects not to exercise such option or otherwise fails to fund
all or any part of such Loan, the Granting Lender shall be obligated to fund
such Loan pursuant to the terms hereof. The funding of a Loan by an SPFV
hereunder shall utilize the Revolving Credit Commitment of the Granting Lender
to the same extent, and as if, such Loan were funded by such Granting Lender.
Each party hereto hereby agrees that no SPFV shall be liable for any indemnity
or payment under this Agreement for which a Lender would otherwise be liable for
so long as, and to the extent, the Granting Lender provides such indemnity or
makes such payment. Notwithstanding anything to the contrary contained in this
Agreement, any SPFV may disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or Loans to any rating agency, commercial
paper, dealer or provider of any surety or guarantee to such SPFV. This Section
may not be amended without the prior written consent of each Granting Lender,
all or any part of whose Loan is being funded by an SPFV at the time of such
amendment. No SPFV shall be entitled to any indemnities or additional costs or
other amounts referred to in Subsection 2.8.6 (Additional Costs, Unavailability,
Etc.) or breakage pursuant to Subsection 2.10.2 (Breakage) or similar payments
except to the extent it shares in payments made to the Granting Lender pursuant
to entitlements of the Granting Lender hereunder.
3.3 COMPANY REQUIRED PAYMENT.
Unless the Agent shall have been notified by the Company in writing
prior to the date on which the Company is scheduled to make a payment to the
Agent for the account of one or more of the Lenders or the Issuing Bank (such
payment being the "Company Required Payment"), which notice shall be effective
upon receipt, that the Company does not intend to make the Company Required
Payment to the Agent, the Agent may assume that the Company Required Payment has
been made and may, in reliance upon such assumption (but shall not be required
to), make such amount available to the Lenders entitled thereto on such date. If
the Company has not in fact made the Company Required Payment to the Agent, the
recipient(s) of such payment shall, on demand, repay to the Agent the amount so
made available together with interest in respect of each day during the period
commencing on the date such amount was so made available by the Agent until the
date the Agent recovers such amount at a rate per annum equal to the Federal
Funds Rate for such day (as determined by the Agent).
3.4 TAX FORMS.
At least five (5) Business Days prior to the first date on which
interest or fees are payable under this Agreement for the account of any Lender,
each Lender that is not incorporated or organized under the laws of the United
States of America or a state thereof shall deliver to each of the Company and
the Agent two duly completed copies of United States Internal Revenue Service
Form W-9, 4224 or 1001, or other applicable form prescribed by the Internal
Revenue Service of the United States, certifying in either case that such Lender
is entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes, or are
subject to such tax at a reduced rate
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under an applicable tax treaty, or Form W-8 or other applicable form or a
certificate of the Lender indicating that no such exemption or reduced rate is
allowable with respect to such payments. Each Lender which so delivers a Form
W-8, W-9, 4224 or 1001 further undertakes to deliver to each of the Company and
the Agent two additional copies of such form (or a successor form) on or before
the date that such form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent form so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Agent, either certifying that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes or are
subject to such tax at a reduced rate under an applicable tax treaty or stating
that no such exemption or reduced rate is allowable. The Agent shall be entitled
to withhold United States federal income taxes at the full withholding rate
unless the Lender establishes an exemption or at the applicable reduced rate as
established pursuant to the above provisions.
3.5 TAXES.
3.5.1 PAYMENTS FREE OF TAXES. Any and all payments by or on account of
any obligation of the Company hereunder or under any other Loan Document shall
be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, provided that if the Company shall be required
by applicable law to deduct any Indemnified Taxes (including any Other Taxes)
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Agent, Lender or Issuing Bank,
as the case may be, receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Company shall make such deductions
and (iii) the Company shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
3.5.2 PAYMENT OF OTHER TAXES BY THE COMPANY. Without limiting the
provisions of Subsection 3.5.1 above, the Company shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
3.5.3 INDEMNIFICATION BY THE COMPANY. The Company shall indemnify the
Agent, each Lender and the Issuing Bank, within 10 days after demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by the Agent, such Lender or the
Issuing Bank, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Company
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by a Lender or the Issuing Bank (with a copy to the Agent), or by the Agent on
its own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
3.5.4 EVIDENCE OF PAYMENTS. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Company to a Governmental Authority, the
Company shall deliver to the Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment reasonably
satisfactory to the Agent.
3.5.5 STATUS OF LENDERS. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Company is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Company (with a copy to the Agent), at the
time or times prescribed by applicable law or reasonably requested by the
Company or the Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by the Company or the Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Company or the Agent
as will enable the Company or the Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Company is resident for tax purposes in the United States of America, any
Foreign Lender shall deliver to the Company and the Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Company or the Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable:
(a) duly completed copies of Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to which the
United States of America is a party,
(b) duly completed copies of Internal Revenue Service Form
W-8ECI,
(c) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank" within
the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder"
of the Company within the meaning of section 881(c)(3)(B) of the Code, or (C) a
"controlled foreign corporation" described in section 881(c)(3)(C) of the Code
and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or
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(d) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Company to determine the withholding
or deduction required to be made.
3.5.6 TREATMENT OF CERTAIN REFUNDS. If the Agent, a Lender or the
Issuing Bank determines, in its sole discretion, that it has received a refund
of any Taxes or Other Taxes as to which it has been indemnified by the Company
or with respect to which the Company has paid additional amounts pursuant to
this Section, it shall pay to the Company an amount equal to such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Company under this Section with respect to the Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Agent, such
Lender or the Issuing Bank, as the case may be, and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such
refund), provided that the Company, upon the request of the Agent, such Lender
or the Issuing Bank, agrees to repay the amount paid over to the Company (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Agent, such Lender or the Issuing Bank in the event the Agent,
such Lender or the Issuing Bank is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the
Agent, any Lender or the Issuing Bank to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the
Company or any other Person.
ARTICLE 4
LETTERS OF CREDIT
4.1 LETTERS OF CREDIT.
4.1.1 COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the
requirements set forth below, the Company may use a portion of the Revolving
Credit Commitment, which portion shall not exceed Fifty Million Dollars
($50,000,000) (the "Letter of Credit Sublimit") for the purpose of causing the
Issuing Bank to issue standby Letters of Credit for the account of the Company,
provided that (i) the Company executes and delivers a letter of credit
application and reimbursement agreement in a form acceptable to the Issuing Bank
and complies with any conditions to the issuance of such Letter of Credit
(including the payment of any applicable fees) set forth therein; (ii) the
Issuing Bank approves the form of such Letter of Credit; (iii) such Letter of
Credit bears an expiration date not later than the Revolver Maturity Date; (iv)
the Issuing Bank receives a request for issuance three (3) Business Days prior
to the date of issuance (unless the Issuing Bank, in its sole and absolute
discretion, agrees to shorter notice in any instance) and (v) the conditions set
forth in Section 5.2 (Requirements for Each Loan/Letter of Credit) are satisfied
as of the date of the issuance of such Letter of Credit. The letters of credit
listed on Schedule 4.1 hereto shall be Letters of Credit under this Agreement.
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4.1.2 LIMITATION ON AMOUNT. The Issuing Bank shall not be obligated or
permitted under this Section 4.1 to issue any Letter of Credit for the account
of the Company to the extent that the sum of (i) the amount that would be
available to be drawn under the proposed Letter of Credit plus (ii) the sum of
all amounts available to be drawn under outstanding Letters of Credit plus (iii)
any Unreimbursed Drawings would exceed the lesser of (a) the Letter of Credit
Sublimit and (b) the Available Commitment.
4.1.3 OBLIGATIONS ABSOLUTE. The Company's obligations under this
Section 4.1 (including any obligations to repay draws under Letters of Credit
issued hereunder) shall be absolute and unconditional under any and all
circumstances and irrespective of the occurrence of any Potential Event of
Default or Event of Default or any condition precedent whatsoever or any setoff,
counterclaim or defense to payment which the Company may have or have had
against the Issuing Bank, the Agent, any Lender or any beneficiary of a Letter
of Credit. The Company further agrees that the Issuing Bank, the Agent and the
Lenders shall not be responsible for, and the Company's reimbursement
obligations shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even if such documents
should in fact prove to be in any or all respects invalid, fraudulent or forged,
or any dispute between or among the Company, the beneficiary of any Letter of
Credit or any financing institution or other party to which any Letter of Credit
may be transferred or any claims or defenses whatsoever of the Company against
the beneficiary of any Letter of Credit or any such transferee. The Issuing
Bank, the Agent and the Lenders shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit. Any action
taken or omitted by the Issuing Bank, the Agent or any Lender under or in
connection with each Letter of Credit and the related drafts and documents, if
done in good faith and without willful misconduct or gross negligence on the
part of the Issuing Bank, the Agent or the Lenders, shall be binding upon the
Company and shall not result in any liability on the part of the Issuing Bank,
the Agent or any Lender to the Company.
4.1.4 RELIANCE BY ISSUING BANK. The Issuing Bank shall be entitled to
rely, and shall be fully protected in relying upon, any Letter of Credit, draft,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it to be genuine and correct and believed by it to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the Issuing Bank and the Agent.
4.1.5 FEES. The Company shall pay to the Agent for the account of the
RC Lenders a fee equal to the product of (i) the Applicable Margin which would
apply to the face amount of the Letter of Credit if it were part of the
Revolving Loan and was bearing interest at a rate based on Adjusted LIBOR
multiplied by (ii) the face amount of each Letter of Credit (the "Letter of
Credit Fees"). In addition, the Issuing Bank shall receive a fronting fee equal
to 1/8 of 1% per annum of the face amount of all outstanding Letters of Credit
("Fronting Fee"). All
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Letter of Credit Fees and Fronting Fees shall be payable quarterly in arrears on
each Quarterly Payment Date based on the number of days during each quarter that
a Letter of Credit is outstanding during such quarter (calculated on the basis
of a 360-day year). The Company shall also pay to the Issuing Bank all of the
Issuing Bank's standard fees and charges for the opening, amendment,
modification, presentation or cancellation of a Letter of Credit and otherwise
in respect of a Letter of Credit and shall execute all of the Issuing Bank's
standard agreements in connection with the issuance of the Letter of Credit.
4.1.6 PARTICIPATION BY RC LENDERS. The Issuing Bank shall notify the
Agent promptly upon receipt of notice of an intended draw under a Letter of
Credit, whereupon the Agent shall give written, telecopied or telegraphic notice
to each of the other RC Lenders of its pro rata share of such draw and the
scheduled date thereof. After receipt of such notice, and whether or not an
Event of Default or Potential Event of Default then exists, each RC Lender shall
make such arrangements as are necessary to assure that its share of such draw
shall be immediately available (in U.S. dollars) to the Agent no later than noon
(Charlotte, NC time), on the date specified in the Agent's notice, which shall
be no earlier than the day after the date the Agent's notice is given. Any
amount paid by Agent and RC Lenders pursuant to a draw made under a Letter of
Credit shall constitute a borrowing under the Available Commitment, provided
that if an Event of Default or Potential Event of Default exists at the time of
a draw, the Company shall immediately reimburse the amount of such draw to the
Agent for the benefit of the RC Lenders.
To effectuate the purposes of this Subsection 4.1.6, effective
immediately upon the issuance of each Letter of Credit and without further
action on the part of the Issuing Bank, the Issuing Bank shall be deemed to have
granted to each RC Lender, and each RC Lender shall be deemed to have
irrevocably purchased and received from the Issuing Bank, without recourse or
warranty, an undivided interest and participation in such Letter of Credit to
the extent of each RC Lender's percentage of the Revolving Credit Commitment.
Further, each Lender acknowledges and agrees that it shall be absolutely liable,
to the extent of its percentage of the Revolving Credit Commitment, to fund on
demand or reimburse the Issuing Bank on demand for the amount of each draft paid
by the Issuing Bank under each Letter of Credit to the extent that such amount
is not immediately reimbursed by the Company.
4.1.7 STANDARD OF CONDUCT. The Issuing Bank shall be entitled to
administer each Letter of Credit in the ordinary course of business and in
accordance with its usual practices, modified from time to time as it deems
appropriate under the circumstances, and shall be entitled to use its discretion
in taking or refraining from taking any action in connection herewith as if it
were the sole party involved. Any action taken or omitted to be taken by the
Issuing Bank under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence or willful misconduct, shall not
create for the Issuing Bank any resulting liability to any other Lender.
4.1.8 CASH COLLATERAL ACCOUNT. In the event that (a) the excess of (i)
the amount of the Revolving Credit Commitment over (ii) the amount of
outstanding Revolving Loans and Swing Loans is less than (b) the face amount of
outstanding Letters of Credit and Unreimbursed Drawings for any reason (whether
because the Revolving Credit Commitment has
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been reduced or terminated or otherwise), the Company shall forthwith pay to the
Agent an amount equal to the excess of the amount described in clause (b) above
over the amount described in clause (a) above. Such amount shall first be
applied against Unreimbursed Drawings and the remainder shall be maintained by
the Agent in an interest bearing cash collateral account in the name of and for
the benefit of the Agent and the Lenders to secure the repayment of Company's
obligation to reimburse the Lenders for drafts drawn or which may be drawn under
outstanding Letters of Credit until such time as all outstanding Letters of
Credit have expired or been cancelled.
4.1.9 OBLIGATIONS SECURED. The obligations of the Company to the
Issuing Bank, the Agent and the Lenders in respect of Letters of Credit shall be
guaranteed pursuant to the Loan Documents and shall be secured by the
Collateral.
ARTICLE 5
CONDITIONS TO FUNDINGS AND
ISSUANCE OF LETTERS OF CREDIT
5.1 CONDITIONS TO INITIAL FUNDING. The obligation of the Lenders to make the
initial Loans or the Issuing Bank to issue the initial Letters of Credit
pursuant to this Agreement shall be subject to the fulfillment, to the
satisfaction of the Lenders and Issuing Bank (unless otherwise specified), of
the following conditions (the date of such fulfillment being the "Effective
Date"). The making of any Loan by any Lender on the Effective Date or the
issuance of any Letters of Credit by the Issuing Bank shall constitute evidence
of such Lender's or Issuing Bank's satisfaction with the fulfillment thereof.
5.1.1 EXECUTION OF THIS AGREEMENT. This Agreement shall have been duly
executed by the Company, each Lender, each Issuing Bank and the Agent.
5.1.2 THE NOTES. The Company shall have delivered duly executed Notes
to each of the Lenders that requests a Note.
5.1.3 SECURITY AGREEMENt. The Company and each Subsidiary of the
Company shall have executed and delivered to the Agent a Security Agreement (as
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof, the "Security Agreement") in substantially the form annexed
to this Agreement as Exhibit E, together with such Uniform Commercial Code
financing statements as are necessary to perfect the security interests created
by such Security Agreement, provided, that fixture filings will only be
delivered to the extent that the Company is able to provide the necessary
property descriptions without undue difficulty unless the Agent otherwise
requests.
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5.1.4 GUARANTY AND SURETYSHIP AGREEMENt. Each Subsidiary of the Company
shall have executed and delivered to the Agent a Guaranty and Suretyship
Agreement (as amended, modified or supplemented from time to time the
"Subsidiary Suretyship") in substantially the form annexed to this Agreement as
Exhibit F.
5.1.5 PLEDGE AGREEMENTS.
(a) SPC shall own directly all of the common stock of the
Company and shall have executed and delivered to the Agent a Pledge Agreement
(as the same may be amended, modified or supplemented from time to time, the
"SPC Pledge") in substantially the form and annexed to this Agreement as Exhibit
G, together with the stock certificates, assignment powers and financing
statements required thereunder.
(b) The Company shall own directly all of the capital stock of
the Subsidiaries specified as being owned by it on Schedule 10.1 hereto and the
Company shall have executed and delivered to the Agent a Pledge Agreement (as
the same may be amended, modified or supplemented from time to time, the
"Company Pledge") in substantially the form annexed to this Agreement as Exhibit
H, together with the stock certificates, assignment powers and financing
statements required thereunder.
(c) The Subsidiaries of the Company shall own directly all of
the capital stock of the Subsidiaries specified as being owned by them on
Schedule 10.1 hereto and all of the partnership interests in Susquehanna
Adelphia Business Solutions, Mt. Diablo Group and Senior Road Tower Partnership
reflected on said Schedule 10.1, and such Subsidiaries shall have executed and
delivered to the Agent a Pledge Agreement (as amended, modified and supplemented
from time to time, "Subsidiary Pledge") in substantially the form annexed to
this Agreement as Exhibit I, together with the stock certificates, assignment
powers and financing statements required thereunder.
(d) The shareholders of the Company and the Company's
Subsidiaries other than SPC, the Company, its Subsidiaries and Comcast (and
other than the owners of the non-voting stock of Susquehanna Data Services,
Inc., Susquehanna Cable, and Susquehanna Radio) (collectively, the "Other
Shareholders") shall own directly the capital stock and/or partnership interests
of the Company and its Subsidiaries specified as being owned by them on Schedule
10.1.
(e) Xxxxxxx York, Inc. shall own directly the capital stock of
the Subsidiaries of the Company specified as being owned by it on Schedule 10.1
hereto.
5.1.6 SUBORDINATION AGREEMENTS.
(a) SPC shall have executed and delivered to the Agent a
Subordination Agreement (as amended, modified or supplemented from time to time
"SPC Subordination Agreement") in substantially the form and annexed to this
Agreement as Exhibit J.
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(b) Comcast shall have executed and delivered to the Agent a
Subordination Agreement (as amended, modified or supplemented from time to time,
the "Comcast Subordination Agreement") in substantially the form annexed to this
Agreement as Exhibit K.
5.1.7 TRADEMARK COLLATERAL AGREEMENT. The Company and each Subsidiary
shall have executed and delivered to the Agent a Trademark Collateral Agreement
(as amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof, the "Trademark Collateral Agreement") in form and
substance satisfactory to the Administrative Agent, if applicable, together with
such notices for filing in the United States Patent Trademark Office and such
Uniform Commercial Code financing statements as are necessary to perfect the
security interests created thereby.
5.1.8 REPAYMENT OF EXISTING INDEBTEDNESS. All Indebtedness under that
certain
Credit Agreement, dated as of May 12, 1999, as amended, among the
Company, Wachovia as agent and the lenders referred to therein, (the "Existing
Facilities") shall have been repaid in full concurrently with the initial
advances under this Agreement.
5.1.9 PAYMENT OF FEES AND COSTS. The Company shall have paid all of the
fees required to be paid to the Agent and other Lenders on the Effective Date
and all of the fees and disbursements of counsel for the Agent in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the other documents contemplated herein.
5.1.10 NO DEFAULT. Before and after giving effect to the Indebtedness
to be incurred hereunder, there shall exist no Event of Default or Potential
Event of Default under this Agreement.
5.1.11 CORRECTNESS OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement or otherwise made in
writing in connection with this Agreement, whether made by SPC, the Company, any
Subsidiary of the Company or any other Person on behalf of SPC, the Company or
any of the Company's Subsidiaries, shall be true and correct with the same
effect as though such representations and warranties were made to Lenders or
Agent on behalf of Lenders on and as of the Effective Date.
5.1.12 FINANCIAL STATEMENTS; PROJECTIONS.
(a) The Lenders shall have received unaudited financial
statements of the Company and its Subsidiaries for the fiscal year ended
December 31, 2003 in form and substance satisfactory to the Agent.
(b) The Lenders shall have received a final set of operating
projections for the Company and its Subsidiaries, dated no more than 120 days
prior to the Effective Date, for the period ending on December 31, 2012, which
shall be in reasonable detail, shall be based on the closing capital structure
of the Company and its Subsidiaries, shall reflect the
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consummation of the transactions contemplated by this Agreement, and shall be in
form and substance satisfactory to the Agent.
5.1.13 LEGAL PROCEEDINGS. All corporate, partnership and other legal
proceedings and all instruments in connection with the transactions contemplated
by this Agreement shall be satisfactory in form and substance to the Agent and
its counsel, and the Agent and its counsel shall have received all information
and copies of all documents and records of all corporate and partnership
proceedings, which the Agent or its counsel has requested, such documents where
appropriate to be certified by proper corporate, partnership, governmental or
other authorities.
5.1.14 CONSENTS AND APPROVALS. All material corporate, governmental and
judicial consents and approvals and waivers (including, without limitation, any
requisite FCC or PUC approvals) and third party consents (including Comcast) and
approvals (except for those consents, approvals and waivers not required by the
Agent as a condition to closing) necessary in connection with this Agreement and
the Loans, or other related transactions, shall have been obtained and become
final or Final Orders, as applicable, and shall remain in full force and effect,
without the imposition of any conditions that are not acceptable to the Lenders.
It is understood that certain third party consents in connection with the pledge
of certain assets such as franchises and minority partnership interests are
being delivered on a commercially reasonable basis.
5.1.15 MATERIAL ADVERSE CHANGE OR EFFECT; COMPLIANCE WITH LAW.
(a) No Material Adverse Change shall have occurred since
December 31, 2002.
(b) There shall be no material action, suit, investigation,
litigation or proceeding pending or, to the knowledge of the Company, threatened
in a court or before any arbitrator or governmental instrumentality (not covered
by insurance) against the Company or its Subsidiaries except for the action
described on Schedule 10.5.
(c) The Company and its Subsidiaries shall be in substantial
compliance with all applicable laws, including environmental laws.
5.1.16 OPINIONS OF COUNSEL. The Agent shall have received the following
favorable opinions of counsel as to the transactions contemplated hereby
addressed to the Agent, the Issuing Bank and the Lenders and dated as of the
Effective Date, in form and content satisfactory to the Agent, the Issuing Bank
and the Lenders:
(i) Xxxxx X. Xxxxxx, counsel to SPC, the Company, and
the Company's Subsidiaries, which opinion shall address, among
other things, the Senior Subordinated Indentures;
(ii) Barley Xxxxxx Xxxxx and Xxxxx, counsel to SPC,
the Company and the Company's Subsidiaries;
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(iii) Xxxx and Marks, FCC counsel to the Company and
its Subsidiaries with respect to broadcast matters; and
(iv) Xxxxxxxxxx and Xxxxx, FCC counsel to the Company
and its Subsidiaries with respect to cable television matters.
5.1.17 OFFICERS' COMPLIANCE CERTIFICATE. There shall have been
delivered to the Agent an Officers' Compliance Certificate in substantially the
form annexed to this Agreement as Exhibit L dated as of the Effective Date.
5.1.18 OFFICERS' CERTIFICATE. There shall have been delivered to the
Agent an Officers' Certificate certifying to compliance with the indebtedness
covenants in the Senior Subordinated Indentures and the senior status of the
Loans relative to the Senior Subordinated Notes.
5.1.19 GOOD STANDING. The Agent shall have received (a) good standing
certificates for each of SPC, the Company and the Company's Subsidiaries,
evidencing its good standing under the laws of the state of its incorporation or
formation and (b) good standing certificates for each of the Company and the
Company's Subsidiaries, evidencing its good standing under the laws of the
states in which it is required to qualify to do business.
5.1.20 LIEN SEARCHES. The Company shall have delivered to the Agent
Uniform Commercial Code, tax and judgment lien searches of a recent date, in
such offices as are acceptable to the Agent, with respect to the Company and
each of the Company's Subsidiaries, showing no Liens except Permitted Liens.
5.1.21 EVIDENCE OF INSURANCE. The Agent shall have received evidence of
the insurance required by Section 8.15 (Insurance) below.
5.1.22 OTHER REQUIREMENTS. The Agent shall have received such
additional information and material as the Agent or any Lender may reasonably
request.
5.2 REQUIREMENTS FOR EACH LOAN/LETTER OF CREDIT.
The Lenders shall not be required to make any Loans to the Company and
the Issuing Bank shall not be required to issue any Letters of Credit unless the
following conditions are fulfilled to the satisfaction of Agent:
5.2.1 NO DEFAULT. There shall not, either prior to or after giving
effect to each such funding or Letter of Credit, exist an Event of Default or
Potential Event of Default;
5.2.2 REQUEST FOR ADVANCE/LETTER OF CREDIT. The Agent shall have timely
received a borrowing notice pursuant to Section 2.6 (Borrowing Notice) or
request for a Letter of Credit pursuant to Subsection 4.1.1 (Commitment to Issue
Letters of Credit). Each request for a Loan that individually or together with
other related Loans exceeds $50,000,000 for the purpose of effecting an
Acquisition or purchasing a minority interest in a Subsidiary shall be
accompanied by the Officers' Certificate referred to in Subsection 2.8.3
(Officers' Certificate);
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5.2.3 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of SPC, the Company, its Subsidiaries, and Comcast made in the Loan
Documents shall be true and correct in all material respects as of the date of
each such Loan or Letter of Credit (both immediately prior to and after giving
effect to said Loan or Letter of Credit) as if made on and as of such date,
except to the extent that changes in the facts and conditions on which such
representations and warranties are based do not result from an act or omission
that constitutes a breach of any covenant set forth in this Agreement or in any
other Loan Document and have been disclosed to the Lenders in writing;
5.2.4 MATERIAL ADVERSE CHANGE. No Material Adverse Change shall have
occurred since the date of this Agreement;
5.2.5 MATERIAL ADVERSE EFFECT. No event shall have occurred and no fact
or condition shall exist, including, without limitation, any action, suit,
investigation, litigation or proceeding pending or threatened in a court or
before any arbitrator or governmental instrumentality, that could have a
Material Adverse Effect;
5.2.6 SENIOR SUBORDINATED NOTES. The obligation of the Company
hereunder to repay each such Loan or Letter of Credit shall be senior to any
obligation of the Company to repay the Senior Subordinated Notes (if the same
are outstanding); and
5.2.7 MISCELLANEOUS. The Agent shall have received such additional
information and material as the Agent may reasonably request, including such
additional agreements or certifications executed by SPC, the Company or any
Subsidiary of the Company as the Agent may reasonably request.
5.2.8 METHOD OF CERTIFYING CERTAIN CONDITIONS. The request for, and
acceptance of, each Loan and each Letter of Credit by the Company shall be
deemed a representation and warranty by the Company that the conditions
specified in Subsections 5.2.1 (No Default), 5.2.3 (Representations and
Warranties), 5.2.4 (Material Adverse Change), 5.2.5 (Material Adverse Effect)
and 5.2.6 (Senior Subordinated Notes) have been satisfied.
ARTICLE 6
REPORTING REQUIREMENTS AND NOTICES
The Company covenants that from the date of this Agreement so long as
any of the Senior Secured Obligations remain unpaid, any Letters of Credit
remain outstanding, the Lenders have an unexpired Commitment to lend hereunder
or the Issuing Bank has an unexpired commitment to issue Letters of Credit
hereunder, it shall comply with each of the reporting and notice requirements
set forth in this Article 6.
6.1 FINANCIAL DATA AND REPORTING REQUIREMENTS; NOTICE OF CERTAIN EVENTS.
6.1.1 DELIVERY OF QUARTERLY FINANCIAL STATEMENTS. As soon as
practicable and in any event within sixty (60) days after the close of each of
the first three quarters of each fiscal year of the Company, the Company shall
deliver to the Lenders an unaudited Consolidated balance sheet, statement of
income and changes in retained earnings, and statement of cash flows
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of the Company and its Subsidiaries as at the end of and for (i) the period
commencing at the end of the previous fiscal year and ending with such quarter
and (ii) the period commencing at the end of the previous fiscal quarter and
ending with such currently reported quarter, setting forth in comparative form
the corresponding figures for the appropriate periods of the preceding fiscal
year, all in reasonable detail and certified by the Treasurer or a Vice
President of the Company to be true and complete, subject to normal recurring
year-end audit adjustments, it being understood that footnotes may be omitted,
provided that any information or document that is required to be furnished by
this Subsection 6.1.1 that is filed with the SEC via the XXXXX Filing System
shall be deemed to be delivered.
6.1.2 DELIVERY OF ANNUAL FINANCIAL STATEMENTS; ACCOUNTANTS'
CERTIFICATION. As soon as practicable and in any event within one hundred twenty
(120) days after the close of each fiscal year of the Company, the Company shall
deliver to the Lenders,
(a) an audited Consolidated balance sheet, statement of income
and changes in retained earnings, and statement of cash flows of the Company and
its Subsidiaries, as at the end of and for the fiscal year just closed in
reasonable detail and certified (without any qualification, modification or
exception) by nationally-recognized independent certified public accountants
selected by the Company and satisfactory to the Agent, provided that any
information or document that is required to be furnished by this clause (a) that
is filed with the SEC via the XXXXX Filing System shall be deemed to be
delivered, and
(b) concurrently with such financial statements described in
clause (a) above, (x) a written statement signed by such accountants to the
effect that in making the examination necessary for their certification of the
financial statements referred to in clause (a) above, they have not obtained any
knowledge of the existence of any Event of Default or any Potential Event of
Default, or, if such accountants shall have obtained from such examination any
such knowledge, they shall disclose in such written statement the Event of
Default or Potential Event of Default.
6.1.3 DELIVERY OF ANNUAL BUDGET. As soon as practicable, and in any
event within sixty (60) days after the close of each fiscal year of the Company,
the Company shall deliver to the Lenders an annual budget for the next fiscal
year, approved by management of the Company.
6.1.4 DELIVERY OF OFFICERS' CERTIFICATES AS TO NO DEFAULT. As soon as
practicable after the close of each quarter of each fiscal year of the Company
and in any event no later than the date on which financial statements are
required to be delivered for each such quarter or year, as provided in
Subsections 6.1.1 or 6.1.2, the Company shall deliver to the Lenders an
Officers' Certificate stating that there existed during such quarter and, in the
case of the certificate delivered after the fourth quarter, such fiscal year, no
Event of Default and no Potential Event of Default or if any such Event of
Default or Potential Event of Default existed, specifying the nature thereof,
the period of existence thereof and what action the Company proposes to take, or
has taken, with respect thereto.
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6.1.5 DELIVERY OF OFFICERS' COMPLIANCE CERTIFICATE. Together with each
quarterly report or annual report of the Company required under Subsections
6.1.1 and 6.1.2 above the Company shall deliver to the Lenders an Officers'
Compliance Certificate which shall include reasonably detailed calculations.
6.1.6 AUDITORS' REPORTS. Promptly upon receipt, the Company shall
deliver to the Lenders copies of all financial reports or written
recommendations, if any, submitted to the Company or any of its Subsidiaries by
its auditors in connection with each annual or interim audit or examination of
its books by such auditors, provided that any financial reports or written
recommendations that are required to be furnished by this subsection 6.1.6 that
are filed with the SEC via the XXXXX Filing System shall be deemed to be
delivered.
6.1.7 OFFICERS' CERTIFICATE FOR RATE AND FEE CALCULATIONS. The Company
shall deliver the Officers' Certificates as required by Subsection 2.8.3
(Officers' Certificate) above at the times specified therein.
6.1.8 ESOP INFORMATION. Annually at the time of delivery of the
financial statements pursuant to Subsection 6.1.2 above, the Company shall
provide the following information:
(a) The consolidated amount of the ESOP Compensation Expense
relative to the ESOP;
(b) The total amount of ESOP Compensation Expense (broken down
by cash and non-cash components, if applicable) allocated to the Company;
(c) The total amount of ESOP Compensation Expense allocated to
The Pfaltzgraff Co.;
(d) The total amount of ESOP Compensation Expense allocated to
SPC;
(e) The total amount of direct operating expenses of the ESOP;
(f) The amount of payments made by SPC to the Company in
respect of debt service prepayments on the ESOP Loan;
(g) The total amount of ESOP Repurchase Payments.
The Company shall, at the same time, certify that the allocations and payments
made with respect to the ESOP were made in compliance with the ESOP Sharing
Agreement.
6.1.9 REPORTS TO SENIOR SUBORDINATED NOTEHOLDERS, SEC FILINGS, ETC.
Promptly upon receipt or transmission thereof, as applicable, the Company shall
deliver to the Agent and the Lenders:
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(a) at any time when SPC, the Company or any of the Company's
Subsidiaries is subject to the reporting requirements of the Securities Exchange
Act of 1934, all letters of comment or material correspondence sent to SPC, the
Company or any of the Company's Subsidiaries by any securities exchange or the
Securities and Exchange Commission in relation to the affairs of SPC, the
Company or any of the Company's Subsidiaries,
(b) all regular and periodic reports and all registration
statements and prospectuses, if any, filed by SPC, the Company or any of the
Company's Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental authority succeeding to any of its
functions,
(c) financial statements, reports, notices and proxy
statements sent or made available generally by SPC, the Company or any of the
Company's Subsidiaries to the Senior Subordinated Noteholders or other lenders
to such Persons, (if any) and their other respective unit holders, bondholders
or security holders (or any trustee or other representative of any of the
foregoing) and any non-routine notices or other non-routine correspondence from
such Senior Subordinated Noteholders, unit holders, bondholders or security
holders (or trustee or other representative of such Persons), and
(d) all press releases and other statements made available by
SPC, the Company or any of the Company's Subsidiaries to the public concerning
material developments in their respective businesses;
provided that any reports, registration statements, prospectuses, press releases
and other statements that are required to be furnished by clause (b) or (d) that
are filed with the SEC via the XXXXX Filing System shall be deemed to be
delivered.
6.2 NOTICE OF DEFAULTS, DISPUTES AND OTHER MATTERS.
The Company shall give written notice to Agent, the Issuing Bank and
the Lenders of the following matters promptly upon (and in any event within
three (3) Business Days of) any officer of the Company obtaining knowledge
thereof:
6.2.1 CERTAIN ORDERS BY PUC. Any citation, order to show cause, or
other legal process, order, notice, protest or reconsideration affecting the
Company or any of its Subsidiaries or directing the Company or any of its
Subsidiaries to become a party to or to appear at any proceeding or hearing by
or before any governmental instrumentality (including without limitation the
FCC, any PUC or other instrumentality which shall have granted to any such
Person a Franchise) which, if adversely determined, could, either individually
or in the aggregate, have a Material Adverse Effect and include with such notice
a copy of any such citation, order to show cause or other legal process, notice
order or protest;
6.2.2 LICENSE OR FRANCHISE REVOCATION. Any (a) actual or threatened
denial, refusal or failure to renew or revocation or material adverse
modification by the FCC of any FCC License or by any PUC or any other
governmental instrumentality of any other Franchise, (except the routine,
scheduled expiration of FCC Licenses and any PUC Franchises for which
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applications for renewal are timely and properly filed with the appropriate
governmental agency unless, at any time with respect thereto, a competing
application or petition to deny, or other challenge is filed against any such
renewal application), or (b) dispute or other action with respect to any
Franchise which if resolved adversely could have a Material Adverse Effect, or
(c) notice from the FCC or any PUC of apparent liability for forfeiture or of
the imposition of any fines or penalties or forfeitures in the amount or amounts
of $50,000 or more in any twelve (12) month period, or (d) written notices or
written requests by other parties with respect to any of the foregoing or with
respect to any proceeding or hearing which might reasonably be expected to
result in any of the foregoing which, either individually or in the aggregate,
could have a Material Adverse Effect;
6.2.3 CERTAIN DISPUTES. Any dispute concerning, or any threatened
non-renewal or modification of, any agreement to which the Company or any of its
Subsidiaries is a party, including, without limitation, any lease for or
easement over real property, any lease for personal property, any pole
attachment agreement or any programming agreement, if such dispute or threatened
non-renewal or modification, either individually or in the aggregate, could have
a Material Adverse Effect;
6.2.4 CERTAIN LITIGATION. Any actions, proceedings or claims commenced
or asserted against SPC, the Company or any of the Company's Subsidiaries in
which the amount involved is $100,000 or more and which is not fully covered by
insurance, or which, if not solely a claim for monetary damages, could
reasonably be expected to, if adversely determined, have a Material Adverse
Effect;
6.2.5 GOVERNMENTAL REPORTS. All non-routine material reports, requests
or correspondence filed by SPC (except for information relating only to The
Pfaltzgraff Co.), the Company or any of the Company's Subsidiaries with the FCC
or any PUC, court or other governmental agency relative to the operations of
Company or any of its Subsidiaries and all material, non-routine correspondence
or material, non-routine official notices received by SPC (except for
information relating only to The Pfaltzgraff Co.), the Company or any of the
Company's Subsidiaries from any governmental agency which regulates all or any
part of the operations of any such entity;
6.2.6 COMCAST AGREEMENT. Copies of any non-routine notices under the
Comcast Agreement including any notices relating to buy/sell provisions and any
notices of amendment required by Subsection 8.26.1 (Limitations on Changes to
Certain Agreements);
6.2.7 EVENTS OF DEFAULT. The occurrence of any Event of Default or
Potential Event of Default;
6.2.8 CONTRACT DEFAULT. The occurrence of any event which constitutes,
or with notice or lapse of time or both, would constitute, a default or an event
of default under any contractual obligations of the Company or any of its
Subsidiaries which, if adversely determined, could, either individually or in
the aggregate, have a Material Adverse Effect;
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6.2.9 CROSS DEFAULT. Any notice given to the Company or any of its
Subsidiaries by any Person or any other action taken by any Person with respect
to a claimed default or event or condition of the type referred to in
Subsections 9.1.3 (Cross Default to Indebtedness) or 9.1.4 (Other
Cross-Defaults) below;
6.2.10 MATERIAL ADVERSE CHANGE. Any Material Adverse Change or the
existence of any facts or circumstances or the occurrence or failure to occur of
any event which could have a Material Adverse Effect;
6.2.11 REPRESENTATIONS AND WARRANTIES. Any changes in facts or
circumstances on which the representations and warranties set forth in this
Agreement are made which makes such representations and warranties false or
misleading in any material respect;
6.2.12 EQUITY ISSUANCE. Any issuance by the Company or a Subsidiary of
capital stock or other equity, which issuance may be made only to the extent not
prohibited by this Agreement; and
6.2.13 PURCHASE OF MINORITY INTERESTS. Any purchase of any minority
interests in any Subsidiaries, together with an Officers' Compliance Certificate
prepared on a Pro Forma Basis, showing compliance with the financial covenants
set forth in this Agreement after giving effect to such purchase.
6.3 THE ESOP AND ERISA MATTERS.
6.3.1 THE ESOP. Promptly upon receipt thereof, the Company shall
deliver to each Lender a copy of any ruling or non-routine correspondence from
the Internal Revenue Service respecting the tax status of the ESOP and promptly
upon the Company having knowledge thereof, the Company shall deliver notice of
any event or condition which could cause the ESOP to lose its tax-qualified
status. In addition, the Company shall provide on an annual basis the
information required by Subsection 6.1.8 (ESOP Information) above.
6.3.2 ANNUAL REPORTS. Upon request of any Lender, the Company shall
deliver to such Lender each annual report filed with respect to the ESOP or any
Plan with the Internal Revenue Service, Secretary of Labor or the PBGC; and all
reports delivered to any such Person from its actuary with respect to any Plan;
and the most recent actuarial report for each Employee Pension Plan.
6.3.3 OTHER ERISA INFORMATION. The Company shall deliver to each Lender
all material non-routine correspondence with the PBGC, Secretary of Labor or any
representative of the Internal Revenue Service with respect to any Plan or the
ESOP.
6.3.4 REPORTABLE EVENTS, ETC.
(a) The Company shall deliver to each Lender notice of the
occurrence of any Reportable Event as such term is defined in Section 4043 of
ERISA, or "prohibited
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transaction" as such term is defined in Section 4975 of the Code, in connection
with any Plan or any trust created thereunder.
(b) Company shall furnish to Agent (i) within 30 days after
any officer of the Company obtains knowledge that the Company, any of its
Subsidiaries, or any ERISA Affiliate has incurred or anticipates incurring
Withdrawal Liability, or that any Multiemployer Plan is in Reorganization or
that any Reportable Event has occurred with respect to any Employee Pension Plan
or that the PBGC has instituted or will institute proceedings under Title IV of
ERISA to terminate any Employee Pension Plan or to appoint a trustee to
administer any Employee Pension Plan, a statement setting forth the details as
to such Withdrawal Liability, Reorganization, Reportable Event or termination or
appointment proceedings and the action which it, any of its Subsidiaries or
ERISA Affiliates (or the Multiemployer Plan sponsor or Employee Pension Plan
sponsor if other than the Company) proposes to take with respect thereto,
together with a copy of any notice of Withdrawal Liability or Reorganization
given to the Company, any of its Subsidiaries or ERISA Affiliates and a copy of
the notice of such Reportable Event given to PBGC if a copy of such notice is
available to the Company, any of its Subsidiaries or any of its ERISA
Affiliates, and (ii) promptly after receipt thereof, a copy of any notice the
Company, any of its Subsidiaries or any of its ERISA Affiliates or the sponsor
of any Plan receives from the PBGC, or the Internal Revenue Service or the
Department of Labor which sets forth or proposes any action or determination
with respect to such Plan.
(c) The Company will promptly notify the Agent of any excise
taxes or penalties which have been assessed or which the Company, any of its
Subsidiaries or any of its ERISA Affiliates has reason to believe may be
assessed against the Company, any of its Subsidiaries or any of its ERISA
Affiliates by the Internal Revenue Service or the Department of Labor with
respect to any Plan or Multiemployer Plan.
(d) Within the time required for notice to the PBGC under
Section 302(f)(4)(A) of ERISA, the Company will notify the Agent of any lien
arising under Section 302(f) of ERISA in favor of any Plan.
Each notice pursuant to this Subsection 6.3.4 shall be accompanied by a
statement of the President or a Vice President or the Treasurer of the Company
setting forth details of the matter referred to therein and stating what action
the Company or the affected Subsidiary has taken, is taking and proposes to take
with respect thereto. For the purpose of this Subsection 6.3.4, the Company
shall be deemed to have knowledge of all facts attributable to the administrator
of such Plan.
6.4 MISCELLANEOUS. With reasonable promptness, the Company shall
deliver such other information respecting the business, operations and financial
condition of (i) SPC or any of its Subsidiaries or any entities in which SPC or
any of its Subsidiaries have an ownership interest (other than information
relating only to The Pfaltzgraff Co. and/or its Subsidiaries), or (ii) Company
or any of Company's Subsidiaries, as the Agent or any Lender may from time to
time reasonably request.
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6.5 DISCLOSURE. The Agent, the Issuing Bank and the Lenders are hereby
authorized to show or deliver a copy of any financial statement or any other
information relating to the business, operations or financial condition of SPC,
the Company and the Company's Subsidiaries, which may be furnished to Agent, the
Issuing Bank or any Lender or come to their attention pursuant to this Agreement
(the "Financial Information"), to their Affiliates, to any regulatory body or
agency having jurisdiction over the Agent, the Issuing Bank or any Lender, to
the Agent's, the Issuing Bank's or any Lender's counsel, advisers and auditors,
and to any Person which shall, or shall have any right or obligation to, succeed
to all or any part of the Agent's, the Issuing Bank's or any Lender's interest
(the "Lender's Interest"), in the Notes or any Note, and/or this Agreement or to
any Person who shall express a desire to acquire all or part of such Lender's
Interest. Effective during the existence of an Event of Default, Agent, the
Issuing Bank and the Lenders and their respective counsel, advisors and auditors
are hereby further authorized to show or deliver a copy of the Financial
Information to other Persons in connection with protecting, preserving,
exercising or enforcing any rights of the Agent, the Issuing Bank or the Lenders
in, under or related to the Loan Documents or any Collateral.
ARTICLE 7
FINANCIAL COVENANTS
The Company covenants that from the date of this Agreement so long as
any of the Senior Secured Obligations remain unpaid, any Letters of Credit
remain outstanding, the Lenders have an unexpired Commitment to lend hereunder
or the Issuing Bank has an unexpired commitment to issue Letters of Credit
hereunder, it shall comply with each of the financial covenants set forth in
this Article 7.
7.1 INTEREST COVERAGE RATIO. The Company shall maintain, at all times,
an Interest Coverage Ratio greater than or equal to:
Period Ratio
------ -----
Effective Date through 9/29/05 2.00:1
9/30/05 through 3/30/06 2.25:1
3/31/06 thereafter 2.50:1
This ratio shall be tested as of the end of each fiscal quarter of the Company
and at any other time required under this Agreement.
7.2 CONSOLIDATED TOTAL LEVERAGE RATIO. The Company shall not, and shall
not permit any of its Subsidiaries to, incur or permit Consolidated Indebtedness
to exist that would at any time cause the Consolidated Total Leverage Ratio,
during each period specified below, to equal or exceed the applicable ratio for
such period specified below:
Period Ratio
------ -----
Effective Date through 9/29/05 6.50:1
9/30/05 through 3/30/06 6.25:1
3/31/06 through 9/29/06 6.00:1
9/30/06 thereafter 5.75:1
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This ratio shall be tested as at the (i) end of each fiscal quarter of Company
during each period specified above, (ii) the date of each incurrence of
Consolidated Indebtedness (after giving effect to such proposed incurrence but
without the requirement for the delivery of an Officers' Compliance
Certificate), and (iii) at any other time required under this Agreement.
7.3 CONSOLIDATED SENIOR LEVERAGE RATIO. The Company shall not, and shall not
permit any of its Subsidiaries to, incur or permit to exist any Senior Debt that
would at any time cause the Consolidated Senior Leverage Ratio, during each
period specified below, to exceed the applicable ratio for such period specified
below:
Period Ratio
------ ------
Effective Date through 9/29/05 5.00:1
9/30/05 through 3/30/06 4.75:1
3/31/06 through 9/29/06 4.50:1
9/30/06 thereafter 4.25:1
This ratio shall be tested as at (i) the end of each fiscal quarter of the
Company during each period specified above, (ii) the date of the incurrence of
Senior Debt (after giving effect to such proposed incurrence but without the
requirement for delivery of an Officers' Compliance Certificate), and (iii) at
any other time required under this Agreement .
7.4 FIXED CHARGE COVERAGE RATIO. The Company shall maintain at all times a
Fixed Charge Coverage Ratio of at least 1.10:1. This ratio shall be tested as of
the end of each fiscal quarter of Company.
7.5 ADDITIONAL PROVISIONS RESPECTING CALCULATION OF FINANCIAL COVENANTS.
Except as otherwise provided in this Agreement, the following provisions shall
apply.
7.5.1 All the calculations of financial covenants shall be based upon
the figures set forth in the Consolidated financial statements of the Company
most recently delivered pursuant to this Agreement even where this Agreement may
refer to a period ended on, or most recently prior to a specified date of
determination.
7.5.2 Calculations made pursuant to this Article 7 shall give effect,
on a Pro Forma Basis, to all Acquisitions and dispositions made during the
quarter or year to which the required compliance relates, as if such Acquisition
or disposition had been consummated on the first day of the applicable period.
7.5.3 For purposes of calculation of the financial covenants in
connection with the consummation of an Acquisition, disposition, purchase of
minority interest or other event requiring demonstration of pro forma compliance
under this Agreement (a "Designated Event"), the calculations shall
(i) be based on the results of operations and
financial condition of the Company, as at and for the fiscal
quarter or year (as applicable)
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ended on, or most recently prior to, the date of the
Designated Event for which the Company has provided financial
statements (the "Designated Period"), adjusted to reflect, on
a Pro Forma Basis, the occurrence of such Designated Event
(including the incurrence of any Indebtedness incurred in
connection therewith) as if such Designated Event had occurred
on the first day of such Designated Period; and
(ii) shall be judged against the required financial
covenant standards applicable as at the end of such Designated
Period.
7.5.4 For purposes of calculating the financial covenants for the
period ending December 31, 2003, the amount of Indebtedness shall be the amount
of Indebtedness outstanding on the Effective Date after giving effect to the
Indebtedness incurred on that date.
ARTICLE 8
BUSINESS COVENANTS
The Company covenants that from the date of this Agreement so long as any of
the Senior Secured Obligations remain unpaid, any Letters of Credit remain
outstanding, the Lenders have an unexpired Commitment to lend hereunder or the
Issuing Bank has an unexpired commitment to issue Letters of Credit hereunder,
it shall comply with each of the covenants set forth in this Article 8.
8.1 INDEBTEDNESS.
8.1.1 IN GENERAL. The Company will not, and will not permit any
Subsidiary to, directly or indirectly, create, incur, assume, guarantee, permit
to exist or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness other than each of the following:
(a) obligations existing on the date hereof and listed on
Schedule 8.1;
(b) subject to the terms of Section 8.32 (Interest Rate
Protection Agreements), obligations under Interest Rate Protection Agreements;
(c) obligations under the Loan Documents;
(d) obligations owing to the Company or to a Subsidiary of the
Company;
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(e) other Indebtedness incurred from time to time subject to
the following limitations:
(i) at least five (5) Business Days prior to the
incurrence of Indebtedness of $7,500,000 or more, the Company
shall have delivered to the Agent a copy (or final draft) of
the
credit agreement, indenture or other agreement pursuant to
which such Indebtedness is to be incurred, the terms and form
of which shall be satisfactory to the Agent in its sole
discretion;
(ii) at least five (5) Business Days prior to the
incurrence of Indebtedness of $7,500,000 or more, the Company
shall have delivered to the Agent an Officers' Compliance
Certificate showing pro forma compliance (determined in the
manner set forth in Subsection 7.5.3 (Additional Provisions
Respecting Calculation of Financial Covenants) above) with the
financial covenants set forth in Article 7 (Financial
Covenants) of this Agreement after giving effect to such
Indebtedness;
(iii) prior to and after giving effect to such
Indebtedness, there shall be no Event of Default or Potential
Event of Default; and
(iv) if (but only if) such Indebtedness is
subordinate to the Senior Secured Obligations, such
subordinated Indebtedness shall have subordination terms no
less favorable to the Lenders than the terms of the Senior
Subordinated Indentures and the Senior Subordinated Notes and
covenants that are not substantially more onerous than the
covenants in the Senior Subordinated Indentures and the Senior
Subordinated Notes; and
(f) Capital Lease Obligations if prior to and after giving
effect to the Incurrence of Indebtedness, there shall be no Event of Default or
Potential Event of Default.
8.1.2 LIMITATION ON INCURRENCE. In addition to the limitations on the
incurrence or existence of Indebtedness referred to above, no Indebtedness may
be incurred by the Company or any of its Subsidiaries unless (a) immediately
before and after giving effect to the incurrence of such Indebtedness, no
Potential Event of Default or Event of Default shall have occurred and be
continuing and (b) it would not cause a default under the Senior Subordinated
Indentures.
8.2 LIENS.
8.2.1 IN GENERAL. The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset (including, without
limitation, any document or instrument in respect of goods or accounts
receivable) of the Company or any Subsidiary of the Company,
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except each of the following (the Liens referred to in clauses (a) through (h)
are, collectively, the "Permitted Liens"):
(a) Liens created in favor of the Agent for the benefit of the
Senior Secured Parties pursuant to the Loan Documents;
(b) Liens for taxes, assessments or other governmental charges
the payment of which is not at the time required by Section 8.11 (Payment of
Taxes and Claims);
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary course of
business for sums not yet due or the payment of which is not at the time
required by Section 8.11 (Payment of Taxes and Claims);
(d) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations (exclusive of obligations for the payment of
borrowed money);
(e) Liens arising out of judgments or awards with respect to
which the Company or a Subsidiary of the Company shall be prosecuting an appeal
in good faith and in respect of which a stay of execution shall have been
issued;
(f) leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or encumbrances, in each
case incidental to, and not interfering with, the ordinary conduct of the
business of the Company or any of its Subsidiaries;
(g) Capital Leases incurred in compliance with paragraph (f)
of Subsection 8.1.1 (Indebtedness -- In General), provided that no such security
interest shall extend to or cover any property other than the property subject
to the Capital Lease; and
(h) the right of first refusal and buy/sell provisions
contained in Sections 13 and 14 of the Comcast Agreement, which may constitute
encumbrances on the stock of Susquehanna Cable and its Subsidiaries, provided
that the exercise by Comcast of such rights may create an Event of Default and
the characterization of such encumbrances as a Permitted Lien shall not be
construed as consent by the Lenders to, or a waiver by Lenders of, any such
Event of Default or any rights they or the Agent may have upon, the exercise of
any one or more of such rights by Comcast.
8.2.2 NEGATIVE PLEDGE. Except as otherwise provided in Section 10.24
(Absence of Restrictive Provisions), the Company will not, and will not permit
any of its Subsidiaries to, agree with any Person, to restrict or place
limitations on the right of the Company or any of its Subsidiaries to create,
incur, assume or permit to exist any Lien on or with respect to any
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property or asset of the Company or any of its Subsidiaries except such
restrictions and limitations as are set forth in the Senior Subordinated
Indentures.
8.3 INVESTMENTS, LOANS, ACQUISITIONS, ETC.
8.3.1 LIMITATION. The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly: (a) make or own any Investment in any
Person (including, without limitation, the contribution or transfer of ownership
or possession of any of its cash, property rights or other assets to any
Subsidiary of the Company); or (b) purchase or otherwise acquire any assets or
property of any nature after the date of this Agreement other than assets and
property used in the ordinary course of its business, except as set forth in
Subsections 8.3.2 (Investments) and 8.3.3 (Acquisitions) below.
8.3.2 INVESTMENTS. Notwithstanding the terms of Subsection 8.3.1 above,
the Company and its Subsidiaries may make or own any or all of the following
Investments:
(a) Investments that exist as of the date of this Agreement
which are described on Schedule 8.3.2 to this Agreement;
(b) Investments by the Company in any of its Subsidiaries or
by any Subsidiary of the Company in the Company or another Subsidiary of the
Company;
(c) Investments made in compliance with Subsection 8.3.3
(Acquisitions);
(d) minority Investments not in excess of $25,000,000
(determined by the amount invested) in the aggregate in any calendar year in
Persons engaged in Permitted Businesses, provided, that immediately before and
after making each such Investment, no Potential Event of Default or Event of
Default shall have occurred and be continuing;
(e) Investments in short-term obligations issued or
unconditionally guaranteed by the United States or any agency thereof and backed
by the full faith and credit of the United States;
(f) Repurchase obligations of up to one week with any Lender
or any other commercial bank meeting the qualifications in clause (g) of this
Section that are fully collateralized by securities referred to in clause (e) of
this Section;
(g) Investments in certificates of deposit or Eurodollar time
deposits that become payable within one year of the date of purchase of (i) any
of the Lenders or (ii) any other commercial bank having combined capital,
surplus and undivided profits of $500,000,000 or more, FDIC membership, and debt
obligations, or those of a holding company of which it is a Subsidiary, rated
not less than A by Standard & Poor's Corporation or equivalent by a nationally
recognized investment rating agency;
(h) [Intentionally omitted];
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(i) Investments in readily marketable commercial paper,
maturing within 270 days after the acquisition thereof, which at the time of
acquisition has the highest rating by Standard & Poor's Corporation or Xxxxx'x
Investors Service, Inc.;
(j) U.S. Dollars on hand and in insured demand deposit
accounts or, if in excess of insurable amounts, in deposit accounts at banks
described in clause (g) above;
(k) Interest Rate Protection Agreements entered into in
compliance with Section 8.32 (Interest Rate Protection);
(l) Promissory notes received in connection with a disposition
as permitted by Subsection 8.7.2(c) (Sales and Other Dispositions);
(m) Money market funds which are substantially invested in the
types of Investments permitted in clauses (e) through (j) above;
(n) Investments in employee stock purchase plans of
Susquehanna Radio and Susquehanna Cable; and
(o) Investments which constitute purchases of minority
interests in Subsidiaries of the Company (from Persons that hold minority
interests as of the date of this Agreement) subject to satisfactions of each of
the following:
(i) no Event of Default or Potential Event of Default
shall have occurred and be continuing or shall be caused
thereby;
(ii) all (rather than a portion) of the interests of
the selling party or parties in the Company and its
Subsidiaries shall be purchased in the same transaction;
(iii) the purchase price shall be no greater than the
fair market value of the Investment so purchased and, if the
Agent so requests, the Company shall provide a third party
fairness or other opinion to that effect;
(iv) both before and (on a Pro Forma Basis) after
giving effect to the Investment, the Company shall be in
compliance with the financial covenants set forth in Article
7; and
(v) the Company shall give the Agent and each Lender
five (5) Business Days prior written notice of the proposed
Investment, together with an Officers' Compliance Certificate
showing compliance on a Pro Forma Basis with the financial
covenants set forth in Article 7.
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8.3.3 ACQUISITIONS. Notwithstanding the terms of Subsection 8.3.1
above, the Company or any Subsidiary of the Company may, in one transaction or a
series of related transactions, acquire all or substantially all of the equity
of (or, if the Company or such Subsidiary shall have an Investment in a Person,
then the remaining equity of), or all or substantially all of the assets of, a
Person, or division thereof, that is solely engaged in a Permitted Business (an
"Acquisition"), but only subject to and upon satisfaction of the following
terms:
(a) The Company shall provide the Lenders with not less than
five (5) Business Days prior written notice of each consummation of an
Acquisition (or series of related Acquisitions), the aggregate consideration for
which would exceed Fifty Million Dollars ($50,000,000), together with an
Officers' Compliance Certificate showing, on a Pro Forma Basis, compliance with
the provisions of paragraph (c) below and a copy of the acquisition agreement
which shall be in form and substance satisfactory to the Agent and copies of
related documents as they become available;
(b) No Acquisition may be made if an Event of Default or
Potential Event of Default exists either before or after giving effect to such
Acquisition;
(c) No Acquisition may be made if, on a Pro Forma Basis after
giving effect to such Acquisition, the Company is not in compliance with the
financial covenants specified in Article 7 (Financial Covenants);
(d) If such Acquisition is of equity, contemporaneously with
the closing of such Acquisition, all of the equity and all material assets of
the Subsidiary that issued such equity shall be subject to a valid first
priority security interest pursuant to the Loan Documents (subject only to
Permitted Liens) and the Subsidiary that is acquired shall execute and deliver
to Agent the Subsidiary Suretyship;
(e) If such acquisition is of assets (rather than equity),
contemporaneously with the closing of such Acquisition, all of the material
assets so acquired shall be subject to a valid first priority security interest
pursuant to the Loan Documents, subject only to Permitted Liens;
(f) If such Acquisition includes FCC Licenses to be used in
connection with the radio broadcast business, such licenses shall be owned by
Radio License Subsidiaries except as otherwise set forth on Schedule 8.3.3;
(g) All necessary or appropriate governmental, judicial or
other third party approvals, waivers or consents necessary for such Acquisition
shall have been obtained and become final or Final Orders, as applicable, and
shall remain in full force and effect; and
(h) Company shall promptly upon request of the Agent or any
Lender provide such further information and documentation as may be reasonably
requested by the Agent or such Lender.
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(i) No Acquisition pursuant to this Subsection 8.3.3 shall be
made which would result in any Subsidiary being a Person other than a
corporation, limited partnership or limited liability company organized under
the laws of any state of the United States all of whose capital stock or
ownership interests is owned directly or indirectly by the Company, provided,
that nothing in this Subsection 8.3.3 shall (1) prohibit the Company from making
additional investments (otherwise permitted by this Agreement) in any Subsidiary
that as of the date of this Agreement is not wholly-owned directly or indirectly
by the Company (collectively, "Permitted Non-wholly Owned Subsidiaries") or (2)
prohibit any such Permitted Non-wholly Owned Subsidiary from acquiring another
Subsidiary that (after such acquisition) is wholly-owned by the Permitted
Non-wholly Owned Subsidiary.
The restrictions on Acquisitions and Investments contained in this Subsection
8.3.3 shall be construed to be in addition to, and not in lieu of, the
restrictions contained elsewhere in this Agreement.
8.4 RESTRICTED PAYMENTS.
The Company will not and will not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum or
property for any Restricted Payment, except:
(a) Restricted Payments to the Company or any Subsidiary of
the Company, and
(b) the Company may directly or indirectly, declare, order,
pay, make or set apart any Restricted Payment if (i) the Company is able to
demonstrate pro forma compliance with the financial covenants set forth in
Article 7 (Financial Covenants) and (ii) after giving effect to any proposed
action no Event of Default or Potential Event of Default shall exist or be
continuing.
Equity that the Company redeems and converts into subordinated debt permitted
under this Agreement will not be considered a Restricted Payment until the
principal amount of such debt is repaid. Restricted Payments to SPC and Comcast
shall be subordinated to Senior Debt in accordance with the SPC Subordination
Agreement or Comcast Subordination Agreement, as applicable.
8.5 SALE-LEASEBACKS.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly sell or otherwise transfer, in one or more related
transactions, any property (whether real, personal or mixed) and thereafter rent
or lease such transferred property or substantially identical property.
8.6 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, engage in any transaction with (a) any holder of 5% or
more of any class of the capital stock or ownership interest of the Company
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or any of its Subsidiaries or (b) any Affiliate of the Company or of any such
holder, on terms that are less favorable to the Company or any Subsidiary of the
Company than those which might be obtained at the time from Persons which are
not such a holder or Affiliate, provided that the foregoing restrictions shall
not apply to (i) loans by the Company to its Subsidiaries permitted under
Paragraph (d) of Subsection 8.1.1 (Indebtedness -- In General), and other
transactions between a Subsidiary of the Company and the Company or another
Subsidiary of the Company which are not otherwise prohibited under the
provisions of this Agreement, (ii) the transactions described on Schedule 8.6
and (iii) Restricted Payments permitted by Section 8.4 (Restricted Payments)
above. If any such Affiliate transaction other than an Excluded Transaction is
in excess of Ten Million Dollars ($10,000,000), it shall be
(a) set forth in writing; and
(b) approved by a majority of the disinterested members of the
board of directors of the Company.
If any such Affiliate transaction is in excess of Twenty Five Million Dollars
($25,000,000), it shall be determined by a nationally recognized investment
banking or accounting firm to be fair to the Company and its Subsidiaries.
8.7 MERGERS AND DISPOSITIONS.
8.7.1 CONSOLIDATIONS AND MERGERS. Except to effect a disposition
permitted by Subsection 8.7.2, the Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly consolidate with or merge into any
other Person or permit any other person to consolidate with or merge into it
except that:
(a) a Subsidiary of the Company, other than a Radio License
Subsidiary, may consolidate with or merge into a Subsidiary of the Company or a
Person which simultaneously therewith becomes a Subsidiary of the Company as a
result of an Acquisition permitted under Section 8.3 (Investments, Loans,
Acquisitions, Etc.);
(b) a Radio License Subsidiary may consolidate with or merge
into a Subsidiary of the Company so long as the surviving entity is a Radio
License Subsidiary;
(c) a Person that is not a Subsidiary of the Company may be
consolidated with or merged into the Company or a Subsidiary of the Company in
connection with an Acquisition permitted under Subsection 8.3.3 (Acquisitions);
and
(d) the Company may consolidate with or merge into any other
entity so long as (i) the Consolidated Net Worth of the Company after the merger
is at least as great as the Consolidated Net Worth prior to the merger; and (ii)
such surviving entity expressly and unconditionally assumes the obligations of
the Company under this Agreement, and the other Loan Documents to which the
Company is a party, and delivers to the Agent an opinion of counsel reasonably
satisfactory to the Agent as to such matters as the Agent may reasonably
request, and (iii) immediately after giving effect to such merger no Event of
Default or Potential Event of Default shall exist and be continuing.
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8.7.2 SALES AND OTHER DISPOSITIONS. The Company will not, and will not
permit any Subsidiaries to, directly or indirectly sell, lease, abandon or
otherwise transfer or dispose of any substantial amount of its assets or
property, or sell, lease, abandon or otherwise transfer or dispose of any of its
assets or property of any nature except in the ordinary course of its business,
except as follows:
(a) A Subsidiary of the Company, other than a Radio License
Subsidiary, may transfer its assets to another Subsidiary of the Company.
(b) A Radio License Subsidiary may transfer its assets to
another Radio License Subsidiary.
(c) The Company and its Subsidiaries may, upon twenty (20)
days prior written notice to the Agent and the Lenders, dispose (by sale,
merger, consolidation or otherwise) of all or any part of its assets outside the
ordinary course of business so long that as of the date of such disposition, and
both before and after giving effect thereto, no Event of Default or Potential
Event of Default exists, and, in the case of a disposition made pursuant to this
clause (c),
(i) such disposition is a sale to any Person not an
Affiliate of the Company for consideration equal to not less
than the fair market value of the assets sold as determined in
the good faith judgment of the Board of Directors of the
Company or the applicable Subsidiary, at least seventy-five
percent (75%) of which consideration shall be cash and the
balance of which consideration shall be in the form of (A)
transferable promissory notes which shall, together with any
collateral or other credit support given to the seller to
secure such promissory note, be immediately assigned to the
Agent, for the benefit of the Lenders, pursuant to
instruments, assignments and other documents in form and
substance satisfactory to Agent and if requested by Agent,
accompanied by an opinion of counsel in form and substance
satisfactory to the Agent in its reasonable judgment with
respect to the effectiveness and perfection of such assignment
or (B) other consideration satisfactory to the Requisite
Lenders in their sole discretion; provided that the amount of
consideration which may be accepted in the form of
transferable promissory notes or other consideration may not
exceed an aggregate of Five Million Dollars ($5,000,000) at
any time outstanding in respect of all dispositions made by
the Company or any of its Subsidiaries; or
(ii) such disposition is an exchange with any Person
not an Affiliate of the Company of assets of the Company or
one of its Subsidiaries comprising one or more cable
television systems or radio broadcast systems or the ownership
interests of the Person owning such a system or systems for
assets comprising one or more other cable television systems
or radio broadcast systems, as applicable, of a similar nature
and
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of equal or greater value as determined in the good faith
judgment of the Board of Directors of the Company or the
applicable Subsidiary; or
(iii) the consideration for such disposition is a
combination of an exchange described in the preceding clause
(ii) and cash.
In the case of any disposition made pursuant to subparagraphs (i), (ii) or (iii)
above, the following conditions shall apply:
(A) the sum of (x) EBITDA attributable to all assets
subject to such disposition determined as of the last
day of the fiscal quarter ending immediately
preceding such disposition for which quarterly or
annual financial statements of the Company and its
Subsidiaries were delivered to Lenders, plus (y)
EBITDA attributable to all other assets disposed of
by the Company and its Subsidiaries pursuant to this
paragraph (b), in each case determined as of the last
day of the fiscal quarter ending immediately
preceding each such disposition for which quarterly
or annual financial statements of the Company and its
Subsidiaries were delivered to Lenders, during the
preceding four fiscal quarters, shall not exceed 15%
of EBITDA determined as of the last day of the fiscal
quarter ending immediately preceding the most recent
disposition for which quarterly or annual financial
statements of the Company and its Subsidiaries were
delivered to Lenders;
(B) The Company shall have furnished to Lenders, not
later than ten (10) days preceding the date of such
disposition, a notice of disposition and, if the
disposition is for an aggregate purchase price in an
amount equal to Five Million Dollars ($5,000,000) or
more, an Officers' Compliance Certificate showing
compliance with the terms of the following clause
(C), and other information relating to such
disposition, including the disposition agreement (and
promptly, as they became available, any related
documents), which shall be in form and content
satisfactory to Agent;
(C) after giving effect to such disposition, the
Company is in compliance, on a Pro Forma Basis, with
the financial covenants specified in Article 7
(Financial Covenants);
(D) if the disposition is of ownership interests in a
Subsidiary, the Subsidiary being disposed of has no
continuing Investment in the Company or any other
Subsidiary not being simultaneously disposed of; and
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(E) the disposition is made on a non-recourse basis
to the Company and its Subsidiaries, other than to
the extent of normal and customary representations,
warranties and indemnities given to buyers of
Permitted Businesses.
(d) In addition to dispositions made pursuant to clauses (a),
(b) or (c) above or clause (e) below, the Company or any Subsidiary of the
Company may sell the equity interest in any Subsidiary of the Company to any
minority investor thereof (that is a minority investor on the date of this
Agreement), subject to the following terms and conditions:
(i) no Event of Default or Potential Event of Default
shall have occurred and be continuing or shall be caused
thereby;
(ii) the Company and/or its Subsidiaries shall sell
to such minority investor all (but not less than all) of the
remaining interests that the Company or any Subsidiary thereof
has in each Subsidiary that such minority investor has an
interest in;
(iii) the sale price shall be payable in cash and no
less than the fair market value of the interests so sold and,
if the Agent so requests, the Company shall provide a third
party fairness or other opinion to that effect;
(iv) both before and (on a Pro Forma Basis) after
giving effect to the sale, the Company shall be in compliance
with the financial covenants set forth in Article 7; and
(v) the Company shall give the Agent and each Lender
ten (10) Business Days prior written notice of the proposed
sale, together with an Officers' Compliance Certificate
showing compliance on a Pro Forma Basis with the financial
covenants set forth in Article 7.
(e) The Company may sell the WABZ Assets pursuant to the WABZ
Disposition.
8.8 MANAGEMENT FEES.
8.8.1 LIMITATIONS ON MANAGEMENT ARRANGEMENTS. Except for the Management
Agreement and the payment of Management Fees to SPC pursuant thereto (as
described in Subsection 8.8.2 below), the Company shall not, and shall not
permit any of its Subsidiaries to, (a) enter into any management agreement with
any Person that gives such Person the right to manage any broadcast radio
station or cable television system or other Permitted Business owned by the
Company or any of its Subsidiaries, or (b) directly or indirectly pay or accrue
to an entity any sum or property for fees for management or similar services
rendered in connection with the operation of a Permitted Business.
Notwithstanding the foregoing (i) other than ESOP-related
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expenses which may be paid only to the extent provided in the ESOP Sharing
Agreement, the Company and its Subsidiaries may reimburse SPC for actual out of
pocket expenses paid by SPC (and not overhead expense) for the account of the
Company and its Subsidiaries in respect of the items listed on Schedule 8.8
(which expenses are deducted in the computation of Consolidated Net Income) so
long as SPC does not profit from any such reimbursements and such reimbursements
are not in excess of amounts that the Company and its Subsidiaries would have
paid had they paid for such items directly (the reimbursement referred to in
this clause (i) (which excludes ESOP-related expenses) is hereinafter referred
to as "SPC Expense Reimbursement"), (ii) the Company or any of its Subsidiaries
may enter into a management agreement to give a Person that is not an Affiliate
of the Company or any of its Subsidiaries the right to manage one or more radio
broadcast stations, cable television systems or other Permitted Business owned
by the Company or any of its Subsidiaries so long as all of the stations,
systems or businesses so managed do not contribute more than an aggregate of
four percent (4%) of the Company's annual net revenue in respect of any fiscal
year of the Company, and (iii) the Company or any of its Subsidiaries may enter
into agreements in the ordinary course of business to pay Persons that are not
Affiliates of the Company or any of its Subsidiaries for certain management type
services provided to the Company or its Subsidiaries, such as joint sales
agreements, local marketing agreements, or time brokerage agreements entered
into in connection with permitted divestitures.
8.8.2 LIMITATIONS ON MANAGEMENT FEES. Management Fees payable by the
Company and its Subsidiaries to SPC may not exceed four percent (4%) of the
Consolidated revenues (net of agency commissions) of the Company and its
Subsidiaries for any fiscal year provided, however, that during any period that
an Event of Default has occurred and is continuing Management Fees payable by
the Company and its Subsidiaries may not exceed two and one-half percent
(2-1/2%) of the Consolidated revenues (net of agency commissions) of the Company
and its Subsidiaries for any fiscal year.
8.9 EXISTENCE.
Except as otherwise permitted by Subsection 8.7.1 (Consolidations and
Mergers), the Company will at all times preserve and keep in full force and
effect (i) its corporate existence and its rights and franchises and (ii) the
corporate or partnership existence of each of its Subsidiaries and the rights
and franchises of each such Person, including the good standing of such Persons
in all states in which they are formed or required to qualify to do business,
except where the failure to keep in full force and effect any such rights and
franchises could not have a Material Adverse Effect and except that a Subsidiary
of the Company may be dissolved following the transfer of all of its assets to
one or more other Subsidiaries of the Company (the "Transferee Subsidiaries")
subject to the conditions that (y) both before and after the transfer and
subsequent dissolution, no Event of Default or Potential Event of Default shall
exist and (z) all of the equity of the Transferee Subsidiaries shall have been
duly pledged to the Agent pursuant to the Pledge Agreements, all of the material
assets of the Transferee Subsidiaries shall have been pledged as security
pursuant to the Security Agreement and the transferee Subsidiaries shall all be
parties to one or more Subsidiary Suretyships.
8.10 COMPLIANCE WITH LAW.
The Company and each of its Subsidiaries shall comply with all laws,
ordinances and governmental rules and regulations to which each is subject, and
obtain or maintain all Franchises (including without limitation FCC Licenses or
PUC Franchises), permits, franchises and other governmental authorizations and
approvals necessary for the ownership, acquisition and disposition of their
respective properties and the conduct of their respective businesses and shall
comply with FCC and PUC construction, operating and reporting requirements,
except to the extent that the failure
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to do any of the foregoing could not have a Material Adverse Effect. Without
limiting the generality of the foregoing, the Company shall renew with the
appropriate local municipalities all expired Franchises in respect of the cable
system located in and around Carmel, New York within 12 months after the closing
of the acquisition of such cable system from RCN Corporation.
8.11 PAYMENT OF TAXES AND CLAIMS.
The Company will, and will cause each of its Subsidiaries to, pay all
taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its franchises, business, income or
profits before any penalty or interest accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
might become a Lien upon any of its properties or assets, provided that no such
charge or claim need be paid if being contested in good faith by appropriate
proceedings promptly initiated and diligently conducted and if such reserve or
other appropriate provision, if any, as shall be required by GAAP shall have
been made therefor and, if the filing of a bond or other indemnity is necessary
to avoid the creation of a Lien against any of the assets of the Company or any
of its Subsidiaries, such bond shall have been filed or indemnity provided.
8.12 TAX CONSOLIDATION.
Except as contemplated by the Tax Sharing Agreement, the Company will
not file or consent to or permit the filing of any consolidated income tax
return on behalf of it or any of its Subsidiaries with any Person (other than a
consolidated return of the Company and its Subsidiaries). Except as provided in
the Tax Sharing Agreement, the Company will not enter into any agreement with
any Person which would cause the Company to bear more than the amount of taxes
to which it would have been subject had it separately filed a consolidated
return with its own Subsidiaries as an affiliated group.
8.13 COMPLIANCE WITH ERISA.
8.13.1 The Company shall, and shall cause its Subsidiaries and ERISA
Affiliates to, make all contributions to any Employee Pension Plan and
Multiemployer Plan when such contributions are due and not incur any Accumulated
Funding Deficiency, whether or not waived, and will otherwise comply with the
requirements of the Code and ERISA with respect to the operation of all Plans,
except to the extent that the failure to so comply could not have a Material
Adverse Effect.
8.13.2 The Company shall, and shall cause its Subsidiaries and ERISA
Affiliates to, comply in all material respects with the provisions of ERISA and
the Code with respect to any Plan both in form and operation including, but not
limited to, the timely filing of required annual reports and the timely payment
of PBGC premiums.
8.13.3 The Company shall, and shall cause its Subsidiaries and ERISA
Affiliates to, comply in all respects with the requirements of COBRA regarding
continued health coverage and of the Health Insurance Portability and
Accountability Act of 1996 with respect to any Plans subject to the requirements
thereof, except to the extent that the failure to so comply could not have a
Material Adverse Effect.
8.13.4 The Company will not, and will not permit any of its
Subsidiaries or any of its ERISA Affiliates to, take any of the following
actions or permit any of the following events
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to occur if such action or event together with all other such actions or events
would subject the Company, any of its Subsidiaries, or any of its ERISA
Affiliates to any tax, penalty, or other liabilities which could have a Material
Adverse Effect:
(a) engage in any transaction in connection with which the
Company, any of its Subsidiaries or any ERISA Affiliate could be subject to
either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax
imposed by Section 4975 of the Code;
(b) terminate any Employee Pension Plan in a manner, or take
any other action, which could result in any liability of the Company, any of its
Subsidiaries or any ERISA Affiliate to the PBGC;
(c) fail to make full payment when due of all amounts which,
under the provisions of any Plan, the Company, any of its Subsidiaries or any
ERISA Affiliate is required to pay as contributions thereto, or permit to exist
any Accumulated Funding Deficiency, whether or not waived, with respect to any
Employee Pension Plan;
(d) permit the current value of all vested accrued benefits
under any Plan which is subject to Title IV of ERISA to exceed the current value
of the assets of such Plans allocable to such vested accrued benefits, except as
may be permitted under actuarial funding standards adopted in accordance with
Section 412 of the Code; or
(e) withdraw from any Multiemployer Plan, if such withdrawal
would result in the imposition of Withdrawal Liability.
8.13.5 The Company shall comply with the ERISA reporting requirements
set forth in Subsection 6.3.4 (Reportable Events, Etc.) hereof.
As used in this Section, the term "accrued benefit" has the meaning specified
in Section 3(23) of ERISA and the term "current value" has the meaning specified
in Section 4001(a)(18)(B) of ERISA.
8.14 MATTERS RELATING TO THE ESOP.
The Company shall make all payments in respect of the ESOP in
accordance with the terms of the ESOP Sharing Agreement.
8.15 INSURANCE.
8.15.1 LIABILITY, PROPERTY DAMAGE, ETC. The Company will maintain or
cause to be maintained with financially sound and reputable insurers, insurance
with respect to the properties and business of the Company and its Subsidiaries
against loss or damage of the kinds customarily insured against by Persons of
established reputation engaged in the same or similar businesses and similarly
situated, of such types and in such amounts as are customarily carried under
similar circumstances by other such Persons and otherwise as is prudent for
Persons engaged in conducting business in the cable television industry and
radio broadcast industry and
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any such other insurance as may be required by the Security Agreement. Annually
(and from time to time upon request of the Agent) the Company will promptly
furnish or cause to be furnished to the Agent and Lenders evidence, in form and
substance satisfactory to the Agent, of the maintenance of all insurance,
indemnities or bonds required by this Section or by any permit, license, or
other agreement to be maintained, including copies thereof and proof of premium
payments. Notwithstanding the foregoing, the Company and its Subsidiaries may
maintain the insurance described on Schedule 8.15 with SPC Insurance Co., a
captive insurance subsidiary of SPC.
8.15.2 PBGC. The Company shall maintain or cause to be maintained all
insurance available through the PBGC and/or insurers acceptable to the Agent
against its obligations and the obligations of its Subsidiaries to the PBGC.
8.16 MAINTENANCE OF PROPERTIES.
The Company will maintain or cause to be maintained its properties and
the properties of its Subsidiaries in good repair, working order and condition
and make or cause to be made all appropriate and proper repairs, renewals,
replacements, additions and improvements thereto, and keep all systems and
equipment which may now or in the future be subject to compliance with any
material standards or rules (including, without limitation, compliance with
requirements as to the time periods in which system construction must be
completed) imposed by any governmental agency or authority (including, without
limitation, the FCC, any PUC or other state or local governments or
instrumentalities) in compliance in all material respects with such standards or
rules. The Company shall and shall cause its Subsidiaries to install and
maintain their respective equipment and systems in compliance in all material
respects with any material requirement imposed under FCC or PUC regulations,
permits, or licenses or under agreements affecting the Company or any of its
Subsidiaries. The Company and its Subsidiaries shall maintain, preserve and
protect, and, when necessary, renew, all Franchises and all service marks,
trademarks and tradenames held by any of them and all agreements to which any of
them are parties which are necessary or useful to conduct the Permitted
Businesses, except where the failure to do any of the foregoing could not have a
Material Adverse Effect.
8.17 MAINTENANCE OF RECORDS; FISCAL YEAR.
The Company will, and will cause each of its Subsidiaries to, keep at
all times books of record and account in which full, true and correct entries
will be made of all dealings or transactions in relation to its business and
affairs. The Company will keep and will cause each of its Subsidiaries to keep
its books of account and financial statements in accordance with GAAP and report
on the basis of a fiscal year ending December 31.
8.18 INSPECTION.
Upon reasonable notice (and for this purpose no more than two Business
Days notice shall be required under any circumstances) if no Event of Default or
Potential Event of Default shall exist, or at any time with or without notice
after the occurrence of an Event of Default or Potential Event of Default, the
Company will, and will cause each of its Subsidiaries to, allow any
representative of Agent, the Issuing Bank or any Lender to visit and inspect any
of the properties of the Company and any of its Subsidiaries, to examine the
books of account and other records and files of the Company and any of its
Subsidiaries (including, without limitation, the financial statements (audited
and unaudited, to the extent prepared) of each Subsidiary and information with
respect to each Permitted Business operated by the Company and any of its
Subsidiaries), to make copies thereof and to discuss the affairs, business,
finances and accounts of the Company and its Subsidiaries with its personnel and
accountants, all at such reasonable times (and to the extent feasible, during
ordinary business hours) and as often as the Agent, the Issuing Bank or any
Lender may request.
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8.19 EXCHANGE OF NOTES.
Upon receipt of a written notice of loss, theft, destruction or
mutilation of any or all of the Notes and of a letter of indemnity from the
affected Lender or its successors or assigns, and upon surrendering for
cancellation such Note(s) if mutilated (in which event no indemnity shall be
required), the Company shall execute and deliver a new Note or Notes of like
tenor in lieu of such lost, stolen, destroyed or mutilated Note(s), as the case
may be. Any Note(s) issued pursuant to this Section shall be dated so that
neither gain nor loss of interest shall result therefrom.
8.20 OTHER AGREEMENTS.
The Company will, and will cause each of its Subsidiaries to, comply
with all covenants and agreements set forth in, or required pursuant to, any
other agreement or document previously, concurrently or hereafter executed or
delivered by the Company or such Subsidiary in connection with this Agreement or
the other Loan Documents.
8.21 FURTHER ASSURANCES.
At its sole cost and expense, upon the reasonable request of the Agent,
the Company will duly execute and deliver or cause to be duly executed and
delivered, to the Agent and the Lenders such further instruments and do or cause
to be done such further acts as may be necessary or proper in the reasonable
opinion of the Agent to carry out more effectively the provisions and purpose of
this Agreement and the other Loan Documents.
8.22 CONSISTENT ACTION - VOTING.
The Company shall and shall cause its Subsidiaries to exercise any and
all voting or similar rights which they hold in any Person in a manner
consistent with adherence to the provisions of this Agreement and the other Loan
Documents.
8.23 TYPE OF BUSINESS.
8.23.1 PERMITTED BUSINESSES. Neither the Company nor any of its
Subsidiaries will directly or indirectly enter into any business which is not a
Permitted Business.
8.23.2 THE COMPANY. Except as otherwise permitted by Subsection 8.7.1
(Consolidations and Mergers), the Company shall have no business or operations
other than the ownership of the stock of, or partnership or other equity
interest in, its Subsidiaries, the ownership of other Investments permitted
hereunder and such other activities as may be consented to in writing by the
Requisite Lenders.
8.23.3 RADIO LICENSE SUBSIDIARIES. The Radio License Subsidiaries shall
have no business or operations other than the ownership of their respective FCC
Licenses and the granting of the right to use such FCC Licenses to the
Subsidiaries of the Company that use such licenses to operate their respective
radio broadcast businesses.
8.24 CONTROL OF BUSINESS.
Except as otherwise permitted by Subsection 8.7.1 (Consolidations and
Mergers), neither the Company nor any of its Subsidiaries shall enter into any
agreement with any Person which shall confer upon such Person the right or
authority to control or direct any of the business or assets of the Company or
any of its Subsidiaries.
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8.25 SHAREHOLDERS.
Except as otherwise permitted by this Agreement, the Company shall not
issue, authorize the issuance of, or obligate itself to issue any shares of its
capital stock to any Person
(a) that (i) would contravene any other provision of this
Agreement, including result in a Change of Control, or (ii) would result in
there being capital stock of the Company that is owned by SPC not pledged
pursuant to the Pledge Agreements. No Subsidiary of the Company shall issue,
authorize the issuance of, or obligate itself to issue any shares of its capital
stock or ownership interests to any Person, that (i) would contravene any other
provision of this Agreement, including result in a Change of Control, or (ii)
would result in there being capital stock or ownership interests of a Subsidiary
that is owned by the Company or a Subsidiary of the Company not pledged pursuant
to the Pledge Agreements, and
(b) except in connection with an Acquisition, Investment,
disposition or merger expressly permitted by this Agreement or pursuant to an
employee stock ownership plan for Susquehanna Radio or Susquehanna Cable.
8.26 CHANGE IN DOCUMENTS; NEW DOCUMENTS.
8.26.1 LIMITATIONS ON CHANGES TO CERTAIN AGREEMENTs. The Company will
not, and will not permit any of its Subsidiaries to, amend or supplement, and
the Company will not, and will not permit any of its Subsidiaries to consent to,
any amendment or supplement to
(a) the respective articles or certificate of incorporation,
bylaws or other organization document of such Person (except that the
organizational documents of Subsidiaries may be amended or supplemented in such
a manner as could not have a Material Adverse Effect or otherwise materially and
adversely affect the interests of the Agent, the Issuing Bank or the Lenders) or
the Management Agreement or Tax Sharing Agreement without the prior written
consent of the Agent, which consent will not be unreasonably withheld if in the
good faith judgment of the Agent the proposed amendment or supplement could not
have a Material Adverse Effect or otherwise materially and adversely affect the
interests of the Agent, the Issuing Bank or the Lenders,
(b) without evidence of pro forma compliance with the
financial covenants in Article 7 (Financial Covenants) above, the Senior
Subordinated Indentures, the Senior Subordinated Notes or any documents executed
pursuant thereto that would (i) increase the maximum principal amount of the
Senior Subordinated Notes, (ii) increase the interest payable on the Senior
Subordinated Notes, or increase the premium payable in the event of a prepayment
of the Senior Subordinated Notes, (iii) accelerate or otherwise shorten the time
for payment of all or any part of the Senior Subordinated Notes, (iv) add
financial covenants or make any financial covenants more restrictive, (v) add or
modify any other covenants thereto which would result in there being covenants
in the Senior Subordinated Notes or Senior Subordinated Indentures that are more
restrictive than the covenants herein, (vi) require collateral to be pledged
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to secure the Senior Subordinated Notes or require any additional credit support
for the Senior Subordinated Notes, (vii) add events of default or make any
events of default more restrictive, (viii) affect in any way the subordination
terms thereof or (ix) directly or indirectly effectuate any of the items
referred to in clauses (i) through (viii), or
(c) the Comcast Agreement without the prior written consent of
the Requisite Lenders, except that the prior written consent of the Requisite
Lenders shall not be required for amendments, supplements or waivers to the
Comcast Agreement which are not material. The Company shall provide to the
Lenders a written copy of any proposed nonmaterial amendment, supplement or
waiver to the Comcast Agreement, together with a certification as to such
nonmateriality, at least five (5) Business Days prior to its effectiveness.
For purposes of this Section 8.26, an amendment or supplement will be deemed
to include, without limitation, the granting or receiving of a waiver or
extension howsoever such waiver or extension is denominated.
8.26.2 CONSISTENT ACTION - CONFLICTING AGREEMENTS. The Company will
not, and will not permit any of its Subsidiaries to, enter into any new
agreement or amend any existing agreement with or for the benefit of any
shareholder or other Person which, insofar as can be foreseen, will cause or
contemplates a non-compliance with a covenant under any of the Loan Documents.
8.27 PAYMENT OF INDEBTEDNESS; SUBORDINATION.
Neither the Company nor any of its Subsidiaries will make any payments
of principal or interest (however denominated) with respect to any Indebtedness
which is subordinated to the Loans unless the Company is able to demonstrate pro
forma compliance with the financial covenants set forth in Article 7 (Financial
Covenants) of this Agreement after (i) giving effect to the payment and (ii)
prior to and after giving effect to such payment, there shall be no Event of
Default or Potential Event of Default.
8.28 [INTENTIONALLY OMITTED].
8.29 COMPLIANCE WITH FEDERAL RESERVE REGULATIONS.
No proceeds of the Loans shall be used by the Company, any of its
Subsidiaries or other Person, directly or indirectly to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock. Neither the Company nor any of its Subsidiaries will,
directly or indirectly, otherwise take or permit to be taken any action which
would result in the Loans or the carrying out of any of the other transactions
contemplated by this Agreement, being violative of such Regulation U or of
Regulation T (12 C.F.R. 220, as amended) or of Regulation X (12 C.F.R. 224, as
amended) or any other regulation of the Board of Governors of the Federal
Reserve System.
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8.30 FILINGS.
Company will file with the FCC, each PUC and other regulatory or
administrative bodies in a timely fashion (taking into account extensions
authorized under applicable regulations that will not result in any penalty)
copies of the Loan Documents to the extent required under applicable law and any
and all other documents required to be filed by applicable law, rules or
regulations.
8.31 LIMITATIONS ON CERTAIN RESTRICTIVE PROVISIONS.
The Company will not, and will not permit any of its Subsidiaries to
(a) permit or place any restriction, directly or indirectly,
on (x) the payment of dividends or distributions by any Subsidiary or (y) the
making of advances or other cash payments by any such Subsidiary or (z) the
transfer by any Subsidiary of any of its properties or assets, in each case to
the Company or its Subsidiaries, other than restrictions in favor of the holders
of the Senior Subordinated Notes pursuant to the Senior Subordinated Indentures,
or
(b) agree with any Person other than the Agent and the Lenders
that the Company and/or its Subsidiaries shall not amend the Loan Documents or
shall not provide any Lien on its assets except usual and customary prohibitions
in agreements respecting Capital Leases permitted by Section 8.1 (Indebtedness)
above, which prohibitions relate only to the assets subject to such Capital
Leases.
8.32 INTEREST RATE PROTECTION.
From the date that is sixty (60) days after the Effective Date and at
all times thereafter, at least forty percent (40%) but no more than one hundred
percent (100%) of Consolidated Total Debt of the Company and its Subsidiaries
shall bear interest at a fixed rate of interest and/or there shall be in effect
Interest Rate Protection Agreements (entered into for at least a two year period
from the date entered into), in form and substance satisfactory to the Agent,
that result in at least forty percent (40%) but no more than one hundred percent
(100%) of Consolidated Total Debt of the Company and its Subsidiaries bearing
interest at a fixed rate of interest. The requirements of this Section 8.32
shall be suspended at any time that the Consolidated Total Leverage Ratio shall
be less than 4.50:1 (as determined in accordance with the financial statements
and Officers' Compliance Certificate delivered to the Lenders pursuant to
Subsection 6.1.5 (Delivery of Officers' Compliance Certificate) hereof. Any
prepayment, acceleration, reduction, increase or any change in the terms of the
Loans will not alter the notional amount of any such Interest Rate Protection
Agreements or otherwise affect the Company's obligation to continue making
payments under any such Interest Rate Protection Agreement, which will remain in
full force and effect notwithstanding any such prepayment, acceleration,
reduction, increase or change, subject to the terms of such Interest Rate
Protection Agreement.
8.33 ENVIRONMENTAL MATTERS.
The Company shall not, and shall not allow any of its Subsidiaries to,
(a) use or knowingly permit any Person to use any of the real property owned or
occupied by the Company or any Subsidiary of the Company for the purposes of
treating, producing, handling, transferring, processing, transporting,
disposing, storing or otherwise releasing Hazardous Substances in violation of
any Environmental Laws, or (b) cause or knowingly permit to exist as the result
of an intentional or unintentional action or omission on the part of the Company
or any Subsidiary of the Company or any Person who occupies any real property
owned or occupied by the Company or any Subsidiary of the Company, the
Releasing, spilling, leaking, pumping, pouring, emitting or dumping from, or on
any real property owned or occupied by the Company or any Subsidiary of the
Company of any Hazardous Substance in violation of any Environmental Law,
except, in any such case, to any extent which could not have a Material Adverse
Effect.
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8.34 CORPORATE SEPARATENESS.
The Company shall conduct its business and operations separate
from that of each of its Subsidiaries and from SPC and its other Subsidiaries.
Susquehanna Cable and each of its Subsidiaries shall conduct their business and
operations separately from that of Susquehanna Radio and each of its
Subsidiaries. Each of the foregoing shall take all such actions as are
appropriate to preserve such separation including, without limitation, not
commingling funds or other assets of SPC and its Subsidiaries (other than the
Company and the Subsidiaries of the Company) with the funds or other assets of
the Company and/or its Subsidiaries and (subject to the last sentence of this
Section 8.34) not commingling funds or other assets of Susquehanna Cable and
each of its Subsidiaries with the funds or assets of Susquehanna Radio and each
of its Subsidiaries and maintaining separate corporate and financial records and
observing all corporate and partnership formalities. It is understood that SPC
may provide certain administrative support to such Persons, that SPC and such
Persons may have a common employee stock ownership plan (including the ESOP) or
pension or other retirement plan, and that SPC and such Persons may have certain
common employees, so long as accurate records are kept of the allocation of each
such Person's respective obligations to bear its proportionate share of the
costs of any such support or employees and of the funds of each such Person
and/or the employees of such Person in a common employee stock ownership plan or
pension or other retirement plan. It is further understood that the Company and
its Subsidiaries may utilize common cash management services among themselves
(but not together with SPC or its other Subsidiaries), so long as accurate
separate financial records are kept for the Company and each of its
Subsidiaries.
ARTICLE 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
"Event of Default" wherever used herein means any one of the
following events (whatever the reason for such Event of Default, whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court, or any order, rule or regulation
of any administrative or governmental instrumentality):
9.1.1 FAILURE TO PAY PRINCIPAL. If the Company shall fail to
make any payment of the principal of the Loans on the dates when the same shall
become due and payable, whether at stated maturity or at a date fixed for any
installment or prepayment thereof or otherwise; or
9.1.2 FAILURE TO PAY INTEREST, FEES, REIMBURSEMENT
OBLIGATIONS, ETC. If the Company shall fail to make any payment of interest on
the Loans, the Commitment Fees, reimbursement obligations in respect of Letters
of Credit or any other amounts owing hereunder (other than principal of the
Loans) or under any Letters of Credit on the dates when such interest,
Commitment Fees or other amounts shall become due and payable and such failure
continues for more than three (3) Business Days; or
9.1.3 CROSS DEFAULT TO INDEBTEDNESS. (a) If the Company or any
of its Subsidiaries shall default (as payor or guarantor or other surety) in the
payment of (i) any principal of or premium or interest on any Indebtedness
(other than obligations which are covered in Subsections 9.1.1 or 9.1.2 above),
or (ii) any direct or contingent reimbursement obligations arising on account of
the issuance of a letter of credit (other than those covered by
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Subsection 9.1.2 above), or (iii) any payment required to be made under any
Interest Rate Protection Agreement or other agreement having a similar purpose,
and the underlying obligation referred to in clauses (i), (ii) and/or (iii) with
respect to which a default has occurred aggregates Ten Million Dollars
($10,000,000) or more or could result in a required payment of Ten Million
Dollars ($10,000,000) or more, or (b) if any event shall occur or condition
shall exist in respect of any such (i) Indebtedness, (ii) direct or contingent
reimbursement obligations, or (iii) payment obligations under any Interest Rate
Protection Agreement or other agreement having a similar purpose, or under any
evidence of any of the foregoing obligations referred to in clauses (i), (ii)
and (iii) or under any mortgage, indenture or other agreement relating thereto
which would permit, or shall have caused, the acceleration of the payment, time
for payment or maturity of any such obligations, and such default, event or
condition referred to in clauses (a) and/or (b) shall continue for more than the
period of grace, if any, specified therein and shall not have been waived
pursuant thereto; or
9.1.4 OTHER CROSS-DEFAULTS. If the Company or any of its
Subsidiaries shall default in a payment or performance of any obligation (except
obligations which are covered in Subsections 9.1.1, 9.1.2 and 9.1.3 hereof),
whether now or hereafter incurred, which default could have a Material Adverse
Effect, and such default shall continue for more than the period of grace, if
any, specified in the agreement or other documents setting forth the terms of
such obligation, or shall not have been waived pursuant thereto; or
9.1.5 MISREPRESENTATIONS. If any representation or warranty
made (a) by the Company in this Agreement or in any other Loan Document or (b)
by the Company or any other Person (other than the Agent, the Issuing Bank or a
Lender) in any document, certificate or statement furnished pursuant to this
Agreement or any other Loan Document, shall be false or misleading in any
material respect when made or deemed made; or
9.1.6 CERTAIN COVENANT DEFAULTS. If there shall occur a
default in the due performance or observance of any term, covenant or agreement
to be performed or observed pursuant to any of Article 7 (Financial Covenants),
Section 8.1 (Indebtedness), Section 8.2 (Liens), Subsection 8.3.3
(Acquisitions), Section 8.4 (Restricted Payments), Section 8.5
(Sale-Leasebacks), Section 8.7 (Merger and Dispositions), the first sentence of
Subsection 8.8.1 (Limitations on Management Arrangements), Section 8.9
(Existence) (insofar as such section requires the preservation of existence of
the Company and its Subsidiaries), Section 8.10 (Compliance with Law), Section
8.11 (Payment of Taxes and Claims), Section 8.14 (Matters Relating to the ESOP),
Section 8.17 (Maintenance of Records; Fiscal Year), Section 8.18 (Inspection),
Sections 8.22 (Consistent Action - Voting) through 8.27 (Payment of
Indebtedness; Subordination), Section 8.31 (Limitations on Certain Restrictive
Provisions), and Section 8.34 (Corporate Separateness); or
9.1.7 OTHER COVENANT DEFAULTS. If there shall occur any
default in the due performance or observance of any term, covenant or agreement
to be performed or observed pursuant to the provisions of this Agreement, other
than as provided in Subsections 9.1.1, 9.1.2, 9.1.3, 9.1.4 and/or 9.1.6 above,
or any agreement incidental hereto (other than as provided in Subsection 9.1.8)
and, if capable of being remedied, such default shall continue unremedied after
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the earlier of thirty (30) days after notice of the default shall have been
given to the Company or thirty (30) days after the Company becomes aware, or
should in the exercise of reasonable diligence have become aware, of such
default, provided, that if such default is of such nature that it can be
remedied by the Company but not within such period, the same shall not
constitute an Event of Default until the forty-fifth (45th) day (rather than the
30th day) so long as the Company institutes remedial action within such thirty
(30) day period and continuously and diligently pursues the same; or
9.1.8 OTHER LOAN DOCUMENT DEFAULTS; SECURITY. If any of the
parties, other than the Agent, the Issuing Bank and the Lenders, to any of the
Loan Documents (other than this Agreement) shall fail to perform any of its
obligations under any of such agreements (after taking into account any
applicable cure period set forth in such agreements); or if the validity of this
Agreement or any of the other Loan Documents shall have been challenged or
disaffirmed by or on behalf of any of such parties thereto; or if, other than as
a direct result of any action of the Agent, the Issuing Bank or the Lenders, any
Liens created or intended to be created by any of the Loan Documents shall at
any time cease to be valid and perfected first priority Liens, subject to no
equal or prior Liens except Permitted Liens; or
9.1.9 CUSTODY OR CONTROL OF ASSETS. If custody or control of
any substantial part of the property of SPC, the Company or any of the Company's
Subsidiaries shall be assumed by any governmental agency or any court of
competent jurisdiction, at the insistence of any governmental agency, or if any
governmental regulatory authority shall take any final action the effect of
which could have a Material Adverse Effect; or
9.1.10 DISCONTINUANCE OF BUSINESS; INSOLVENCY. If SPC, the
Company or any of the Company's Subsidiaries shall suspend or discontinue its
business, shall make an assignment for the benefit of creditors or a composition
with creditors, shall generally not be paying its debts as they mature, shall
admit its inability to pay its debts as they mature, shall file a petition in
bankruptcy, shall become insolvent (howsoever such insolvency may be evidenced),
shall be adjudicated insolvent or bankrupt, shall petition or apply to any
tribunal for the appointment of any receiver, custodian, liquidator or trustee
of or for it or any substantial part of its property or assets, shall commence
any proceeding relating to it under any bankruptcy, reorganization, arrangement,
readjustment of debt, receivership, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect; or if there shall be
commenced against SPC, the Company or any of the Company's Subsidiaries, any
such proceeding and the same shall not be dismissed within sixty (60) days or an
order, judgment or decree approving the petition in any such proceeding shall be
entered against SPC, the Company or any of the Company's Subsidiaries; or if
SPC, the Company or any of the Company's Subsidiaries, shall by any act or
failure to act indicate its consent to, approval of or acquiescence in, any such
proceeding or any appointment of any receiver, custodian, liquidator or trustee
of or for it or for any substantial part of its property or assets, or shall
suffer the appointment of any receiver, liquidator or trustee, or shall take any
corporate action for the purpose of effecting any of the foregoing; or if any
court of competent jurisdiction shall assume jurisdiction with respect to any
such proceeding and the same shall not be dismissed within sixty (60) days or if
a receiver or a trustee or other officer or representative of a court or of
creditors, or if any court, governmental office or agency, shall,
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under color of legal authority, take and hold possession of any substantial part
of the property or assets of SPC, the Company or any of the Company's
Subsidiaries, and shall not have relinquished possession within sixty (60) days,
or if SPC, the Company or any of the Company's Subsidiaries, shall have
concealed, removed, or permitted to be concealed or removed, any part of its
property, with intent to hinder, delay or defraud its creditors, or any of them,
or shall have made or suffered a transfer of any of its property which may be
fraudulent under any bankruptcy, fraudulent conveyance or similar law, or if
SPC, the Company or any of the Company's Subsidiaries, shall have made any
transfer of its property to or for the benefit of a creditor which constitutes a
preferential transfer under any bankruptcy or similar law, or if SPC, the
Company or any of the Company's Subsidiaries, shall have suffered or permitted,
while insolvent, any creditor to obtain a lien upon any of its property through
legal proceedings or distraint; or
9.1.11 FCC LICENSES AND OTHER FRANCHISES. If the FCC or any
cable franchising authority or any other governmental agency (i) revokes,
terminates, suspends, fails to renew or extend, or substantially and adversely
modifies any Franchise(s) held by the Company or any of its Subsidiaries (any
such occurrence is herein referred to as an "Adverse Event") and the sum of (x)
that portion of the EBITDA attributable to the Franchise(s) affected by an
Adverse Event determined for the fiscal year immediately preceding such Adverse
Event, plus (y) that portion of the EBITDA attributable to all other
Franchise(s) affected by an Adverse Event since the Effective Date, (in each
case determined for the fiscal year immediately preceding the Adverse Event),
exceeds 10% of EBITDA determined for the fiscal year immediately preceding the
most recent Adverse Event, or (ii) commences a proceeding in which the FCC or
such cable franchising authority or other governmental authority or agency seeks
to suspend, revoke, terminate or substantially or adversely modify any
Franchise(s) (and such suspension, revocation, termination or modification is
not dismissed or discharged within 180 days) which, either alone or in
combination with other Franchises with respect to which any such proceeding has
been commenced and not been dismissed or discharged, contributed more than 10%
of EBITDA determined for the fiscal year most recently ended; or
9.1.12 MATERIAL ADVERSE EFFECT. If there shall occur or be
threatened any event, or if there shall exist any fact or condition, which could
have a Material Adverse Effect; or
9.1.13 JUDGMENTS. If any final judgment or judgments or
non-appealable assessment or assessments for the payment of money in excess of
Five Million Dollars ($5,000,000) in the aggregate shall be rendered against
SPC, the Company or any of the Company's Subsidiaries and such judgment remains
either unstayed or unsatisfied for a period of thirty (30) days or more; or
9.1.14 CHANGE OF CONTROL. If there shall occur a Change of
Control; or
9.1.15 COMCAST MATTERS. If Comcast assumes management control
of Susquehanna Cable or any of its Subsidiaries pursuant to the Comcast
Agreement; or
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9.1.16 LOSS OF TAX QUALIFICATION OF ESOP. If the IRS issues a
final notice (i.e., a notice that can no longer be appealed within the IRS
itself) that the ESOP has been disqualified for favorable tax treatment.
9.1.17 SUBORDINATION. If the obligations in respect of the
Senior Subordinated Notes and Senior Subordinated Indentures or any other
subordinated debt agreement or instrument cease to be fully subordinated to all
of the obligations under this Agreement; or if there is a "Change of Control"
within the meaning of the Senior Subordinated Indentures or any other
subordinated debt agreement or instrument or if any other event or condition
shall exist which requires the Company to purchase or prepay (or offer to
purchase or prepay) all or any portion of the obligations under the Senior
Subordinate Notes or Senior Subordinated Indentures or any other subordinated
debt agreement or instrument.
9.2 ACCELERATION; REMEDIES.
9.2.1 REMEDIES IN GENERAL. Upon the occurrence of any event
described in Section 9.1.10 (Discontinuance of Business; Insolvency), the entire
unpaid principal balance of the Notes, and interest accrued and premium, if any,
thereon, and any unpaid accrued Commitment Fees and all other amounts accrued
hereunder or under the other Loan Documents, shall be immediately due and
payable by the Company and the Commitment shall terminate without presentation,
demand, protest, notice of protest or other notice of dishonor of any kind, all
of which are hereby expressly waived by the Company. Upon the occurrence of any
other Event of Default, or at any time thereafter, if any Event of Default shall
then be continuing, the Agent may (and shall if directed by the necessary
Lenders pursuant to Subsection 12.12.1 (Actions by Agent)) by written notice to
the Company, declare the entire unpaid principal balance or any portion of the
principal balance of all or any of the Notes, and interest accrued and premium,
if any, thereon and any unpaid accrued Commitment Fees and all other amounts
accrued hereunder or under the other Loan Documents, to be immediately due and
payable by the Company and the Commitment shall terminate or, if no principal
balance shall be outstanding, the Agent may terminate the Commitment. Such
principal and interest, premium, fees, and other amounts shall thereupon become
and be immediately due and payable, without presentation, demand, protest,
notice of protest or other notice of dishonor of any kind, all of which are
hereby expressly waived by the Company; and the Agent (acting directly or
through appointment of one or more trustees of the Agent's choosing) may proceed
to protect and enforce its rights and those of the Issuing Bank, the Lenders and
other Senior Secured Parties under the Loan Documents in any manner or order it
deems expedient without regard to any equitable principles of marshalling or
otherwise. It is agreed that, in addition to all other rights hereunder or under
law, the Agent shall have the right to institute proceedings in equity or other
appropriate proceedings for the specific performance of any covenant or
agreement made in any of the Loan Documents or for an injunction against the
violation of any of the terms of any of the Loan Documents or in aid of the
exercise of any power granted in any of the Loan Documents or by law or
otherwise. Further, the Lenders shall be entitled to the appointment of a
trustee or receiver for all or any part of the businesses of the Company or any
of its Subsidiaries, which trustee or receiver shall have such powers as may be
conferred by the appointing authority. All rights and remedies given by this
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Agreement, the Notes and the other Loan Documents are cumulative and not
exclusive of any of such rights or remedies or of any other rights or remedies
available to the Agent or any Lender, and no course of dealing between the
Company and the Agent or any Lender or any delay or omission in exercising any
right or remedy shall operate as a waiver of any right or remedy, and every
right and remedy may be exercised from time to time and as often as shall be
deemed appropriate by the Agent or any Lender.
9.2.2 WAIVERS. The Agent may (if authorized pursuant to
Subsection 12.11 (Amendments, Waivers and Consents)), by written notice to the
Company, at any time and from time to time waive in whole or in part, and
absolutely or unconditionally, any Event of Default. Any such waiver shall be
for such period and subject to such conditions or limitations as may be
specified in any such notice. In the case of any such waiver, the rights of the
Agent and the Lenders shall be otherwise unaffected and any Event of Default so
waived shall be deemed to be cured and not continuing only to the extent and on
the conditions or limitations set forth in such waiver (unless such waiver shall
state to the contrary), but no such waiver shall extend to any subsequent or
other Event of Default, or impair any right upon the occurrence of any Event of
Default.
9.2.3 REGULATORY MATTERS. If counsel to the Agent, the Issuing
Bank or any Lender, as the case may be, reasonably determines that the consent
of the FCC, any PUC, or other applicable regulatory authority is required in
connection with any of the actions which may be taken by the Agent, the Issuing
Bank or any of the Lenders, as the case may be, in the exercise of their rights
hereunder or under the other Loan Documents, then the Company, at its sole cost
and expense, shall use its best efforts to secure such consent and to cooperate
fully with the Agent, the Issuing Bank or the Lenders, as the case may be, in
any action commenced by any such Person, to secure such consent. Upon the
occurrence and during the continuation of an Event of Default, the Company,
subject to the provisions of applicable law, shall promptly execute and file
and/or cause the execution and filing of all applications, certificates,
instruments and other documents that the Agent, the Issuing Bank or the Lenders
deem necessary or advisable to file in order to obtain any governmental consent,
approval, or authorization, and if the Company fails or refuses to execute, or
fails or refuses to cause another Person to execute, such documents, the clerk
of any court with jurisdiction over the Loan Documents may execute and file the
same on behalf of the Company. The Company recognizes that the FCC Licenses and
other Franchises held by the Company and its Subsidiaries are unique assets
which may have to be transferred in order for the Lenders and other Senior
Secured Parties adequately to realize the value of their security interests. The
Company further recognizes that a violation of this covenant would result in
irreparable harm to the Lenders and other Senior Secured Parties for which
monetary damages are not readily ascertainable. Therefore, in addition to any
other remedy which may be available to the Agent, the Lenders or other Senior
Secured Parties, as the case may be, at law or in equity, the Agent, the Lenders
or other Senior Secured Parties, as the case may be, shall have the remedy of
specific performance of the provisions of this Subsection. To enforce the
provisions of this Subsection 9.2.3, the Agent is authorized to request the
consent or approval of the FCC, any PUC or other regulatory authority to a
voluntary or an involuntary transfer of control of any FCC License or other
Franchise. In connection with the exercise of its
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remedies under the Loan Documents, the Agent may obtain the appointment of a
trustee or receiver to assume, upon receipt of all necessary judicial, FCC, PUC
or other regulatory authority consents or approvals, control of the Company or
any of its Subsidiaries. Such trustee or receiver shall have all rights and
powers provided to it by law or by court order or provided to the Agent or the
Lenders or other Senior Secured Parties under the Loan Documents. In addition,
the Company shall take, or cause to be taken, any action which the Agent may
reasonably request in order to obtain and enjoy the full rights and benefits
granted to the Agent, the Lenders and other Senior Secured Parties by the Loan
Documents, including, without limitation, at the Company's cost and expense, the
exercise of its best efforts to cooperate in obtaining FCC, any PUC, or other
regulatory approval of any action or transaction contemplated by the Loan
Documents which is then required by law.
9.2.4 CERTAIN LIMITATIONS. Notwithstanding anything to the
contrary contained in this Agreement or any of the other Loan Documents, the
Agent and the Lenders will not knowingly take any action pursuant to this
Agreement or any such documents which would constitute or result in assignment
of an FCC License or other Franchise or any transfer of control of the holder of
an FCC License or other Franchise if such assignment of license or transfer of
control would require under then existing law (including the written rules and
regulations promulgated by the FCC or any PUC), the prior approval of the FCC or
such PUC, without first obtaining such approval. In connection with this
provision, the Agent and the Lenders shall be entitled to rely upon the advice
of counsel of the Agent's choice whether or not the advice rendered is
ultimately determined to have been accurate.
9.3 DEPOSIT ACCOUNTS.
If any Event of Default continues uncured for at least 90
days, then upon the request of the Agent, the Company shall enter into a deposit
account control agreement, in form and substance reasonably satisfactory to the
Agent, with each financial institution that is not a Lender with which the
Company maintains any deposit accounts.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
In order to induce the Issuing Bank and the Lenders to enter
into this Agreement and to make the Loans and other extensions of credit
contemplated by this Agreement, the Company hereby makes the following
representations, covenants and warranties, which representations, covenants and
warranties shall survive the execution and delivery of this Agreement, the Notes
and the other Loan Documents and shall not be affected or waived by any
inspection or examination made by or on behalf of the Agent, the Issuing Bank or
the Lenders:
10.1 STATUS.
10.1.1 ORGANIZATION AND QUALIFICATION. SPC, the Company and
each of the Company's Subsidiaries are duly organized and validly existing
corporations, partnerships or limited liability companies, as applicable, under
the laws of the respective states indicated on Schedule 10.1 and each is in good
standing under the laws of its state of formation. Each of
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SPC, the Company and the corporate Subsidiaries of the Company, has perpetual
corporate existence, and each of SPC, the Company, and the Subsidiaries of the
Company has the corporate, partnership or limited liability company power and
authority to own its property and assets and to transact the business in which
it is engaged or presently proposes to engage. None of SPC, the Company, or any
of the Company's Subsidiaries has failed to qualify to do business in any state
or jurisdiction where the failure to so qualify could have a Material Adverse
Effect.
10.1.2 STOCK OWNERSHIP. All of the common stock of the Company
is owned by SPC. The preferred stock of the Company is owned by Permitted
Holders. The classes of stock of the Company and the principal characteristics
of each such class and the number and percentage interests of each class owned
by SPC and the Permitted Holders are listed on Schedule 10.1. The Company does
not have any Subsidiary and does not presently operate all or any portion of its
businesses through any Person, other than as disclosed on Schedule 10.1.
Schedule 10.1 also correctly lists as to each Subsidiary of the Company on the
date of this Agreement
(a) its name,
(b) the jurisdiction of its incorporation or
organization,
(c) the classes of stock or partnership or other
equity interest issued by such Person and the principal characteristics of each
such class, and
(d) the number and percentage of the issued and
outstanding shares or partnership interests of each class (and certificate
numbers by which such interests are designated) owned by (i) Comcast and (ii)
Permitted Holders.
All the outstanding shares of capital stock of the Company and
of each of its Subsidiaries are validly issued, fully paid and nonassessable,
and all such shares owned by SPC and all such shares and partnership and other
equity interests indicated in Schedule 10.1 as owned by the Company or any of
its Subsidiaries are so owned beneficially and of record by SPC, the Company and
each such Subsidiary, free and clear of any Lien, except for the Lien created
pursuant to the Loan Documents. Schedule 10.1 also correctly lists as to the
Company and each Subsidiary of the Company any options, warrants or other
securities issued by the Company or any Subsidiary of the Company; all such
options, warrants or other securities are held by Permitted Holders or Persons
identified on Schedule 10.1. No Subsidiary owns any shares of the Company as of
the date hereof. Except as set forth on Schedule 10.1, there are no preemptive
rights or other rights to subscribe for or to purchase, or any restriction on
the voting or transfer of any shares of, capital stock of the Company or any
Subsidiary of the Company pursuant to the certificate or articles of
incorporation, bylaws or other governing document or any agreement or other
instrument to which the Company or any Subsidiary of the Company is a party or
by which any of them may be bound. Notwithstanding the foregoing, it is
understood that Susquehanna Cable and, from time to time, other Subsidiaries of
the Company may have certain phantom equity programs as part of their employee
incentive programs, but such phantom equity issued pursuant to such programs
provides only an economic (rather than ownership) benefit to the beneficiaries.
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10.2 POWER AND AUTHORITY.
SPC, the Company and each of the Company's Subsidiaries has
the corporate, partnership or other power to execute, deliver and carry out, as
the case may be, the terms and provisions of the Loan Documents to which each is
a party, and each such Person has taken all necessary corporate, partnership or
other action (including, without limitation, any consent of stockholders or
partners required by law or by their respective articles of incorporation or
bylaws or other organizational documents) to authorize (as applicable to such
Person) the execution, delivery and performance of the Loan Documents to which
each is a party. The Loan Documents, when executed and delivered by SPC, the
Company or the Company's Subsidiaries, as applicable, constitute or will
constitute the authorized, valid and legally binding obligations of such Person
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity (regardless of whether such enforcement is
sought in a court of law or at equity).
10.3 NO VIOLATION OF AGREEMENTS.
The execution and delivery of the Loan Documents, the
consummation of the transactions contemplated by the Loan Documents and
compliance with the terms and provisions of the Loan Documents, will not (x)
violate any provision of law or any injunction or any applicable regulation,
order, writ, judgment or decree of any court or governmental department,
commission, board, bureau, agency or instrumentality applicable to SPC, the
Company or any of the Company's Subsidiaries, or (y) require consent under,
conflict or will be inconsistent with, or will result in any breach of, any of
the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to impose)
any Lien, other than the Liens created under the Loan Documents or Permitted
Liens, upon any of the property or assets of SPC, the Company or any of the
Company's Subsidiaries pursuant to the terms of, any agreement, indenture,
franchise, license, permit, mortgage or deed of trust to which any such Person
is a party or by which any such Person may be bound, or to which any such Person
may be subject, or (z) violate any of the provisions of the articles of
incorporation, bylaws or other organizational document of any such Person.
10.4 RECORDING, ENFORCEABILITY AND CONSENT; VALIDITY OF SECURITY
INTEREST.
(a) Assuming the due recording of the UCC-1 financing
statements delivered in connection herewith, no consent, approval or
authorization of any Person, or recording, filing, registration, notice or other
similar action with or to any Person, is required in order to insure the
legality, validity, binding effect or enforceability of any of the Loan
Documents as against all Persons, except (i) such consents, approvals or
authorizations as have been obtained and remain in effect, (ii) certain consents
respecting the pledge of specific franchises, minority interests and certain
other assets which in the aggregate, do not constitute a material amount of
assets and (iii) such filings as may be required as contemplated in Section 8.30
(Filings). No consent, approval or authorization of any Person which has not
been obtained is required for the continued conduct by the Company or any of its
Subsidiaries of their business as now conducted or as proposed to be conducted.
(b) The Company has delivered, or caused to be delivered, to
the Agent all UCC-1 financing statements in recordable form that may be
necessary to perfect the security interests granted pursuant to the Loan
Documents to the extent that such security instruments may be perfected by
filing. The Company has delivered, or caused to be delivered,
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to the Agent all instruments, documents and investment property necessary to
perfect the security interest granted pursuant to the Loan Documents, to the
extent that a security interest therein may be perfected by delivery. The Agent
has a valid, first priority security interest in all of the equity and Material
Assets of the Company and its Subsidiaries and all of the equity of the Company
owned by SPC and all of the equity of Subsidiaries of the Company owned by the
Company or its Subsidiaries, subject only to Permitted Liens.
10.5 LITIGATION; COMPLIANCE WITH LAWS.
Except as set forth on Schedule 10.5, there are no actions,
suits, protests, reconsiderations or proceedings pending, or to the knowledge of
the Company, threatened, against or affecting SPC, the Company or any of the
Company's Subsidiaries before any court or before any governmental or
administrative body or agency, including without limitation the FCC or any PUC,
wherein unfavorable decisions, rulings or findings individually or in the
aggregate could have a Material Adverse Effect. None of SPC, the Company or any
of the Company's Subsidiaries is in default under the provisions of any
applicable statute, rule, order, writ, injunction, judgment, decree, certificate
or regulation of any governmental authority having jurisdiction in respect of
any such Person, which default could have a Material Adverse Effect.
10.6 NO BURDENSOME AGREEMENTS.
None of SPC, the Company or any of the Company's Subsidiaries
is a party to any agreement or instrument or subject to any corporate or other
restrictions which, assuming compliance by such Persons with the terms of such
agreements or instruments, could have a Material Adverse Effect.
10.7 CONDITION OF PROPERTY; AGREEMENTS.
All of the material properties, equipment and systems of the
Company and its Subsidiaries are in good repair, working order and condition and
are and will be in material compliance with all standards or rules imposed by
any governmental agency or authority (including, without limitation, the FCC,
any PUC, and state or other local governments or instrumentalities) and as
imposed under any Franchise or agreements with telephone companies, other
utility companies and other Persons. Each of the Company and its Subsidiaries
has obtained all material easements and equipment rental or other agreements
necessary for the operation of its business as now conducted.
10.8 FEES.
The Company and each of its Subsidiaries has paid all
franchise, license and other fees and charges which have become due pursuant to
any franchise or permit in respect of its business and has made appropriate
provision as is required by GAAP for any such fees and charges which have
accrued.
10.9 LICENSES.
The Company and each of its Subsidiaries has duly secured all
necessary Franchises from, and has filed all required registrations,
applications, reports and other documents with, and paid all required royalty
and other fees to, the FCC, United States Copyright Office, the Register of
Copyrights, the Copyright Royalty Tribunal, each PUC and other entities
exercising jurisdiction over the provision of cable television and broadcast
radio or the construction of delivery systems therefor, in respect of their
respective businesses as currently conducted, in each case, where the failure to
do any of the foregoing could have a Material Adverse Effect. Without limiting
the generality of the foregoing, the Company and its Subsidiaries hold the FCC
Licenses and Franchises specified on Schedule 10.9 hereto; except as disclosed
on Schedule 10.9, all such FCC Licenses and Franchises are valid and in full
force and effect; no event has occurred which could (i) result in the revocation
or termination of any such FCC License or Franchise, or (ii) materially and
adversely affect any rights of the Company or its Subsidiaries under any such
FCC License or Franchise; and the Company has no reason to believe and no
knowledge that the FCC Licenses and Franchises specified on Schedule 10.9
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will not be renewed in the ordinary course. True and correct copies of all FCC
Licenses and all Franchises listed on Schedule 10.9 have been delivered to any
Lender that has so requested, and true and correct copies of any additional
material FCC Licenses and Franchises secured after the date of this Agreement by
the Company or any of its Subsidiaries (including renewals of existing FCC
Licenses and Franchises) shall be promptly delivered to any Lender that so
requests.
Schedule 10.9 correctly lists (a) the FCC Licenses which are
held by the Company or its Subsidiaries and (b) the other Franchises which are
held by such Persons, (c) the geographical area to which each such FCC License
or other Franchise relates and (d) the expiration date, if any, of each such FCC
License or other Franchise. Each Franchise issued to the Company or its
Subsidiaries is in full force and effect and each of the Company and its
Subsidiaries has fulfilled and performed all of its material obligations with
respect to each such Franchise. No event has occurred which permits, or after
notice or lapse of time or both would permit, revocation or termination of any
such Franchise, or which materially adversely affects or, so far as the Company
can now foresee, will materially adversely affect the rights of a holder of any
such Franchise.
10.10 TITLE TO PROPERTIES; LIENS.
The Company and each of its Subsidiaries has good and
marketable title to its properties and assets, including the properties and
assets reflected in the financial statements referred to in Subsection 10.14.1
(Financial Statements) (except properties and assets disposed of since the date
thereof in the ordinary course of business and properties and assets held under
Capital Leases), and none of such properties or assets is subject to any Liens
except Permitted Liens. Each of the Company and its Subsidiaries enjoys peaceful
and undisturbed possession under all leases necessary in any material respect
for the operation of such properties and assets, and all such leases are valid
and subsisting and are in full force and effect.
10.11 PATENTS, TRADEMARKS, ETC.
Each of the Company and its Subsidiaries holds or has agreed
to purchase all patents, trademarks, service marks, trade names, copyrights,
franchises, licenses (including FCC Licenses and Franchises) and authorizations,
and all rights with respect to the foregoing, necessary for the conduct of its
business as now conducted, without any known material conflict with the rights
of others and subject only to Permitted Liens. Neither the Company nor any of
its Subsidiaries owns any material copyrights.
10.12 NAMES.
None of SPC, the Company or any of the Company's Subsidiaries
uses or has used for any material purposes within the past five (5) years any
fictitious, trade or assumed name other than "BlazeNet" or "Susquehanna
Communications."
10.13 MANAGEMENT AGREEMENT.
Except for management agreements permitted by Subsection 8.8.1
(Limitations on Management Arrangements), the Company and its Subsidiaries are
not parties to any management or other similar agreement.
10.14 FINANCIAL STATEMENTS AND PROJECTIONS.
10.14.1 FINANCIAL STATEMENTS. The Company has delivered to
each of the Lenders and the Issuing Bank complete and correct copies of the
unaudited financial statements of the Company and its Subsidiaries for the
fiscal year ended December 31, 2003. Such financial statements delivered to the
Lenders and the Issuing Bank have been prepared in accordance with GAAP applied
on a consistent basis throughout the period specified and present fairly in all
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material respects the financial position of the Company and its Subsidiaries as
of the date specified and the results of operations and statements of cash flow
for the period specified. Officers' Certificates delivered to the Lenders and
the Issuing Bank after the date of this Agreement which certify the truth and
accuracy of the representations (including those set forth in Sections 10.14 and
10.15) shall be deemed to apply to financial statements which the Company has
most recently delivered to the Lenders and the Issuing Bank as of the time of
such certification.
10.14.2 PROJECTIONS. The operating projections submitted on
behalf of the Company to the Lenders and the Issuing Bank pursuant to Subsection
5.1.12 (Financial Statements; Projections) present to the best of the Company's
knowledge and belief based on the assumptions set forth in such projections the
expected results of operations and sources and uses of cash of the Company for
the periods covered by the projections.
10.15 CHANGES.
Since December 31, 2002, there has been no Material Adverse
Change. Neither the Company nor any of its Subsidiaries has since December 31,
2002 directly or indirectly declared, ordered, paid, made or set apart any sum
or property for any Restricted Payment or agreed to do so, except (a) prior to
the Effective Date, transactions permitted under the Existing Facilities, and
(b) after the Effective Date, transactions permitted by this Agreement.
10.16 TAX RETURNS AND PAYMENTS.
All tax returns required by law to be filed (including
extensions) by or in respect of each of SPC, the ESOP, the Company and the
Company's Subsidiaries have been filed and all taxes, assessments and other
governmental charges levied upon them and any of their respective properties,
assets, income or franchises which are due and payable have been paid, other
than those presently payable without penalty or interest. The Company knows of
no unpaid assessment for additional federal or state income or business and
occupation taxes for any period or any basis for any such assessment for which
adequate provision has not been made in its accounts or in the balance sheets
referred to in Section 10.14 (Financial Statements and Projections).
10.17 INDEBTEDNESS.
Schedule 10.17 correctly describes all secured and unsecured
Indebtedness of the Company and each of its Subsidiaries outstanding or for
which any such Person has commitments. The Company and its Subsidiaries are not
in default beyond any applicable grace period with respect to any Indebtedness
or any instrument or agreement relating to such Indebtedness. No instrument or
agreement relating to any Indebtedness and no instrument or agreement applicable
to or binding on the Company or any of its Subsidiaries contains any
restrictions on the incurrence by the Company or any Subsidiary of the Company
of additional Indebtedness, except the Loan Documents and the Senior
Subordinated Indentures.
10.18 FEDERAL RESERVE REGULATIONS.
No Indebtedness that is required to be, or will be, reduced or
retired from the proceeds of the Loans was incurred for the purpose of
purchasing or carrying any "margin stock" within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System (12 C.F.R. 221, as
amended), and neither the Company nor any of its Subsidiaries owns or has any
present intention to acquire any such margin stock.
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10.19 INVESTMENT COMPANY ACT.
None of SPC, the Company or any of the Company's Subsidiaries
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
10.20 PUBLIC UTILITY HOLDING COMPANY ACT.
None of SPC, the Company or any Subsidiary of the Company is a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935, as amended.
10.21 COMPLIANCE WITH ERISA AND ESOP MATTERS.
10.21.1 PLANS. None of SPC, the Company, any of the Company's
Subsidiaries or any ERISA Affiliate maintains or contributes to any Plan or
other pension or similar employee benefit plan, except as disclosed in Schedule
10.21.
10.21.2 FAVORABLE DETERMINATION LETTERS. Each Plan as most
recently amended (except for any amendment (i) to comply with the Code's minimum
distribution rules which uses the Internal Revenue Service's model amendment for
such rules that was provided by Revenue Procedure 2002-29 or (ii) to comply in
good faith with the Economic Growth and Tax Relief Reconciliation Act of 2001),
which is intended to be qualified within the meaning of Section 401 of the Code,
is the subject of a current favorable determination by the Internal Revenue
Service with respect to its qualification under Section 401 of the Code. SPC has
received a current favorable determination letter issued by the Internal Revenue
Service stating that the ESOP, as amended up to the date of this Agreement
(except for any amendment (i) to comply with the Code's minimum distribution
rules which uses the Internal Revenue Service's model amendment for such rules
that was provided by Revenue Procedure 2002-29 or (ii) to comply in good faith
with the Economic Growth and Tax Relief Reconciliation Act of 2001), is
qualified for favorable tax treatment under Section 401 and as applicable,
Section 409 of the Code.
10.21.3 COMPLIANCE WITH LAW. The Company, its Subsidiaries and
the ERISA Affiliates have operated each Plan in all material respects in
compliance with the requirements of the Code and ERISA and the terms of each
Plan.
10.21.4 ABSENCE OF CERTAIN CONDITIONS. Except as specifically
disclosed in Schedule 10.21: (1) no Plan has engaged in any transaction in
connection with which SPC, the Company, any of the Company's Subsidiaries or any
ERISA Affiliate could be subject to either a material civil penalty assessed
pursuant to Section 502(i) of ERISA or a material tax penalty imposed pursuant
to Section 4975 of the Code, (2) there is no Accumulated Funding Deficiency with
respect to any Employee Pension Plan, whether or not waived, or an unfulfilled
obligation to contribute to any Multiemployer Plan or withdrawal from any
Multiemployer Plan, (3) no Employee Pension Plan has been terminated under
conditions which resulted or could result in any material liability to the PBGC,
(4) no material liability to the PBGC has been or is expected
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by the Company to be incurred with respect to any Plan maintained by SPC, the
Company or any of the Company's Subsidiaries or ERISA Affiliates except for
required premium payments to the PBGC, (5) there has been (a) since January 1,
1995 no Reportable Event with respect to any Employee Pension Plan (except to
the extent that the PBGC has waived such reporting requirement with respect to
any such event), and (b) no event or condition which presents a material risk of
termination of any Employee Pension Plan by the PBGC, in either case involving
conditions which could result in any liability to the PBGC, (6) none of SPC, the
Company and any of the Company's Subsidiaries or any ERISA Affiliate has
incurred or anticipates incurring Withdrawal Liability with respect to any
Multiemployer Plan, (7) no Multiemployer Plan is in Reorganization, (8) SPC, the
Company, the Company's Subsidiaries and the ERISA Affiliates have complied in
all material respects with the health continuation coverage requirements of
COBRA and the requirements of the Health Insurance Portability and
Accountability Act of 1996, (9) there is no unfunded liability in respect of any
Plan, (10) there is not now, and has not been, any violation of the Code or
ERISA with respect to the filing of applicable reports, documents, and notices
regarding any Plan with the Secretary of Labor, the Secretary of the Treasury,
the PBGC or any other governmental entity or the furnishing of such documents to
the participants or beneficiaries of such Plan, and (11) as of the Closing Date
except as set forth on Schedule 10.21, no Employee Pension Plan has experienced
a partial termination whether as a result of the freezing of benefit accruals
thereunder or otherwise.
10.21.5 ABSENCE OF CERTAIN LIABILITIES. No liability (whether
or not such liability is being litigated) has been asserted against SPC, the
Company, any of the Company's Subsidiaries or any ERISA Affiliate in connection
with any Employee Pension Plan or any Multiemployer Plan by the PBGC other than
for required premium payments to the PBGC, by a trustee appointed pursuant to
Section 4042(b) or (c) of ERISA, or by a sponsor or an agent of a sponsor of a
Multiemployer Plan, and no lien has been attached and no Person has threatened
to attach a lien on any of SPC's, the Company's, any of the Company's
Subsidiaries' or any ERISA Affiliate's property as a result of failure to comply
with ERISA or as a result of the termination of any Plan.
10.21.6 ESOP VALUATION MATTERS. The ESOP has purchased or will
purchase the shares of stock subject thereto for fair market value as evidenced
by a valuation provided by an independent and nationally-respected third-party
appraiser.
10.21.7 INDEPENDENT REVIEW. The ESOP's purchase of shares, as
described in Subsection 10.21.6 above, was or will be reviewed and approved by
an independent fiduciary of the ESOP.
10.21.8 NO PROHIBITED TRANSACTION. The ESOP Loan is and will
be exempt by Section 4975(d)(3) of the Code and by Section 408(b)(3) of ERISA
from the "prohibited transactions" listed in Section 4975(c) of the Code and in
Section 406 of ERISA, respectively; and (ii) the purchase of shares of stock in
SPC by the ESOP is and will be exempt by Section 4975(d)(13) of the Code and by
Section 408(e) of ERISA from such "prohibited transactions."
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10.21.9 ESOP LIABILITIES. Under the terms of the ESOP and the
ESOP Sharing Agreement, the Company is not, and will not at any time (by means
of an amendment to the ESOP Plan or otherwise) be, liable for the ESOP
Compensation Expense or ESOP Repurchase Payments related to any Persons that are
not employees of the Company and its Subsidiaries.
10.21.10 ANNUAL CONTRIBUTION TO ESOP. Under the terms of the
ESOP, a participating employer in the ESOP is required to contribute the ESOP
Compensation Expense on an annual basis to the ESOP's trust fund.
10.21.11 FAILURE TO PAY ESOP COMPENSATION EXPENSE. Under the
terms of the ESOP and the ESOP Loan, if a party other than the Company fails to
contribute its ESOP Compensation Expense, it may result in the ESOP's default on
the ESOP Loan, but will not have a Material Adverse Effect on the Company.
10.21.12 FIDUCIARY LIABILITY. Any breach of fiduciary
responsibilities under ERISA by a fiduciary of the ESOP will not have a Material
Adverse Effect on the Company.
10.21.13 CODE SECTION 1042 TREATMENT. To the extent the ESOP's
purchase of shares, as described in Subsection 10.21.6 above, is from an
outstanding shareholder and is intended to allow such shareholder to elect the
non-recognition of gain provided in Section 1042 of the Code, (a) during the
three-year period after the date the ESOP acquires such shares, the ESOP will
not dispose of such shares in any manner that would cause the imposition of an
excise tax under Section 4978 of the Code on SPC or any of its Affiliates or the
Company or any ERISA Affiliates, and (b) while the ESOP holds such shares, the
ESOP will not allocate such shares within the ESOP in any manner that would
cause the imposition of an excise tax under Section 4979A of the Code on SPC or
any of its Affiliates or the Company or any ERISA Affiliates.
10.22 ACCURACY AND COMPLETENESS OF DISCLOSURE.
Neither this Agreement nor any other document, certificate or
instrument delivered to the Agent or Lenders by or on behalf of SPC, the Company
or any of the Company's Subsidiaries in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained in this Agreement and in such other documents, certificates or
instruments not misleading in light of the circumstances under which such
statements were made.
10.23 ADEQUACY OF CAPITAL.
The proceeds of the Loans, together with the proceeds of
Indebtedness permitted under Section 8.1 (Indebtedness), will be sufficient
until satisfaction in full of the Loans to enable the Company and its
Subsidiaries to operate their respective businesses as currently contemplated by
the Company.
10.24 ABSENCE OF RESTRICTIVE PROVISIONS.
Other than this Agreement and the Senior Subordinated
Indentures, none of SPC, the Company or any of the Company's Subsidiaries is
subject or party to any agreement, lien or encumbrance, charter or bylaw,
regulatory, or other provision (except for applicable statutory corporate law),
restricting, directly or indirectly, (a) the payment of
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dividends by a Subsidiary of the Company or the making of advances or other cash
payments by any Subsidiary to the Company, or (b) the ability of SPC, the
Company or any of the Company's Subsidiaries to create, incur, assume or permit
to exist any Lien on or with respect to any property or asset (including,
without limitation, any document or instrument in respect of goods or accounts
receivable) of SPC, the Company or any of the Company's Subsidiaries, provided
that the representation as to SPC in this clause (b) applies only with respect
to SPC's ownership interest in the Company.
10.25 ENVIRONMENTAL COMPLIANCE.
10.25.1 Except as set forth on Schedule 10.25, none of the
real property owned and/or occupied by the Company or any of its Subsidiaries
has to the knowledge of the Company ever been used by previous owners and/or
operators or ever been used by the Company or any of its Subsidiaries to treat,
produce, store, handle, transfer, process, transport, dispose or otherwise
Release any Hazardous Substances in violation of any Environmental Law;
10.25.2 Except as set forth on Schedule 10.25, to the
knowledge of the Company and its Subsidiaries, there is no condition which
exists on the real property owned and/or occupied by the Company or any of its
Subsidiaries which requires Remedial Action;
10.25.3 Neither the Company nor any of its Subsidiaries has
been notified of, or has actual knowledge of any notification having been filed
with regard to, a Release on or into any real property owned and/or occupied by
the Company or any of its Subsidiaries;
10.25.4 Neither the Company nor any of its Subsidiaries has
received a summons, citation, notice of violation, administrative order,
directive, letter or other communication, written or oral, from any governmental
or quasi-governmental authority concerning any intentional or unintentional
action or omission related to the generation, storage, transportation, handling,
transfer, disposal or treatment of Hazardous Substances in violation of any
Environmental Law;
10.25.5 There are no "friable" (as that term is defined in
regulations under the Federal Clean Air Act) asbestos or asbestos-containing
materials which have not been encapsulated in accordance with accepted
guidelines promulgated by the United States Environmental Protection Agency
existing in any real property owned and/or occupied by the Company or any of its
Subsidiaries;
10.25.6 No equipment containing polychlorinated biphenyls,
including electrical transformers, are located on any real property occupied by
the Company or any of its Subsidiaries in levels which exceed those permitted by
any and all governmental authorities with jurisdiction over such premises and
which are not properly labeled in accordance with requisite standards; and
10.25.7 Except as set forth on Schedule 10.25, to the
knowledge of the Company there are no tanks on any real property owned and/or
occupied by the Company or any of its Subsidiaries that have been used for the
storage of petroleum products or any other
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substance, nor, except as to sites set forth on Schedule 10.25, have any such
tanks been located on such property at any time in which a Release in violation
of any Environmental Laws has occurred.
10.25.8 Each of the tanks referred to on Schedule 10.25 have
been registered and tested to the extent required by, and in accordance with,
any applicable Environmental Laws and there is no evidence of leakage from any
such tanks. All tanks that have been removed or abandoned have been closed in
accordance with applicable standards under Environmental Laws.
10.26 SOLVENCY.
The Company and each of its Subsidiaries is Solvent and will
be Solvent after giving effect to the Restricted Payment contemplated by
paragraph (b) of Section 8.4 (Restricted Payments).
10.27 SUBORDINATION.
All of the obligations under the Senior Subordinated
Indentures and Senior Subordinated Notes (if any) are subordinated and junior in
right of payment to all of the Senior Secured Obligations. The Senior Secured
Obligations constitute "Designated Senior Indebtedness" within the meaning of
the Senior Subordinated Indentures. Each of the Subordination Agreements is in
full force and effect and the subordinated obligations referred to therein are
subordinated and junior in right of payment to all of the Senior Secured
Obligations.
ARTICLE 11
MISCELLANEOUS
11.1 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
11.1.1 NOTICES GENERALLY. Except in the case of notices and
other communications expressly permitted to be given by telephone (and except as
provided in Subsection 11.1.2 (Electronic Communication) below), all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows:
(i) if to the Company, to it at 000 Xxxx Xxxxxx Xxxxxx, Xxxx, XX 00000,
Attention of Xxxxx Xxxxxx (Telecopier No. 000-000-0000; Telephone No.
000-000-0000) - cc: Xxxx Xxxxxxx at 000 Xxxx Xxxxxx Xxxxxx, Xxxx, XX 00000,
(Telecopier No. 000-000-0000; Telephone No. 000-000-0000);
(ii) if to the Agent or the Issuing Bank, to Wachovia at 000 Xxxxx
Xxxxxxx Xxxxxx, XX0000, Xxxxxxxxx, XX 00000-0000, Attention of Xxx Xxxxxx
(Telecopier No. 000-000-0000; Telephone No. 000-000-0000) with a copy to 000
Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, XX 00000-0000, Attention Agency Services
(Telecopier No. 704-383-0530); and
(iii) if to a Lender, to it at its address (or telecopier number) set
forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the
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extent provided in Subsection 11.1.2 (Electronic Communication) below, shall be
effective as provided in said Subsection 11.1.2 (Electronic Communication).
11.1.2 ELECTRONIC COMMUNICATION. Notices and other
communications to or by the Agent, the Lenders and the Issuing Bank hereunder
may be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the Agent,
provided that the foregoing shall not apply to notices pursuant to Article 3
(Mechanics of Payment; Tax Forms) unless otherwise agreed by the Agent and the
applicable Lender and, to the extent applicable, the Issuing Bank. The Agent or
the Company may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
Unless the Agent otherwise prescribes, (a) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (b) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
Subsection 11.1.1 (Notices Generally) of notification that such notice or
communication is available and identifying the website address therefor.
11.1.3 CHANGE OF ADDRESS, ETC. Any party hereto may change its
address or telecopier number for notices and other communications hereunder by
notice to the other parties hereto.
All notices or demands given to the Company pursuant to
Section 9.1 (Events of Default), Subsection 9.2.1 (Remedies in General), or
Subsection 9.2.2 (Waivers) of this Agreement shall also be given to Comcast at
the address for Comcast set forth or given pursuant to the Comcast
Subordination, provided that the failure of the Agent, the Issuing Bank or any
Lender to give such notice shall not limit the exercise by the Agent, the
Issuing Bank or any Lender of their rights and remedies under the Loan Documents
or subject the Agent, the Issuing Bank or any Lender to any liability.
11.2 DURATION; SURVIVAL.
All representations and warranties of SPC, the Company, any
Subsidiary of the Company or other pledgor or subordinated party contained in
the Loan Documents and the provision of Section 11.15 (Expenses; Indemnity;
Damage Waiver) shall survive the making of the Loans and shall not be waived by
the execution and delivery of this Agreement, any investigation by the Agent or
the Lenders, the making of the Loans, or payment in full of the Loans. All
covenants and agreements of the Company and such Persons contained in the Loan
Documents shall continue in full force and effect from and after the date of
this Agreement so long as the Company may borrow or obtain Letters of Credit
under this Agreement and until termination of the Commitment and payment in full
of the Loans and all other Senior Secured Obligations.
11.3 NO IMPLIED WAIVER.
No failure or delay on the part of the Agent, the Issuing Bank
or any Lender in exercising any right, power or privilege under the Loan
Documents and no course of dealing between the Company and the Agent, the
Issuing Bank or any Lender shall operate as a waiver of any such right, power or
privilege; nor shall any single or partial exercise of any right, power or
privilege under the Loan Documents preclude any other or further exercise of any
such right, power or privilege or the exercise of any other right, power or
privilege. The rights and remedies expressly
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provided in the Loan Documents are cumulative and not exclusive of any rights or
remedies which the Agent, the Issuing Bank or any Lender would otherwise have.
No notice to or demand on the Company in any case shall entitle the Company to
any other or further notice or demand in similar or other circumstances or shall
constitute a waiver of the right of the Agent, the Issuing Bank or any Lender to
take any other or further action in any circumstances without notice or demand.
11.4 ENTIRE AGREEMENT AND AMENDMENTS.
This Agreement, the Letters of Credit and related documents
and the other Loan Documents represent the entire agreement between the parties
to this Agreement with respect to the Commitment, the Letters of Credit, the
Loans and the transactions contemplated under the Loan Documents and, except as
expressly provided in the Loan Documents, shall not be affected by reference to
any other documents. Neither this Agreement nor any provision of this Agreement
may be changed, waived, discharged or terminated orally, but such may be
accomplished only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought, subject
to the provisions of Section 12.11 (Amendments, Waivers and Consents) in the
case of a waiver to be signed by the Agent. Subject to the provisions of said
Section 12.11, as amended from time to time, the Agent and the Company may enter
into agreements amending, changing or supplementing any of the provisions of
this Agreement, the Notes or any other Loan Document. Similarly, subject to said
Section 12.11, the Agent may waive compliance with any provision of this
Agreement, the Notes or any other Loan Document. It is understood and agreed,
however, that Agent, the Issuing Bank and the Lenders may amend or modify the
provisions of Article 12 (other than the second sentence of Section 12.6
(Resignation of Agent) to the extent it refers to the Company) without the need
for any consent or approval from the Company, it being acknowledged that the
Company and its Subsidiaries are not third party beneficiaries of the provisions
of Article 12 (other than the second sentence of Section 12.6 (Resignation of
Agent) to the extent it refers to the Company).
11.5 SUCCESSORS AND ASSIGNS.
11.5.1 SUCCESSORS AND ASSIGNS GENERALLY. The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
the Company may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of Subsection 11.5.2 (Assignments by Lenders), (ii) by way of participation in
accordance with the provisions of Subsection 11.5.4 (Participants), or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of Subsection 11.5.6 (Certain Pledges) (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in Subsection 11.5.4 (Participants) and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Agent and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
11.5.2 ASSIGNMENTS BY LENDERS. Any Lender may at any time
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it); provided that
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(a) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or, if
the applicable Commitment is not then in effect, the principal outstanding
balance of the Loan of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Agent or, if "Trade Date" is specified in the
Assignment and Assumption in substantially the form annexed to this Agreement as
Exhibit M, as of the Trade Date) shall not be less than $1,000,000, unless each
of the Agent and, so long as no Event of Default or Potential Event of Default
has occurred and is continuing, the Company otherwise consents (each such
consent not to be unreasonably withheld or delayed);
(b) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned, except that
this clause prohibits any Lender from assigning all or a portion of its rights
and obligations among separate tranches on a non-pro rata basis;
(c) except in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, any assignment of a Commitment and/or
Loans must be approved by (i) the Agent, (ii) so long as no Event of Default
shall have occurred and be continuing, the Company, and (iii) in the case of a
Revolving Credit Commitment, the Issuing Bank unless the Person that is the
proposed assignee is itself a Lender with outstanding Loans, a Commitment or
Revolving Credit Commitment, as applicable (whether or not the proposed assignee
would otherwise qualify as an Eligible Assignee) provided, no such consent may
be unreasonably withheld or delayed; and
(d) the parties to each assignment shall execute and deliver
to the Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500, and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Agent pursuant to paragraph
(c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 2.8.6 (Additional Costs,
Unavailability, Etc.), 2.12 (Mitigation Obligations; Replacement of Lenders),
3.5 (Taxes) and 11.15 (Expenses; Indemnity; Damage Waiver) with respect to facts
and circumstances occurring prior to the effective date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Subsection 11.5.4 (Participants).
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11.5.3 REGISTER. The Agent, acting solely for this purpose as
an agent of the Company, shall maintain at one of its offices in Charlotte,
North Carolina a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Company, the Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Company and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
11.5.4 PARTICIPATIONS. Any Lender may at any time, without the
consent of, or notice to, the Company or the Agent, sell participations to any
Person (other than a natural person or the Company or any of the Company's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Company, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver with respect to clauses (a)-(h)
specified in Section 12.11 (Amendments, Waivers and Consents) that affects such
Participant. Subject to paragraph (e) of this Section, the Company agrees that
each Participant shall be entitled to the benefits of Sections 2.8.6 (Additional
Costs, Unavailability, Etc.), 2.12 (Mitigation of Obligations; Replacement of
Lenders) and 3.5 (Taxes) to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Subsection 11.5.2 (Assignment by
Lenders). To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.13 (Set-off) as though it were a Lender,
provided such Participant agrees to be subject to Section 12.14 (Sharing of
Payments by Lenders) as though it were a Lender.
11.5.5 LIMITATIONS UPON PARTICIPANT RIGHTS. A Participant
shall not be entitled to receive any greater payment under Sections 2.8.6
(Additional Costs, Unavailability, Etc.), and 3.5 (Taxes) than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Company's prior written consent. A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.5 (Taxes) unless the Company is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Company, to comply with Subsection 3.5.5(d) as though it were a
Lender.
11.5.6 CERTAIN PLEDGES. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such
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Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
11.6 CALCULATIONS AND FINANCIAL DATA.
Except as otherwise provided in this Agreement, calculations
under this Agreement shall be made and financial data and terms referred to in
this Agreement shall be prepared and interpreted both as to classification of
items and as to amounts in accordance with GAAP. It is hereby acknowledged that
the unaudited quarterly financial statements required by Subsection 6.1.1
(Delivery of Quarterly Financial Statements) of this Agreement shall be deemed
to comply with this Section, notwithstanding that they may not contain
footnotes.
11.7 DESCRIPTIVE HEADINGS.
The descriptive headings of the several sections of this
Agreement are inserted for convenience only and shall not affect the meaning or
construction of any of the provisions of this Agreement.
11.8 GOVERNING LAW; JURISDICTION; ETC.
11.8.1 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the Commonwealth of
Pennsylvania.
11.8.2 SUBMISSION TO JURISDICTION. The Company irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the Commonwealth of
Pennsylvania sitting in
Philadelphia County and of the United States District Court of the Eastern
District of
Pennsylvania, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or any other
Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Pennsylvania Commonwealth court or, to the fullest extent permitted by
applicable law, in such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or in any other Loan Document shall
affect any right that the Agent, any Lender or the Issuing Bank may otherwise
have to bring any action or proceeding relating to this Agreement or any other
Loan Document against the Company or its properties in the courts of any
jurisdiction.
11.8.3 WAIVER OF VENUE. The Company irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to Subsection 11.8.2 (Submission to
Jurisdiction). Each of the parties hereto hereby irrevocably waives, to the
fullest extent
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permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
11.8.4 SERVICE OF PROCESS. Each party hereto irrevocably
consents to service of process in the manner provided for notices in Section
11.1 (Notices; Effectiveness; Electronic Communication). Nothing in this
Agreement will affect the right of any party hereto to serve process in any
other manner permitted by applicable law.
11.9 WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.10 HOLIDAYS.
Except as provided in Subsection 2.8.4 (LIBOR Election) as to
payments with respect to Adjusted LIBOR, whenever any payment to be made under
the Loan Documents shall become due and payable on a day which is not a Business
Day, such payment may be made on the next succeeding Business Day and such
extension of time shall in such case be included in computing interest on such
payment.
11.11 COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION.
11.11.1 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the Agent
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. This Agreement shall become
effective on the Effective Date, and thereafter shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
11.11.2 ELECTRONIC EXECUTION OF ASSIGNMENTS. The words
"execution," "signed," "signature," and words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of
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which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as
the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act.
11.12 MAXIMUM LAWFUL INTEREST RATE.
Notwithstanding any provision contained in this Agreement or
the Notes, the total liability of the Company for payment of interest pursuant
to this Agreement and the Notes shall not exceed the maximum amount of such
interest permitted by law to be charged, collected, or received from the
Company, and if any payments by the Company include interest in excess of such a
maximum amount, each Lender shall apply such excess to the reduction of the
unpaid principal amount due pursuant to this Agreement and the Notes, or if none
is due, such excess shall be refunded to the Company.
11.13 SET-OFF.
Without limitation of any other rights of the Lenders or the
Issuing Bank, if an Event of Default shall have occurred and be continuing, each
Lender, the Issuing Bank, and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and
other obligations (in whatever currency) at any time owing by such Lender, the
Issuing Bank or any such Affiliate to or for the credit or the account of the
Company against any and all of the obligations of the Company now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the
Issuing Bank, irrespective of whether or not such Lender or the Issuing Bank
shall have made any demand under this Agreement or any other Loan Document and
although such obligations of the Company may be contingent or unmatured or are
owed to a branch or office of such Lender or the Issuing Bank different from the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the Issuing Bank and their respective Affiliates under
this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender, the Issuing Bank or their respective
Affiliates may have. Each Lender and the Issuing Bank agrees promptly to notify
the Company and the Agent after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and
application.
11.14 SEVERABILITY.
Every provision of the Loan Documents is intended to be
severable, and if any term or provision of the Loan Documents shall be invalid,
illegal or unenforceable for any reason, the validity, legality and
enforceability of the remaining provisions shall not be affected or impaired
thereby, and any invalidity, illegality or unenforceability in any jurisdiction
shall not affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction. In the event that any provisions affecting
the Lenders' remedies or security interests shall be held illegal, invalid or
unenforceable, the Lenders shall be entitled, among other things, to reduce the
Available Commitment to the lesser of (a) the outstanding principal amount of
the Revolving Loan, as of the date of the rendering of such decision as to
illegality, invalidity or unenforceability or (b) the amount of such outstanding
principal as of the date on which such reduction is made.
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11.15 EXPENSES; INDEMNITY; DAMAGE WAIVER.
11.15.1 COSTS AND EXPENSES. The Company shall pay (i) all
reasonable out-of-pocket expenses incurred by the Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Agent (and fees and time charges for attorneys who may be employees of the
Agent), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of
this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Agent, any Lender or the Issuing Bank, including the fees, charges and
disbursements of any counsel for the Agent, any Lender or the Issuing Bank (and
fees and time charges for attorneys who may be employees of the Agent, any
Lender or the Issuing Bank), in connection with the enforcement or protection of
its rights in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
11.15.2 INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify the Agent (and any sub-agent thereof), each Lender and the Issuing
Bank, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee (and fees
and time charges for attorneys who may be employees of the Agent, any Lender or
the Issuing Bank), incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (a) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the transactions contemplated
hereby or thereby, (b) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit), (c)
any actual or alleged presence or Release of Hazardous Materials on or from any
property owned or operated by the Company or any of its Subsidiaries, or any
Environmental Liability related in any way to the Company or any of its
Subsidiaries, or (d) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
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11.15.3 REIMBURSEMENT BY LENDERS. To the extent that the
Company fails to pay any amount required under Subsections 11.15.1 (Costs and
Expenses) and 11.15.2 (Indemnification by the Company) to be paid by it to the
Agent (or any sub-agent thereof), the Issuing Bank or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Agent (or any such
sub-agent) or its Related Party, and each RC Lender severally agrees to pay the
Issuing Bank or its Related Party, as the case may be, such Lender's Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Agent (or
any such sub-agent) or the Issuing Bank in its capacity as such, or against any
Related Party of any of the foregoing acting for the Agent (or any such
sub-agent) or Issuing Bank in connection with such capacity. The obligations of
the Lenders under this Subsection 11.15.3 are subject to the provisions of
Section 2.4 (Lenders' Obligations Several).
11.15.4 WAIVER OF CONSEQUENTIAL DAMAGES, ETC. To the fullest
extent permitted by applicable law, the Company shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to Subsection
11.15.2 (Indemnification by the Company) above shall be liable for any damages
arising from the use by unintended recipients of any information or other
materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby.
11.15.5 PAYMENTS. All amounts due under this Section shall be
payable promptly after demand therefor.
11.16 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
Each of the Agent, the Lenders and the Issuing Bank agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' partners, directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with any legal proceedings
(including the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder), (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Company and its obligations, (g) with the
consent of the Company or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of
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this Section or (y) becomes available to the Agent, any Lender or the Issuing
Bank on a nonconfidential basis from a source other than the Company.
For purposes of this Section, "Information" means all
information received from the Company or any of its Subsidiaries relating to the
Company or any of its Subsidiaries or any of their respective businesses, other
than any such information that is available to the Agent, any Lender or the
Issuing Bank on a nonconfidential basis prior to disclosure by the Company,
provided that, in the case of information received from the Company after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
ARTICLE 12
AGENT
12.1 APPOINTMENT AND AUTHORITY. Each of the Lenders and the Issuing
Bank hereby irrevocably appoints Wachovia as its agent hereunder and under the
other Loan Documents and authorizes the Agent to take such actions on its behalf
and to exercise such powers as are delegated to the Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the Agent,
the Lenders and the Issuing Bank, and the Company shall not have rights as a
third party beneficiary of any of such provisions.
12.2 RIGHTS AS A LENDER. The Person serving as the Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Agent hereunder in
its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with the Company or
any Subsidiary or other Affiliate thereof as if such Person were not the Agent
hereunder and without any duty to account therefor to the Lenders.
12.3 EXCULPATORY PROVISIONS. The Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Agent
(a) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing,
(b) shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Agent is
required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the relevant Lenders as shall be
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necessary under the circumstances as provided in Sections 11.4 (Entire Agreement
and Amendments) and 9.2 (Acceleration; Remedies)), provided that the Agent shall
not be required to take any action that, in its opinion or the opinion of its
counsel, may expose the Agent to liability or that is contrary to any Loan
Document or applicable law,
(c) shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Company or any of its
Affiliates that is communicated to or obtained by the person serving as the
Agent or any of its Affiliates in any capacity,
(d) shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Sections 11.4 (Entire Agreement and Amendments) and
9.2 (Acceleration; Remedies) or in the absence of its own gross negligence or
willful misconduct, and shall be deemed not to have knowledge of any Default
unless and until notice thereof is given to the Agent by the Company, a Lender
or the Issuing Bank, and
(e) shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article IV (Conditions to Fundings and Issuances of Letters of
Credit) or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Agent.
12.4 RELIANCE BY AGENT. The Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, posting or other distribution) believed by it
to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Agent also may rely upon any statement made to it orally or
by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance
with any condition hereunder to the making of a Loan, or the issuance of a
Letter of Credit, that by its terms must be fulfilled to the satisfaction of a
Lender or the Issuing Bank, the Agent may presume that such condition is
satisfactory to such Lender or the Issuing Bank unless the Agent shall have
received notice to the contrary from such Lender or the Issuing Bank prior to
the making of such Loan or the issuance of such Letter of Credit. The Agent may
consult with legal counsel (who may be counsel for the Company), independent
accountants and other experts selected by it, and shall not be liable for any
action
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taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
12.5 DELEGATION OF DUTIES. The Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the Agent. The
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub-agent and to
the Related Parties of the Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
12.6 RESIGNATION OF AGENT. The Agent may at any time give notice of its
resignation to the Lenders, the Issuing Bank and the Company. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in
consultation with the Company, to appoint a successor. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may on behalf of the Lenders and the
Issuing Bank, appoint a successor Agent, provided that if the Agent shall notify
the Company and the Lenders that no such successor is willing to accept such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Agent shall be discharged from
its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Agent on behalf of the
Lenders or the Issuing Bank under any of the Loan Documents, the retiring Agent
shall continue to hold such collateral security until such time as a successor
Agent is appointed) and (2) all payments, communications and determinations
provided to be made by, to or through the Agent shall instead be made by or to
each Lender and the Issuing Bank directly, until such time as the Required
Lenders appoint a successor Agent as provided for above in this paragraph. Upon
the acceptance of a successor's appointment as Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Agent, and the retiring Agent shall be
discharged from all of its duties and obligations hereunder or under the other
Loan Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Company to a successor Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Company and such successor. After the retiring Agent's resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 11.15
(Expenses; Indemnity; Damage Waiver) shall continue in effect for the benefit of
such retiring Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Agent was acting as Agent.
12.7 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender and the
Issuing Bank acknowledges that it has, independently and without reliance upon
the Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed
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appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Agreement, any other Loan Document
or any related agreement or any document furnished hereunder or thereunder.
12.8 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Arrangers listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the Agent, a
Lender or the Issuing Bank hereunder.
12.9 EXPENSES.
In default of reimbursement or indemnification by the Company,
the Lenders will, in proportion to their respective portions of the Commitment,
reimburse the Agent for and indemnify the Agent against all expense, liability,
penalty and damage of any nature whatsoever (including but not limited to
reasonable attorneys' fees) which may be incurred or sustained by the Agent in
any way in connection with the Loan Documents or its duties under the Loan
Documents provided that (i) no Lender shall be liable for any portion of the
foregoing items resulting from the gross negligence or willful misconduct of the
Agent and (ii) unless an Event of Default has occurred and is continuing (or is
reasonably believed by the Agent to have occurred and be continuing), no Lender
shall be liable for the normal administrative costs and expenses of the Agent
incident to the performance of its duties as Agent under the Loan Documents, but
Lenders shall be liable for all out of pocket costs and expenses of the Agent
(including out of pocket administrative costs) during the existence of an Event
of Default (including one reasonably believed to exist by Agent) after demand
and failure by the Company to pay promptly. The Agent shall not have any
obligation to take any action in connection with the performance of its duties
as Agent under the Loan Documents which, in its opinion, requires the payment of
expenses or the incurrence of liability, if there is a reasonable ground for
belief that reimbursement of such expenses or liability is not reasonably
assured to it.
12.10 INVESTIGATION BY LENDERS.
Each Lender expressly acknowledges that the Agent has not made
any representation or warranty to it and that no act taken by the Agent shall be
deemed to constitute a representation or warranty by the Agent to the Lenders.
Each Lender further acknowledges that it has taken and will continue to take
such action and to make such investigation as it deems necessary to inform
itself of the affairs of the Company and that it has made and will continue to
make its own independent investigation of the creditworthiness and the business
and operations of the Company. In entering into this Agreement, and in making an
advance under this Agreement, each Lender represents that it has not relied and
will not rely upon any information or representations furnished or given by the
Agent or by any other Lender. The Agent shall be under no duty or responsibility
to the Lenders to ascertain or to inquire into the performance or observance by
the Company of any of the provisions of this Agreement or any document or
instrument now or hereafter executed in connection with this Agreement. It is
expressly understood and agreed that the Agent shall not be deemed to have
knowledge of the existence, occurrence or continuance of an Event of Default or
Potential Event of Default, unless the officers of such Agent immediately
responsible for matters concerning this Agreement shall have actual knowledge of
such occurrence or the Agent shall have been notified in writing by any Lender
or the Company that such Lender or the Company, as applicable, considers that an
Event of Default or Potential Event of Default has occurred and is continuing
and specifying the nature of such Event of Default or Potential Event of
Default.
12.11 AMENDMENTS, WAIVERS AND CONSENTS.
With the written consent of the Requisite Lenders, the Agent
may, on behalf of the Lenders, enter into agreements which change, amend or
supplement this Agreement or any other Loan Document, and with such consent,
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the Agent may waive compliance with any provision of any of the Loan Documents,
all as referred to in this Section 12.11. However, no such change, amendment,
supplement or waiver shall, without the consent of each Lender:
(a) increase the maximum amount of (i) the Loans, (ii) the
Available Commitment or (iii) the Commitment, except in connection with an
increase to provide for Term C Loans in an aggregate principal amount not
exceeding $200,000,000 as contemplated by this Agreement or as specifically
provided in this Agreement,
(b) extend the Revolver Maturity Date, the Term A Maturity
Date, the Term B Maturity Date, the Maturity Date or waive a principal or
interest payment due on such date or extend any scheduled amortization date or
waive a principal or interest payment due on such date (but Requisite Lenders
may extend any other mandatory prepayment date); or reduce or forgive any
principal amount of the Loans;
(c) decrease the rate of or extend the date of payment of
interest, provided that the written consent of the Requisite Lenders, rather
than the consent of all Lenders, shall be sufficient to waive imposition of the
Default Rate pursuant to clause (c) of Subsection 2.8.8,
(d) reduce the amount of or extend the date of payment of the
fees payable under Subsection 2.7.1 (Commitment Fees) or other fees payable to
the Lenders,
(e) modify the provisions of this Section,
(f) amend the definition of "Requisite Lenders,"
(g) change the number of Lenders which are required to consent
to any proposed action under this Agreement before such action may be taken
under this Agreement,
(h) release all or substantially all of the guarantors or
Collateral security; provided however, the Agent may without the consent of any
Person release any guarantor or any collateral security granted pursuant to the
Loan Documents and file UCC-3 termination statements or statements of amendment
or take other appropriate action (i) as a court of competent jurisdiction may
direct, (ii) in connection with a disposition (other than to the Company or a
Subsidiary thereof) permitted under Subsection 8.7.2 (which subsection may be
amended by the Requisite Lenders) or as otherwise provided under the Loan
Documents, (iii) if in accordance with this Agreement cash proceeds from any
sale or transfer of the collateral are used to prepay outstanding sums due under
the Loans or are reinvested in the Company and its Subsidiaries, (iv) if such
collateral security is of little or no value (such as certificates representing
stock redeemed or exchanged consistent with the terms of this Agreement or
assets which have been abandoned) as certified by the Company in a written
statement requesting such release or (v) where a filing is no longer required
because of a change in applicable law or for a similar reason.
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12.12 ACTION UPON DEFAULTS.
12.12.1 ACTIONS BY AGENT. Upon the occurrence and during the
continuation of an Event of Default, the Agent upon (a) the request of the
Requisite Lenders and (b) the Lenders (in proportion to their respective
portions of the Loans) providing an indemnity in form and substance reasonably
satisfactory to the Agent (the Agent acknowledging that an indemnity
substantially in the form of the indemnity set forth in Section 11.15 (Expenses;
Indemnity; Damage Waiver) will be satisfactory) of all expenses to the extent
not reimbursed by the Company (including but not limited to reasonable
attorneys' fees and disbursements), shall declare the Notes to be due and
payable and shall, subject to Subsections 9.2.3 (Regulatory Matters) and 9.2.4
(Certain Limitations), proceed to enforce the rights of the holders of the Notes
by such proceedings as the Agent may deem appropriate, whether at law or in
equity. Upon any request as aforesaid, the Agent shall declare the Notes to be
due and payable, but the Agent shall be justified in failing or refusing to take
any further action unless it shall be indemnified to its satisfaction as
aforesaid. It is agreed that if the Agent, having been so indemnified to its
satisfaction as aforesaid, or not having been so indemnified, shall fail to so
proceed, any Lender shall be entitled to take such action as it shall deem
appropriate to enforce its rights. If the exigencies of the circumstances so
require, the Agent may (but is under no circumstances obligated to) declare the
Notes due and payable after an Event of Default without any Lender's direction.
For the purposes of clause (a)(i) above, all Lenders which are part of the same
Family of Funds shall be treated as one Lender.
12.12.2 PROCEEDS OF COLLATERAL. The Agent, on behalf of all
the Lenders, shall hold in accordance with the Loan Documents all items of
collateral or interests therein received or held by the Agent. Subject to the
Agent's rights to reimbursement for its fees, costs and expenses (including,
without limitation, reasonable attorneys fees) and subject to any terms in this
Agreement specifically directing that proceeds be applied otherwise, each Lender
shall have an interest in any collateral or interests therein in the same
proportions that the aggregate outstanding principal amount of the Loans and
obligations under or in respect of Letters of Credit and Interest Rate
Protection Agreements owed such Lender bear to the aggregate outstanding
principal amount of the Loans and obligations under or in respect of Letters of
Credit and Interest Rate Protection Agreements owed to all the Lenders, without
priority or preference among the Lenders.
12.13 INSTRUCTIONS.
The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under the Loan Documents in accordance with written
instructions of the Requisite Lenders or all Lenders, as applicable.
12.14 SHARING OF PAYMENTS BY LENDERS.
If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or other obligations hereunder resulting in such
Lender's receiving payment of a proportion of the aggregate amount of its Loans
and accrued interest thereon or other such obligations greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Agent of such fact, and (b) purchase (for cash
at face value) participations in the Loans
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and such other obligations of the other Lenders, or make such other adjustments
as shall be equitable, to the end that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and other amounts
owing them, provided that
(i) if any such participations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and
(ii) the provisions of this paragraph shall not be construed to apply
to (x) any payment made by the Company pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in Letters of Credit to any assignee or participant,
other than to the Company or any Subsidiary thereof (as to which the provisions
of this paragraph shall apply).
The Company consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Company rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Company in the amount of
such participation.
12.15 OTHER RELATIONSHIPS.
It is acknowledged that the Agent and the Lenders may now or
hereafter have lending or other relationships with the Company and Affiliates of
the Company, and it is agreed that the Agent and the Lenders are free to act
with respect thereto without consulting with one another and without regard to
the effect of any such action or relationship upon the Loans or obligations
hereunder.
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IN WITNESS WHEREOF, the Company, the Agent and the Lenders
have caused this Loan Agreement to be duly executed by their respective, duly
authorized officers as of the date first above written.
SUSQUEHANNA MEDIA CO.
By:
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
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WACHOVIA BANK, NATIONAL ASSOCIATION, in its
capacity as Agent and a Lender
By:
---------------------------------
Name: Xxx Xxxxxx
Title: Director
Wire Transfer Information:
Wachovia Bank, National Association
ABA Number 053 000 219
Account Number 5000000017072
Attention: Syndications Agency Services
Account Name: Susquehanna
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XXXXX BROTHERS XXXXXXXX & CO., as a Lender
By:
---------------------------------
Name:
Title:
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FIRSTRUST BANK, as a Lender
By:
---------------------------------
Name:
Title:
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
a Lender
By:
---------------------------------
Name:
Title:
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UNION BANK OF CALIFORNIA, N.A., as a Lender
By:
---------------------------------
Name:
Title:
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THE BANK OF NEW YORK COMPANY, INC., as a
Lender
By:
---------------------------------
Name:
Title:
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CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By:
---------------------------------
Name:
Title:
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NATIONAL CITY BANK,
as a Lender
By:
---------------------------------
Name:
Title:
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CREDIT INDUSTRIEL ET COMMERCIAL, as a
Lender
By:
---------------------------------
Name:
Title:
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U.S. BANK NATIONAL ASSOCIATION, as a Lender
By:
---------------------------------
Name:
Title:
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GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender
By:
---------------------------------
Name:
Title:
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KEYBANK NATIONAL ASSOCIATION, as a Lender
By:
---------------------------------
Name:
Title:
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BANK OF AMERICA, N.A., as a Lender
By:
---------------------------------
Name:
Title:
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SUNTRUST BANK, as a Lender
By:
---------------------------------
Name:
Title:
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MANUFACTURERS AND TRADERS TRUST
COMPANY (f/k/a Allfirst Bank), as a Lender
By:
---------------------------------
Name:
Title:
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LIST OF ADDENDA (EXHIBITS AND SCHEDULES)
EXHIBITS
Exhibit A-1 Form of RC Note - (Section 2.5)
Exhibit A-2 Form of Term A Note - (Section 2.5)
Exhibit A-3 Form of Term B Note - (Section 2.5)
Exhibit A-4 Form of Swing Note - (Section 2.5)
Exhibit B Request for Advance - (Section 2.6)
Exhibit C LIBOR Election - (Section 2.8.4)
Exhibit D Form of Officers' Certificate as to Applicable Margin - (Section 2.8.3(a))
Exhibit E Form of Security Agreement - (Section 5.1.3)
Exhibit F Form of Guaranty and Suretyship Agreement - (Section 5.1.4)
Exhibit G Form of SPC Pledge Agreement - (Section 5.1.5(a))
Exhibit H Form of Company Pledge Agreement - (Section 5.1.5(b))
Exhibit I Form of Subsidiary Pledge Agreement - (5.1.5(c))
Exhibit J Form of SPC Subordination Agreement - (Section 5.1.6(a))
Exhibit K Form of Comcast Subordination Agreement - (Section 5.1.6(c))
Exhibit L Form of Officers' Compliance Certificate - (Section 5.1.17)
Exhibit M Form of Assignment and Assumption - (Section 11.5.2)
SCHEDULES
Schedule 1.1 Revolving Credit Commitment
Schedule 1.2 Term Loan Commitment
Schedule 4.1 Letters of Credit
Schedule 8.1 Existing Indebtedness
Schedule 8.3.2 Existing Investments
Schedule 8.3.3 FCC Licenses Not Owned by Radio License Subsidiaries
Schedule 8.6 Permitted Transactions with Shareholders and Affiliates
Schedule 8.8 SPC Expense Reimbursement
Schedule 8.15 Insurance
Schedule 10.1 Equity Ownership, Etc.
Schedule 10.5 Litigation
Schedule 10.9 Franchises and Licenses
Schedule 10.17 Outstanding Indebtedness
Schedule 10.21 ERISA
Schedule 10.25 Environmental Compliance
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