1
EXECUTION
EXHIBIT A
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 25, 2001
AMONG
NORTHLAND CABLE PROPERTIES, INC.
NORTHLAND CABLE VENTURES LLC
JOINTLY AND SEVERALLY AS BORROWERS,
THE LENDERS LISTED HEREIN,
AS LENDERS,
BANK OF MONTREAL, CHICAGO BRANCH
AS ADMINISTRATIVE AGENT
BMO NESBITT BURNS
AS ARRANGER AND BOOKRUNNER
U.S. BANK NATIONAL ASSOCIATION
AS SYNDICATION AGENT
AND
BANK OF AMERICA, N.A.
AS DOCUMENTATION AGENT
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TABLE OF CONTENTS
PAGE
SECTION 1.
DEFINITIONS
1.1 Certain Defined Terms...............................................................2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement.25
1.3 Other Definitional Provisions......................................................25
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; Notes................................................25
2.2 Interest on the Loans..............................................................29
2.3 Fees...............................................................................33
2.4 Prepayments and Reductions in Commitments; General Provisions Regarding Payments...34
2.5 Use of Proceeds....................................................................43
2.6 Special Provisions Governing LIBOR Rate Loans......................................43
2.7 Increased Costs; Taxes; Capital Adequacy...........................................45
2.8 Obligation of Lenders to Mitigate..................................................49
2.9 Existing Loans.....................................................................50
2.10 Joint and Several Liability; Payment Indemnifications; etc.........................50
SECTION 3.
CONDITIONS TO LOANS
3.1 Conditions to Initial Loans........................................................51
3.2 Conditions to Certain Revolving Loans..............................................56
3.3 Conditions to All Loans............................................................61
SECTION 4.
BORROWERS REPRESENTATIONS AND WARRANTIES
4.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries, etc.62
4.2 Authorization of Borrowing, etc....................................................64
4.3 Financial Condition................................................................64
4.4 No Material Adverse Change; No Restricted Junior Payments..........................65
4.5 Title to Properties; Liens.........................................................65
4.6 Litigation; Adverse Facts..........................................................65
4.7 Payment of Taxes...................................................................65
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TABLE OF CONTENTS
(CONTINUED)
PAGE
4.8 Performance of Agreements; Materially Adverse Agreements...........................66
4.9 Governmental Regulation............................................................66
4.10 Securities Activities..............................................................66
4.11 Employee Benefit Plans.............................................................66
4.12 Certain Fees.......................................................................67
4.13 Environmental Matters..............................................................67
4.14 Employee Matters...................................................................68
4.15 Solvency...........................................................................68
4.16 Insurance..........................................................................68
4.17 Intellectual Property..............................................................68
4.18 Disclosure.........................................................................68
SECTION 5.
BORROWERS AFFIRMATIVE COVENANTS
5.1 Financial Statements and Other Reports.............................................69
5.2 Limited Liability Company and/or Corporate Existence, etc..........................74
5.3 Payment of Taxes and Claims; Tax Consolidation.....................................74
5.4 Maintenance of Properties; Insurance...............................................74
5.5 Inspection.........................................................................75
5.6 Compliance with Laws, etc..........................................................75
5.7 Environmental Compliance and Inspection............................................75
5.8 Interest Rate Protection...........................................................76
5.9 Mortgages; Mortgage Policies; Etc..................................................76
5.10 Further Assurances.................................................................77
SECTION 6.
BORROWERS NEGATIVE COVENANTS
6.1 Indebtedness.......................................................................78
6.2 Liens and Related Matters..........................................................78
6.3 Investments; Joint Ventures........................................................79
6.4 Contingent Obligations.............................................................79
6.5 Restricted Junior Payments.........................................................80
6.6 Financial Covenants................................................................81
6.7 Restriction on Fundamental Changes; Asset Sales and Acquisitions...................83
6.8 Capital Expenditures...............................................................84
6.9 Sales and Lease-Backs..............................................................84
6.10 Sale or Discount of Receivables....................................................85
6.11 Transactions with Shareholders and Affiliates......................................85
6.12 Disposal of Subsidiary Stock.......................................................85
6.13 Conduct of Business................................................................85
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TABLE OF CONTENTS
(CONTINUED)
PAGE
6.14 Amendments or Waivers of Related Documents and Charter Documents...................86
6.15 Fiscal Year........................................................................86
SECTION 7.
EVENTS OF DEFAULT
7.1 Failure to Make Payments When Due..................................................86
7.2 Default in Other Agreements........................................................86
7.3 Breach of Certain Covenants........................................................87
7.4 Breach of Warranty.................................................................87
7.5 Other Defaults Under Loan Documents................................................87
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc...............................87
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc.................................87
7.8 Judgments and Attachments..........................................................88
7.9 Dissolution........................................................................88
7.10 Employee Benefit Plans.............................................................88
7.11 Material Adverse Effect............................................................88
7.12 Change in Control..................................................................88
7.13 Failure of Security or Guaranty....................................................88
7.14 Franchises.........................................................................89
7.15 Parent Notes.......................................................................89
SECTION 8.
ADMINISTRATIVE AGENT
8.1 Appointment........................................................................90
8.2 Powers and Duties; General Immunity................................................90
8.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness...................................................................92
8.4 Right to Indemnity.................................................................92
8.5 Successor Administrative Agent.....................................................92
8.6 Collateral Documents, Etc..........................................................93
8.7 Appointment of Separate Administrative Agent.......................................94
SECTION 9.
MISCELLANEOUS
9.1 Assignments and Participations in Loans............................................94
9.2 Expenses...........................................................................96
9.3 Indemnity..........................................................................97
9.4 Set-Off; Security Interest in Deposit Accounts.....................................97
9.5 Ratable Sharing....................................................................98
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TABLE OF CONTENTS
(CONTINUED)
PAGE
9.6 Amendments and Waivers.............................................................98
9.7 Independence of Covenants..........................................................99
9.8 Notices............................................................................99
9.9 Survival of Representations, Warranties and Agreements............................100
9.10 Failure or Indulgence Not Waiver; Remedies Cumulative.............................100
9.11 Marshalling; Payments Set Aside...................................................100
9.12 Severability......................................................................100
9.13 Obligations Several; Independent Nature of Lenders' Rights........................100
9.14 Headings..........................................................................101
9.15 Applicable Law....................................................................101
9.16 Successors and Assigns............................................................101
9.17 Consent to Jurisdiction and Service of Process....................................101
9.18 Waiver of Jury Trial..............................................................102
9.19 Confidentiality...................................................................102
9.20 Counterparts; Effectiveness.......................................................103
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III-A FORM OF TERM A NOTE
III-B FORM OF TERM B NOTE
IV FORM OF REVOLVING NOTE
V FORM OF COMPLIANCE CERTIFICATE
VI FORM OF SUBSCRIBER REPORTS
VII CONFORMED COPY OF SECURITY AGREEMENT DATED SEPTEMBER 1, 1998
VIII CONFORMED COPY OF NMG GUARANTY DATED SEPTEMBER 1, 1998
IX FORM OF OPINION OF BORROWERS' COUNSEL
X FORM OF OPINION OF O'MELVENY & MYERS LLP
XI FORM OF FINANCIAL CONDITION CERTIFICATE
XII FORM OF ASSIGNMENT AGREEMENT
XIII FORM OF CERTIFICATE RE NON-BANK STATUS
XIV FORM OF LANDLORD CONSENT LETTER
XV FORM OF MORTGAGE
XVI CONFORMED COPY OF SUBORDINATION AGREEMENT DATED SEPTEMBER 1, 1998
XVII FORM OF ACKNOWLEDGEMENT AND CONSENT
XVIII FORM OF PARENT PLEDGE AGREEMENT
SCHEDULES
1.1A PREMIER ACQUIRED SYSTEMS
1.1B NCP6 ACQUIRED SYSTEMS
1.1C OPERATING CASH FLOW ADJUSTMENT
2.1 LENDERS' COMMITMENTS
4.1E FRANCHISES
4.1G REAL PROPERTY
4.12 FEES
4.16 INSURANCE POLICIES
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EXECUTION
NORTHLAND CABLE PROPERTIES, INC.
NORTHLAND CABLE VENTURES LLC
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is dated as of
May 25, 2001 and entered into by and among NORTHLAND CABLE PROPERTIES, INC., a
Washington corporation ("COMPANY") and NORTHLAND CABLE VENTURES LLC, a
Washington limited liability company ("NCV" and together with Company, on a
joint and several basis, "BORROWERS"), THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (each individually referred to herein as a "LENDER" and
collectively as "LENDERS"), BANK OF MONTREAL, CHICAGO BRANCH ("BANK OF
Montreal") as Administrative Agent for the Lenders (in such capacity,
"ADMINISTRATIVE AGENT").
R E C I T A L S
WHEREAS, Northland Telecommunications Corporation, a Washington
corporation ("NTC") owns all of the issued and outstanding capital stock of
Northland Communications Corporation, a Washington corporation ("PARENT"), which
in turn owns 100% of the issued and outstanding capital stock of Company;
WHEREAS, Company, and Northland Management Group, LLC, a
Washington limited liability company ("NMG") as of the date hereof, are the sole
members of NCV;
WHEREAS, Borrowers and certain financial institutions ("EXISTING
LENDERS") are parties to that certain Amended and Restated Credit Agreement
dated as of September 1, 1998 (as heretofore amended, supplemented or otherwise
modified, the "EXISTING CREDIT Agreement"), pursuant to which Existing Lenders
(capitalized terms used in these Recitals without definition shall have the
respective meanings assigned in subsection 1.1 hereof) made up to $60,000,000 of
credit facilities available to Borrowers in accordance with the terms thereof,
the proceeds of which were used to (i) consummate the acquisition of certain
cable television systems from Northland Cable Properties Four Limited
Partnership and Northland Cable Properties Five Limited Partnership, and the
other transactions contemplated thereby (ii) pay transaction costs, fees and
expenses related to the foregoing and (iii) for general corporate purposes,
including working capital and capital expenditures;
WHEREAS, Borrowers have secured all of the Obligations under the
Existing Credit Agreement by granting to Administrative Agent, on behalf of and
for the ratable benefit of Existing Lenders, a first priority security interest
in substantially all of Borrowers' assets.
WHEREAS, Borrowers desire that Lenders increase the amount of
credit facilities available to Borrowers to $85,000,000 by (i) providing
commitments for Revolving Loans in an aggregate principal amount of $30,000,000
and (ii) providing commitments for Term Loans in an aggregate principal amount
of $55,000,000 consisting of Term A Loans in the
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aggregate principal amount of $35,000,000 and Term B Loans in the aggregate
principal amount of $20,000,000;
WHEREAS, the proceeds of such additional credit facilities will
be used by Borrowers to (i) upon the Second Restatement Effective Date, finance
the acquisition (the "PREMIER ACQUISITION") by Borrowers of those certain cable
television systems listed on Schedule 1.1A hereto (the "PREMIER ACQUIRED
SYSTEMS") currently owned by Northland Premier Cable Limited Partnership, a
Washington limited partnership, ("PREMIER"), (ii) after the Second Restatement
Effective Date, in accordance with the terms hereof, finance the acquisition
(the "NCP6 ACQUISITION") by Company of those certain cable television systems
listed on Schedule 1.1B hereto (the "NCP6 ACQUIRED SYSTEMS") currently owned by
Northland Cable Properties Six Limited Partnership, a Washington limited
partnership ("NCP6"), and (iii) provide for the working capital requirements and
other corporate purposes of Borrowers and their respective Subsidiaries all as
more specifically set forth below;
WHEREAS, Parent will guarantee the Obligations under this
Agreement and the Loan Documents and will secure such guaranty by granting to
Administrative Agent, on behalf of Lenders, a pledge of all of the capital stock
of Company.
WHEREAS, Lenders have agreed to amend and restate the Existing
Credit Agreement in its entirety for the purposes of (i) providing such
additional credit facilities to Borrowers and (ii) making certain other changes
to the provisions of the Existing Credit Agreement on the terms and the
conditions set forth herein, which amendment and restatement shall become
effective upon the satisfaction of the conditions precedent set forth herein;
WHEREAS, it is the intent of the parties hereto that this
Agreement not constitute a novation of the obligations and liabilities of the
parties under the Existing Credit Agreement or be deemed to evidence or
constitute repayment of all or any portion of such obligations and liabilities
and that this Agreement amend and restate in its entirety the Existing Credit
Agreement and re-evidence the Obligations of Borrowers outstanding thereunder;
and
WHEREAS, it is the intent of Credit Parties to confirm that all
Obligations of Credit Parties under the other Loan Documents shall continue in
full force and effect and that, from and after the Second Restatement Effective
Date, all references to the "CREDIT AGREEMENT" contained therein shall be deemed
to refer to this Agreement:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Borrowers, Lenders and
Administrative Agent agree that on the Second Restatement Effective Date the
Existing Credit Agreement shall be amended and restated in its entirety as
follows:
SECTION 1.
DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following
meanings:
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"ACKNOWLEDGEMENT AND CONSENT" means the Acknowledgement and
Consent executed and delivered by each of Parent and NMG on or
prior to the Second Restatement Effective Date, substantially in
the form of Exhibit XVII annexed hereto pursuant to which each
such Person acknowledges and consents to this Agreement and
confirms the continuing effectiveness of each Loan Document to
which it is a party, as such Acknowledgement and Consent may
thereafter be amended, supplemented or otherwise modified from
time to time.
"ACQUISITIONS" means the Premier Acquisition together with the
NCP6 Acquisition.
"ADJUSTED LIBOR RATE" means, for any Interest Rate Determination
Date with respect to an Interest Period for a LIBOR Rate Loan,
the rate per annum obtained by dividing (i) the offered
quotation (rounded upward to the nearest 1/16 of one percent) to
first class banks in the London interbank market by Bank of
Montreal for U.S. dollar deposits of amounts in same day funds
comparable to the principal amount of the LIBOR Rate Loan of
Bank of Montreal for which the Adjusted LIBOR Rate is then being
determined with maturities comparable to such Interest Period as
of approximately 10:00 A.M. (New York time) on such Interest
Rate Determination Date by (ii) a percentage equal to 100% minus
the stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental,
special or other reserves) applicable on such Interest Rate
Determination Date to any member bank of the Federal Reserve
System in respect of "Eurocurrency liabilities" as defined in
Regulation D (or any successor category of liabilities under
Regulation D).
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also includes Bank of
Montreal in its capacity as agent under and in respect of the
Loan Documents, including, without limitation, the Collateral
Documents and any successor Administrative Agent appointed
pursuant to subsection 8.5.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under
common control with, that Person. For the purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of
the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"AGREEMENT" means this Second Amended and Restated Credit
Agreement dated as of May 25, 2001.
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"ANNUALIZED OPERATING CASH FLOW" means, as of any date of
determination, the Operating Cash Flow for the most recent
completed Fiscal Quarter multiplied by four.
"APPLICABLE MARGIN" for each type of Loan is defined in
subsection 2.2A.
"ASSET SALE" means the sale by (a) any Credit Party to any
Person other than any Borrower or any of its wholly-owned
Subsidiaries of (i) any of the stock or other equity interests
of any Subsidiary of any Credit Party, (ii) substantially all of
the assets of any division or line of business of such Credit
Party, or (iii) any other assets (whether tangible or
intangible) of such Credit Party outside of the ordinary course
of business and (b) Parent of any capital stock of Company.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of Exhibit XII annexed hereto.
"BANK OF MONTREAL" has the meaning assigned to that term in the
introduction to this Agreement.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any
successor statute.
"BASE RATE" means, at any time, the higher of (x) the Prime Rate
or (y) the rate which is 1/2 of 1% in excess of the Federal
Funds Effective Rate.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in
subsection 2.2A.
"BORROWERS" has the meaning assigned to that term in the
introduction to this Agreement.
"BUSINESS DAY" means (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the State of New
York or is a day on which banking institutions located in such
state are authorized or required by law or other governmental
action to close, and (ii) with respect to all notices,
determinations, fundings and payments in connection with the
Adjusted LIBOR Rate or any LIBOR Rate Loans, any day that is a
Business Day described in clause (i) above and that is also a
day for trading by and between banks in Dollar deposits in the
London interbank market.
"CABLE TELEVISION SYSTEM" means each cable television system
owned and operated by Borrowers and their respective
Subsidiaries, as of the date of this Agreement, and, after
consummation of the applicable Acquisition, the Premier Acquired
Systems and the NCP6 Acquired Systems.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of
all expenditures (whether paid in cash or other consideration or
accrued as a liability and including
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that portion of Capital Leases which is capitalized on the
consolidated balance sheet of the Credit Parties) by the Credit
Parties during that period that, in conformity with GAAP, are
included in "additions to property, plant or equipment" or
comparable items reflected in the consolidated statement of cash
flows of the Credit Parties excluding, however, all acquisition
costs, fees and expenses related to the Acquisitions and other
acquisitions by Borrowers of cable television systems permitted
pursuant to this Agreement.
"CAPITAL LEASE", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as
lessee that, in conformity with GAAP, is accounted for as a
capital lease on the balance sheet of that Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally
guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of
the United States, in each case maturing within one year after
such date; (ii) marketable direct obligations issued by any
state of the United States of America or any political
subdivision of any such state or any public instrumentality
thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, the highest
rating obtainable from either Standard & Poor's Ratings Group
("S&P") or Moody's Investors Service, Inc. ("MOODY'S"); (iii)
commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances
maturing within one year after such date and issued or accepted
by any Lender or by any commercial bank organized under the laws
of the United States of America or any state thereof or the
District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary
Federal banking regulator) and (b) has Tier 1 capital (as
defined in such regulations) of not less than $100,000,000; and
(v) shares of any money market mutual fund that (a) has at least
95% of its assets invested continuously in the types of
investments referred to in clauses (i) and (ii) above, (b) has
net assets of not less than $500,000,000, and (c) has the
highest rating obtainable from either S&P or Moody's.
"CASH PROCEEDS" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment
pursuant to, or monetization of, a note receivable or otherwise,
but only as and when so received) received from such Asset Sale.
"CERTIFICATE RE NON-BANK STATUS" means a certificate
substantially in the form of Exhibit XIII annexed hereto
delivered by a Lender to Administrative Agent pursuant to
subsection 2.7B(iii).
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"CHANGE OF CONTROL" means any of the following:
(i) John Whetzell (the "PERMITTED HOLDER") shall cease, for
any reason, to own in the aggregate, directly or indirectly, at
least 15% of the Securities of NTC (or other Securities
convertible into such Securities) entitled to vote (without
regard to any contingency) for members of the board of directors
of NTC ("NTC VOTING STOCK"); provided, however that in the event
of the death, disability or legal incapacity of the Permitted
Holder, the NTC Voting Stock held by the Permitted Holder may be
transferred to such Permitted Holder's legal heirs and if such
transfer would constitute a Change of Control hereunder, a
Change of Control shall be deemed not to occur unless within 180
days of such transfer Company shall have failed to provide the
Administrative Agent and the Lenders with a written proposal
regarding the ongoing management of Company, including a list of
the names of the individuals proposed to be engaged in the
senior management thereof, all in form and substance
satisfactory to Requisite Lenders;
(ii) any Person or any two or more Persons acting in
concert, other than the Permitted Holder, Richard I. Clark and
Gary S. Jones, shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Exchange Act), directly or indirectly, of
20% or more of the NTC Voting Stock;
(iii) NTC shall cease, for any reason, to own and control,
directly or indirectly, all of the issued and outstanding
capital stock of Parent;
(iv) Parent shall cease, for any reason, to directly own and
control all of the issued and outstanding capital stock of
Company;
(v) Parent shall cease to manage the Cable Television
Systems for any reason or the Management Agreements shall be
terminated for any reason; or
(vi) Company shall cease to own and control, directly or
indirectly, at least 90% of the aggregate membership interests
of NCV or shall cease, for any reason to be a managing member of
NCV holding at least 50% of the voting control of NCV.
"CLOSING DATE" means January 31, 1997, the date on which the
initial Loans were made under the Original Credit Agreement.
"COLLATERAL" means, collectively, all real, personal, and mixed
property securing the Obligations pursuant to the Collateral
Documents in accordance with the terms thereof.
"COLLATERAL DOCUMENTS" means the Security Agreement, the NMG
Guaranty, the Mortgages, the Subordination Agreement, the Parent
Pledge Agreement and all other instruments or documents
(including, without limitation, UCC-1 financing statements,
fixture filings or similar documents required in order to
perfect and
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preserve the Liens created by the Collateral Documents)
delivered by a Credit Party pursuant to this Agreement and the
other Loan Documents in order to grant to Administrative Agent
on behalf and for the ratable benefit of Lenders Liens in real,
personal or mixed property of such Credit Party.
"COMMITMENT TERMINATION DATE" means the earlier of (i) the
Stated Maturity Date or (ii) the date on which the Commitments
are terminated and all Obligations become due in accordance with
the provisions of Section 7.
"COMMITMENTS" means the commitments of Lenders to make Loans as
set forth in subsection 2.1A of this Agreement.
"COMMUNICATIONS ACT" means the Communications Act of 1934, as
amended, and all rules, regulations, orders, written policies
and decisions of the FCC thereunder or any successor statute or
statutes, as from time to time in effect.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit V annexed hereto delivered to Administrative
Agent and Lenders by Borrowers pursuant to subsection 5.1(iv).
"CONSENT LETTER" means a landlord consent letter substantially
in the form of Exhibit XIV annexed hereto, executed and
delivered to Administrative Agent by the owner of each property
leased to a Credit Party with respect to the Mortgage on such
property, and "CONSENT LETTERS" means all such letters
collectively.
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that
Person (i) with respect to any Indebtedness, lease, dividend or
other obligation of another if the primary purpose or intent
thereof by the Person incurring the Contingent Obligation is to
provide assurance to the obligee of such obligation of another
that such obligation of another 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 (in whole
or in part) against loss in respect thereof, (ii) with respect
to any letter of credit issued for the account of that Person or
as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Interest Rate Agreements. Contingent
Obligations shall include, without limitation, (a) the direct or
indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person
of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement,
and (c) any liability of such Person for the obligation of
another through any agreement (contingent or otherwise) (X) 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
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form of loans, advances, stock purchases, capital contributions
or otherwise) or (Y) to maintain the solvency or any balance
sheet item, level of income or financial condition of another
if, in the case of any agreement described under subclauses (X)
or (Y) of this sentence, the primary purpose or intent thereof
is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the
obligation so guaranteed or otherwise supported or, if less, the
amount to which such Contingent Obligation is specifically
limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any
material indenture, mortgage, deed of trust, contract,
undertaking, agreement or other instrument to which that Person
is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"COPYRIGHT ACT" means the Copyright Act of 1976, as amended,
including without limitation, all provisions of Title 17 of the
United States Code and the rules and regulations thereunder, in
each case as from time to time in effect.
"COPYRIGHT OFFICE" means the United States Copyright Office, the
Library of Congress, the Registrar of Copyrights and any
successor government agency performing functions similar to
those performed by the foregoing on the date hereof.
"CREDIT PARTY" means each Borrower and each of the Subsidiaries
of any Borrower and "CREDIT PARTIES" means such Persons
collectively.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit
union or like organization, other than an account evidenced by a
negotiable certificate of deposit.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank organized
under the laws of the United States or any state thereof having
net assets of not less than $500,000,000; (ii) a savings and
loan association or savings bank organized under the laws of the
United States or any state thereof having net assets of not less
than $500,000,000; (iii) a commercial bank organized under the
laws of any other country or a political subdivision thereof
having net assets of not less than $500,000,000; provided that
(x) such bank is acting through a branch or agency located in
the United States or (y) such bank is organized under the laws
of a country that is a member of the Organization for Economic
Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act)
which extends credit or buys loans as one of its businesses
including, but not limited to, insurance companies, mutual funds
and lease financing companies, in
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each case (under clauses (i) through (iv) above) that is
reasonably acceptable to Administrative Agent; and (B) any
Lender and any Affiliate of any Lender; provided that no
Affiliate of any Borrower shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is, or was at any time,
maintained or contributed to by any Borrower or any of its ERISA
Affiliates.
"ENVIRONMENTAL LAWS" means any and all federal, state and local
laws relating to the environment, the use, storage,
transporting, manufacturing, handling, discharge, disposal or
recycling of hazardous substances, materials or pollutants or
industrial hygiene, and including, without limitation, (i) the
Comprehensive Environmental Response, Compensation and Liability
Act, as amended, 42 USCA Section 9601 et seq.; (ii) the Resource
Conservation and Recovery Act of 1976, as amended, 42 USCA
Section 6901 et seq.; (iii) the Toxic Substance Control Act, as
amended, 15 USCA Section 2601 et seq; (iv) the Water Pollution
Control Act, as amended, 33 USCA Section 1251 et seq.; (v) the
Clean Air Act, as amended, 42 USCA Section 7401 et seq.; (vi)
the Hazardous Materials Transportation Authorization Act of
1994, as amended, 49 USCA Section 5101 et seq. and (viii) all
rules, regulations, judgments, decrees, injunctions and
restrictions thereunder and any analogous state law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation which is, or was at any time, a member of a
controlled group of corporations within the meaning of Section
414(b) of the Internal Revenue Code of which that Person is, or
was at any time, a member; (ii) any trade or business (whether
or not incorporated) which is, or was at any time, a member of a
group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which
that Person is, or was at any time, a member; and (iii) any
member of an affiliated service group within the meaning of
Section 414(m) or (o) of the Internal Revenue Code of which that
Person, any corporation described in clause (i) above or any
trade or business described in clause (ii) above is, or was at
any time, a member.
"ERISA EVENT" means (i) a "reportable event" within the meaning
of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by
regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance
with Section 412(d) of the Internal Revenue Code) or the failure
to make by its due date a required installment under Section
412(m) of the Internal Revenue Code with respect to any Pension
Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of
any Pension Plan pursuant to Section 4041(a)(2)
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of ERISA of a notice of intent to terminate such plan in a
distress termination described in Section 4041(c) of ERISA; (iv)
the withdrawal by any Borrower or any of its ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or
the termination of any such Pension Plan resulting in liability
pursuant to Sections 4063 or 4064 of ERISA; (v) the institution
by the PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which might constitute
grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the
imposition of liability on any Borrower or any of its ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by
reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal by any Borrower or any of its ERISA Affiliates in a
complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is
any potential liability therefor, or the receipt by any Borrower
or any of its ERISA Affiliates of notice from any Multiemployer
Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate
or has terminated under Section 4041A or 4042 of ERISA; (viii)
the occurrence of an act or omission which could give rise to
the imposition on any Borrower or any of its ERISA Affiliates of
fines, penalties, taxes or related charges under Chapter 43 of
the Internal Revenue Code or under Section 409 or 502(c), (i) or
(l) or 4071 of ERISA in respect of any Employee Benefit Plan;
(ix) the assertion of a material claim (other than routine
claims for benefits) against any Employee Benefit Plan other
than a Multiemployer Plan or the assets thereof, or against any
Borrower or any of its ERISA Affiliates in connection with any
such Employee Benefit Plan; (x) receipt from the Internal
Revenue Service of notice of the failure of any Pension Plan (or
any other Employee Benefit Plan intended to be qualified under
Section 401(a) of the Internal Revenue Code) to qualify under
Section 401(a) of the Internal Revenue Code, or the failure of
any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal
Revenue Code; or (xi) the imposition of a Lien pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
"EVENT OF DEFAULT" means each of the events set forth in Section
7.
"EXCESS CASH FLOW" means, for any period, (i) Operating Cash
Flow less (ii) the sum for that period of (a) Interest Expense,
(b) income tax expense to the extent actually paid in that
period by the Credit Parties (other than, to the extent
otherwise included therein, current income tax expense
attributable to gains on Asset Sales), (c) Capital Expenditures
to the extent actually made, (d) (without duplication) mandatory
repayments of the principal of Total Debt to the extent actually
made in that period pursuant to Subsection 2.4 (excluding
subsection 2.4B(iii)(c)) and (e) Management Fees accrued and
payable and not deferred for purposes of complying with
subsection 6.6 of this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
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"EXISTING CREDIT AGREEMENT" has the meaning assigned to that
term in the Recitals to this Agreement.
"EXISTING LENDERS" has the meaning assigned to that term in the
Recitals to this Agreement.
"EXISTING LOANS" means the Loans under, and as defined in, the
Existing Credit Agreement outstanding immediately prior to the
Second Restatement Effective Date.
"FCC" means the Federal Communications Commission and any
successor governmental agency performing functions similar to
those performed by the Federal Communications Commission on the
date hereof.
"FCC LICENSES" means all material licenses, permits or other
authorizations issued by the FCC relating to the Cable
Television Systems.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate 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, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by
Administrative Agent from three Federal funds brokers of
recognized standing selected by Administrative Agent.
"FINANCIAL CONDITION CERTIFICATE" means a certificate
substantially in the form of Exhibit XI annexed hereto delivered
pursuant to subsection 3.1.
"FIRST RESERVE AMOUNT" has the meaning assigned to that term in
subsection 2.1A(iii).
"FIRST RESTATEMENT EFFECTIVE DATE" means September 1, 1998.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Borrowers ending on
December 31 of each calendar year.
"FIXED CHARGES" means, for any period, the sum of the amounts
for such period of (i) Interest Expense, (ii) scheduled
principal payments in respect of Total Debt (including payments
on Capital Leases but excluding repayment of Indebtedness on the
Restatement Effective Date), (iii) Capital Expenditures, (iv)
income taxes paid in Cash, and (v) Management Fees accrued and
payable and not deferred for purposes of complying with
subsection 6.6 of this Agreement, all of the foregoing as
determined on a consolidated basis for the Credit Parties in
conformity with GAAP.
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"FLOOD HAZARD PROPERTY" means Real Property located in an area
designated by the Federal Emergency Management Agency as having
special flood or mud slide hazards.
"FRANCHISE" means any franchise or other authorization to
operate a Cable Television System granted by any federal, state
or local governmental authority or agency.
"FUNDING AND PAYMENT OFFICE" means the office of Administrative
Agent located at 115 South LaSalle Street, Chicago, Illinois
60603.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted
accounting principles set forth in opinions and pronouncements
of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a
significant segment of the accounting profession, in each case
as the same are applicable to the circumstances as of the date
of determination.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree
of or from any federal, state or local governmental authority,
agency or court.
"HAZARDOUS SUBSTANCE" means any hazardous or toxic substance,
material or waste, including, but not limited to, (i) those
substances, materials, and wastes listed in the United States
Department of Transportation Hazardous Materials Table (49 CFR
172.101) or by the Environmental Protection Agency as hazardous
substances (40 CFR Part 302) and amendments thereto and
replacements therefor and (ii) any substance, pollutant or
material defined as, or designated in, any Environmental Law as
a "hazardous substance," "toxic substance," "hazardous
material," "hazardous waste," "restricted hazardous waste,"
"pollutant," "toxic pollutant" or words of similar import.
"INDEBTEDNESS", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of
obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with
GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for
borrowed money, (iv) any obligation owed for all or any part of
the deferred purchase price of property or services (excluding
any such obligations incurred under ERISA), which purchase price
is (a) due more than six months from the date of incurrence of
the obligation in respect thereof or (b) evidenced by a note or
similar written instrument, and (v) all indebtedness secured by
any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall
have been
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assumed by that Person or is nonrecourse to the credit of that
Person. Obligations under Interest Rate Agreements, prior to the
termination thereof, constitute Contingent Obligations and not
Indebtedness.
"INDEMNITEE" has the meaning assigned to that term in subsection
9.3.
"INITIAL PERIOD" is defined in subsection 2.2A.
"INITIAL SYNDICATION PERIOD" means the period from (i) the
Second Restatement Effective Date to (ii) the earlier of (x) 60
days from the Second Restatement Effective Date or such later
date as Administrative Agent determines in its sole discretion
and (y) the Commitment Termination Date.
"INTELLECTUAL PROPERTY" means all patents, trademarks, trade
names, copyrights, technology, know-how and processes used in or
necessary for the conduct of the business of the Credit Parties
as currently conducted that are material to the condition
(financial or otherwise), business or operations of the Credit
Parties, taken as a whole.
"INTEREST EXPENSE" means, for any period, total interest expense
(including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of the Credit
Parties on a consolidated basis with respect to all outstanding
Indebtedness of the Credit Parties, including, without
limitation, all commissions, discounts, commitment fees and
other fees and charges owed with respect to letters of credit
and bankers' acceptance financing and net costs under Interest
Rate Agreements; provided that, Interest Expense shall not
include any fees paid by the Credit Parties pursuant to (a)
subsection 2.3B of this Agreement in connection with the
effectiveness of this Agreement on the Second Restatement
Effective Date, (b) subsection 2.3B of the Existing Credit
Agreement in connection with the effectiveness thereof on the
First Restatement Effective Date or (c) subsection 2.3B of the
Original Credit Agreement in connection with the effectiveness
thereof on the Closing Date.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate
Loan, each March 31, June 30, September 30 and December 31 of
each year, commencing on the first such date to occur after the
Second Restatement Effective Date and (ii) with respect to any
LIBOR Rate Loan, the last day of each Interest Period applicable
to such Loan; provided that in the case of each Interest Period
of six months, "Interest Payment Date" shall also include the
date that is three months after the commencement of such
Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement or arrangement designed to
protect the Credit Parties against fluctuations in interest
rates.
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"INTEREST RATE DETERMINATION DATE" means, with respect to any
Interest Period, the second Business Day prior to the first day
of such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by any Credit Party of, or of a beneficial interest
in, any Securities of any other Person (other than a Person
that, prior to such purchase or acquisition, was a wholly-owned
Subsidiary of a Borrower), (ii) any direct or indirect
redemption, retirement, purchase or other acquisition for value,
by any Subsidiary of a Borrower from any Person other than a
Credit Party, of any equity Securities of such Subsidiary, or
(iii) any direct or indirect loan, advance (other than advances
to employees for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course
of business) or capital contribution by any Credit Party to any
other Person other than a wholly-owned Subsidiary of a Borrower,
including all indebtedness and accounts receivable from that
other Person that are not current assets or did not arise from
sales to that other Person in the ordinary course of business.
The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other
legal form; provided that in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to
which such Person is a party.
"LENDER" and "LENDERS" means the persons identified as "LENDERS"
and listed on the signature pages of this Agreement, together
with their successors and permitted assigns pursuant to
subsection 9.1; provided that the term "LENDERS" when used in
the context of a particular Commitment, shall mean Lenders
having that Commitment.
"LEVERAGE RATIO" means the ratio calculated pursuant to
subsection 6.6C.
"LIBOR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted LIBOR Rate as provided
in subsection 2.2A.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease
in the nature thereof, and any agreement to give any security
interest) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Term A Loans, Term B
Loans or Revolving Loans or any combination thereof.
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"LOAN DOCUMENTS" means this Agreement, the Notes, the Collateral
Documents and any Interest Rate Agreements entered into by any
Credit Party with any Lender.
"MANAGEMENT AGREEMENTS" means (i) that certain Operating and
Management Agreement between Parent and Company dated as of June
1, 1995, as such agreement may heretofore have been or hereafter
may be amended, restated, supplemented or otherwise modified in
accordance with the terms thereof and hereof and (ii) that
certain Operating and Management Agreement between Parent and
NCV dated as of the First Restatement Effective Date, as such
agreement may heretofore have been or hereafter may be amended,
restated, supplemented or otherwise modified in accordance with
the terms thereof and hereof.
"MANAGEMENT FEES" means all fees, compensation and other amounts
payable to Parent or any of its Affiliates or any manager or
executive of Parent or any of its Affiliates or its Subsidiaries
pursuant to the Management Agreements or otherwise payable by
any Credit Party to such Persons on account of any management or
consulting arrangements or services (other than reimbursement
for reasonable out-of-pocket expenses and payment for
non-management services required in the ordinary course of
business of the Credit Parties and provided by Affiliates of
Parent in compliance with subsection 6.11).
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets, condition
(financial or otherwise) or prospects of the Credit Parties
(taken as a whole) or (ii) the material impairment of the
ability of any Credit Party to perform, or of Administrative
Agent or Lenders to enforce, the Obligations.
"MORTGAGE" means a security instrument (whether designated as a
mortgage, deed of trust or by any other similar title) executed
and delivered by any Credit Party (i) prior to the Second
Restatement Effective Date pursuant to the Existing Credit
Agreement or the Original Credit Agreement and (ii) thereafter,
substantially in the form of Exhibit XV annexed hereto, as each
such Mortgage may heretofore have been or hereafter may be
amended, restated, supplemented or otherwise modified from time
to time.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined in
Section 3(37) of ERISA, to which any Borrower or any of its
ERISA Affiliates is contributing, or ever has contributed, or to
which any Borrower or any of its ERISA Affiliates has, or ever
has had, an obligation to contribute.
"NCP6" has the meaning assigned to that term in the Recitals to
this Agreement.
"NCP6 ACQUIRED SYSTEMS" has the meaning assigned to that term in
the Recitals to this Agreement.
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"NCP6 ACQUISITION AGREEMENT" means that certain Asset Purchase
Agreement by and between Company and NCP6, for the purchase of
the NCP6 Acquired Systems to be delivered no later than 15 days
prior to the NCP6 Acquisition Date and as such agreement may be
amended, restated, supplemented or otherwise modified from time
to time.
"NCP6 ACQUISITION DATE" means the date the NCP6 Acquisition
becomes effective in accordance with the terms of the NCP6
Acquisition Agreement.
"NCP6 PARENT NOTE" means the $5,750,000 subordinated note to be
issued by Parent on the NCP6 Acquisition Date in accordance with
subsection 3.2F.
"NCV" has the meaning assigned that term in the Recitals to this
Agreement.
"NCV LLC AGREEMENT" means the Amended and Restated Limited
Liability Company Agreement of NCV dated as of January 1, 1999,
as such agreement may thereafter be amended, restated,
supplemented or otherwise modified from time to time in
accordance with the terms thereof and hereof.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
Cash payments (including any Cash received by way of deferred
payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received from such
Asset Sale, net of any bona fide direct costs incurred in
connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two years of
the date of such Asset Sale as a result of any gain recognized
in connection with such Asset Sale and (ii) payment of the
outstanding principal amount of, premium or penalty, if any, and
interest on any Indebtedness (other than the Loans) that is
secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of
such Asset Sale.
"NET DEBT/EQUITY ISSUANCE PROCEEDS" has the meaning assigned to
that term in subsection 2.4B(iii)(d).
"NET PENSION PROCEEDS" has the meaning assigned to that term in
subsection 2.4B(iii)(b).
"NET INCOME" means, for any period, the net income (or loss) of
the Credit Parties on a consolidated basis for such period taken
as a single accounting period determined in conformity with
GAAP; provided that there shall be excluded (i) the income (or
loss) of any Person (other than a Subsidiary of a Borrower) in
which any other Person (other than a Credit Party) has a joint
interest, except to the extent of the amount of dividends or
other distributions actually paid to a Credit Party by such
Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of
Company or is merged into or consolidated with a Credit Party or
that Person's assets are acquired by a Credit Party, (iii) the
income of any Subsidiary of Company to the extent that the
declaration or payment of dividends or similar distributions by
that Subsidiary of
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that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) any after-tax gains or
losses attributable to Asset Sales or returned surplus assets of
any Pension Plan, and (v) (to the extent not included in clauses
(i) through (iv) above) any net extraordinary gains or net
non-cash extraordinary losses.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments or
proceeds received by any Credit Party (i) under any business
interruption or casualty insurance policy in respect of a
covered loss thereunder or (ii) as a result of the taking of any
assets of any Credit Party by any Person pursuant to the power
of eminent domain, condemnation or otherwise, or pursuant to a
sale of any such assets to a purchaser with such power under
threat of such a taking, in each case net of any actual and
reasonable documented costs incurred by any Credit Party in
connection with the adjustment or settlement of any claims of
any Credit Party in respect thereof.
"NMG" has the meaning assigned to that term in Recitals to this
Agreement.
"NMG GUARANTY" means the NMG Guaranty executed and delivered by
NMG pursuant to the Existing Credit Agreement, a conformed copy
of which is attached as Exhibit VIII annexed hereto.
"NOTES" means one or more of the Term A Notes, Term B Notes or
Revolving Notes or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form
of Exhibit I annexed hereto delivered by Borrowers to
Administrative Agent pursuant to subsection 2.1B with respect to
a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially
in the form of Exhibit II annexed hereto delivered by Borrowers
to Administrative Agent pursuant to subsection 2.2D with respect
to a proposed conversion or continuation of the applicable basis
for determining the interest rate with respect to the Loans
specified therein.
"NTC" has the meaning assigned that term in the Recitals to this
Agreement.
"OBLIGATIONS" means all obligations of every nature of the
Credit Parties from time to time owed to Administrative Agent,
Lenders or any of them under the Loan Documents, whether for
principal, interest, fees, expenses, indemnification or
otherwise.
"OFFICER'S CERTIFICATE" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its
chairman of the board (if an officer) or its president or one of
its vice presidents and by its chief financial officer or its
treasurer; provided that every Officer's Certificate with
respect to the compliance with a condition precedent to the
making of any Loans hereunder shall include
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(i) a statement that the officer or officers making or giving
such Officer's Certificate have read such condition and any
definitions or other provisions contained in this Agreement
relating thereto, (ii) a statement that, in the opinion of the
signer, they have made or have caused to be made such
examination or investigation as is necessary to enable them to
express an informed opinion as to whether or not such condition
has been complied with, and (iii) a statement as to whether, in
the opinion of the signer, such condition has been complied
with.
"OPERATING CASH FLOW" means, for any period, the sum (without
duplication) of the amounts for such period of (i) Net Income,
(ii) Interest Expense, (iii) provisions for taxes based on
income, (iv) total depreciation expense, (v) total amortization
expense, (vi) Management Fees (whether paid, deferred or
accrued), and (vii) other non-cash items reducing Net Income
less (i) interest income and (ii) other non cash items
increasing Net Income, all of the foregoing determined on a
consolidated basis for the Credit Parties in conformity with
GAAP; provided that for purposes of calculating the Leverage
Ratio for any period, Operating Cash Flow shall be adjusted on a
consistent basis for any acquisitions or dispositions occurring
during such period as if such acquisition or disposition had
occurred on the first day of such period and; provided, further,
that on the Second Restatement Effective Date, Operating Cash
Flow shall be adjusted in a manner satisfactory to Requisite
Lenders to add-back certain non-recurring expenses as set forth
in Schedule 1.1C.
"OPERATING LEASE" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by
the lessee at any time) of any property (whether real, personal
or mixed) that is not a Capital Lease other than any such lease
under which that Person is the lessor.
"ORIGINAL CREDIT AGREEMENT" means that certain Credit Agreement
dated as of January 31, 1997 by and among Company, the financial
institutions party thereto from time to time and Bank of
Montreal, as agent.
"PARENT" has the meaning assigned to that term in the
introduction to this Agreement.
"PARENT NOTES" means, collectively, the Premier Parent Note and
the NCP6 Parent Note.
"PARENT PLEDGE AGREEMENT" means the Parent Pledge Agreement
executed and delivered by Parent on the Second Restatement
Effective Date, substantially in the form of Exhibit XVIII
annexed hereto, as such Parent Pledge Agreement may hereafter be
amended, supplemented or otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
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"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the
Internal Revenue Code or Section 302 of ERISA.
"PERMITTED ENCUMBRANCES" means the following types of Liens
(other than any such Lien imposed pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by
subsection 5.3;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen and other Liens imposed
by law incurred in the ordinary course of business for sums not
yet delinquent or being contested in good faith, if such reserve
or other appropriate provision, if any, as shall be required by
GAAP shall have been made therefor;
(iii) Liens 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, trade
contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money);
(iv) any attachment or judgment Lien not constituting an
Event of Default under subsection 7.8;
(v) leases or subleases granted to others not interfering in
any material respect with the ordinary conduct of the business
of a Credit Party;
(vi) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar
charges or encumbrances not interfering in any material respect
with the ordinary conduct of the business of a Credit Party;
(vii) any (a) interest or title of a lessor or sublessor
under any lease permitted by subsection 6.1, (b) restriction or
encumbrance that the interest or title of such lessor or
sublessor may be subject to, or (c) subordination of the
interest of the lessee or sublessee under such lease to any
restriction or encumbrance referred to in the preceding clause
(b);
(viii) Liens arising from filing UCC financing statements
relating solely to leases permitted by this Agreement; and
(ix) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties
in connection with the importation of goods.
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"PERMITTED LIENS" means Liens permitted pursuant to subsection
6.2A.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock
companies, Joint Ventures, associations, companies, trusts,
banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event
of Default.
"PREMIER" has the meaning assigned to that term in the Recitals
to this Agreement.
"PREMIER ACQUIRED SYSTEMS" has the meaning assigned to that term
in the Recitals to this Agreement.
"PREMIER ACQUISITION" has the meaning assigned to that term in
the Recitals to this Agreement.
"PREMIER ACQUISITION AGREEMENT" means that certain Asset
Purchase Agreement dated as of December 15, 2000, by and between
Parent and Premier and assigned by Parent to Borrowers, as in
effect on the Second Restatement Effective Date and as such
agreement may thereafter be amended, restated, supplemented or
otherwise modified from time to time.
"PREMIER PARENT NOTE" means the $1,850,000 subordinated note
issued by Parent on the Second Restatement Effective Date in
accordance with subsection 3.1D.
"PRIME RATE" means the rate that Bank of Montreal announces from
time to time as its prime lending rate, as in effect from time
to time. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged
to any customer. Bank of Montreal or any other Lender may make
commercial loans or other loans at rates of interest at, above
or below the Prime Rate.
"PRO FORMA DEBT SERVICE" means, for any prospective twelve-month
period, the sum (without duplication) of (i) scheduled principal
payments in respect of Total Debt (including, without
limitation, Contingent Obligations and payments in respect of
Capital Leases projected in good faith to become due and
payable, but excluding any mandatory payment of the Loans
projected to result from the application of Excess Cash Flow
pursuant to this Agreement) and (ii) Interest Expense
(calculated upon the basis of Total Debt outstanding on the date
of determination and any additional Total Debt projected to be
outstanding for such period using interest rates prevailing on
such date).
"PROPOSED ASSET SALE REINVESTMENT PROCEEDS" has the meaning
assigned to that term in subsection 2.4B(iii)(a).
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"PROPOSED INSURANCE/CONDEMNATION REINVESTMENT PROCEEDS" has the
meaning assigned to that term in subsection 2.4B(iii)(e).
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Term A Loan
Commitment or the Term A Loan of any Lender, the percentage
obtained by dividing (x) the Term A Loan Exposure of that Lender
by (y) the aggregate Term A Loan Exposure of all Lenders, (ii)
with respect to all payments, computations and other matters
relating to the Term B Loan Commitment or the Term B Loan of any
Lender, the percentage obtained by dividing (x) the Term B Loan
Exposure of that Lender by (y) the aggregate Term B Loan
Exposure of all Lenders, (iii) with respect to all payments,
computations and other matters relating to the Revolving Loan
Commitment or the Revolving Loans of any Lender, the percentage
obtained by dividing (x) the Revolving Loan Exposure of the
Lender by (y) the aggregate Revolving Loan Exposure of all
Lenders, and (iv) for all other purposes with respect to each
Lender, the percentage obtained by dividing (x) the sum of the
Term A Loan Exposure of that Lender plus the Term B Loan
Exposure of that Lender plus the Revolving Loan Exposure of that
Lender by (y) the sum of the aggregate Term A Loan Exposure of
all Lenders plus the aggregate Term B Loan Exposure of all
Lenders plus the aggregate Revolving Loan Exposure of all
Lenders, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 9.1.
The Initial Pro Rata Share of each Lender for purposes of each
of clauses (i), (ii), (iii) and (iv) of the preceding sentence
is set forth opposite the name of that Lender in Schedule 2.1
annexed hereto.
"REAL PROPERTY" means any and all real property owned or leased
by any Credit Party excluding easements and rights of way.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means, collectively, the Premier Acquisition
Agreement, the NCP6 Acquisition Agreement, [THE MANAGEMENT
AGREEMENTS], and any other documents relating to any of the
foregoing.
"REQUISITE LENDERS" means Lenders having or holding at least
66-2/3% of the sum of the aggregate Term A Loan Exposure of all
Lenders plus the aggregate Term B Loan Exposure of all Lenders
plus the aggregate Revolving Loan Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of
any class of stock of any Borrower now or hereafter outstanding,
except (a) a dividend payable solely in shares of that class of
stock to the holders of that class and (b) dividends payable by
NCV to Company, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock, membership
units or other equity interests of any Borrower now or
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hereafter outstanding, (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock of any
Borrower now or hereafter outstanding and (iv) any payment,
dividend or other distribution, direct or indirect, by any
Credit Party in respect, or an account, of Management Fees or
the Parent Notes.
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender to
make or maintain Revolving Loans to Borrowers pursuant to
subsection 2.1A(iii), and "REVOLVING LOAN COMMITMENTS" means
such commitments of all Lenders in the aggregate.
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender as
of any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Lender's Revolving Loan
Commitment and (ii) after the termination of the Revolving Loan
Commitments, the aggregate outstanding principal amount of the
Revolving Loans of that Lender.
"REVOLVING LOANS" means (i) with respect to the period prior to
the Second Restatement Effective Date the Existing Revolving
Loans and (ii) thereafter, the Loans made by Lenders to
Borrowers pursuant to subsection 2.1A(iii).
"REVOLVING NOTES" means (i) the promissory notes of Borrowers
issued pursuant to subsection 2.1D on the Second Restatement
Effective Date and (ii) any promissory notes issued by Borrowers
pursuant to the last sentence of subsection 9.1B(i) in
connection with assignments of the Revolving Loan Commitments
and Revolving Loans of any Lenders, in each case substantially
in the form of Exhibit IV annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"SECOND RESERVE AMOUNT" has the meaning assigned to that term in
subsection 2.1A(iii).
"SECOND RESTATEMENT EFFECTIVE DATE" means the date on which (i)
the conditions precedent to effectiveness set forth in
subsection 9.20 shall be satisfied and (ii) the conditions
precedent set forth in subsection 3.1 shall be satisfied or
waived in accordance with the terms hereof.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or
participation in any profit-sharing agreement or arrangement,
options, warrants, bonds, debentures, notes, or other evidences
of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
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"SECURITY AGREEMENT" means the Amended and Restated Security
Agreement executed and delivered by Borrowers on the First
Restatement Effective Date (and executed and delivered by NMG
and/or any other Credit Party thereafter in accordance with this
Agreement), a conformed copy of which is attached as Exhibit VII
annexed hereto.
"SOLVENT" means, with respect to any Person, that as of the date
of determination both (A) (i) the then fair saleable value of
the property of such Person is (y) greater than the total amount
of liabilities (including contingent liabilities) of such Person
and (z) not less than the amount that will be required to pay
the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing
alternatives and potential asset sales reasonably available to
such Person; (ii) such Person's capital is not unreasonably
small in relation to its business or any contemplated or
undertaken transaction; and (iii) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it
will incur, debts beyond its ability to pay such debts as they
become due; and (B) such Person is "solvent" within the meaning
given that term and similar terms under applicable laws relating
to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the
facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or
matured liability.
"STATED MATURITY DATE" means (A) March 31, 2009 with respect to
the Revolving Loans and the Term A Loans and (B) September 30,
2009, with respect to the Term B Loans.
"SUBORDINATION AGREEMENT" means the Subordination Agreement
executed and delivered by Borrowers and Parent on the First
Restatement Effective Date, a conformed copy of which is
attached as Exhibit XVI annexed hereto.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, association, joint venture or other business entity
of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of
the Person or Persons (whether directors, managers, trustees or
other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"TAX" or "TAXES" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and
whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; provided that
"TAX ON THE OVERALL NET INCOME" of a Person shall be construed
as a reference to a tax imposed by the jurisdiction in which
that Person's principal office (and/or, in the case of a Lender,
its lending office) is located or in which
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that Person is deemed to be doing business on all or part of the
net income, profits or gains of that Person (whether worldwide,
or only insofar as such income, profits or gains are considered
to arise in or to relate to a particular jurisdiction, or
otherwise).
"TERM A LOAN COMMITMENT" means the commitment of a Lender to
make or maintain Loans as Term A Loans to Borrowers pursuant to
subsection 2.1A(i) of this Agreement, and "TERM A LOAN
COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TERM A LOAN EXPOSURE" means, with respect to any Lender, as of
any date of determination, the outstanding principal amount of
the Term A Loan of that Lender.
"TERM A LOANS" means the Term A Loans made pursuant to
subsection 2.1A(i) of this Agreement.
"TERM A NOTES" means (i) the promissory notes of Borrowers
issued pursuant to subsection 2.1D on the Second Restatement
Effective Date and (ii) any promissory notes issued by Borrowers
pursuant to the last sentence of subsection 9.1(B)(i) of this
Agreement in connection with assignments of the Term A Loans of
any Lender, in each case substantially in the form of Exhibit
III-A annexed hereto, as they may be amended, restated,
supplemented or otherwise modified from time to time.
"TERM B LOAN COMMITMENT" means the commitment of a Lender to
make or maintain Loans as Term B Loans to Borrowers pursuant to
subsection 2.1(A)(ii) of this Agreement, and "TERM B LOAN
COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TERM B LOAN EXPOSURE" means, with respect to any Lender as of
any date of determination the outstanding principal amount of
the Term B Loan of that Lender.
"TERM B LOANS" means the Term B Loans made pursuant to
subsection 2.1A(ii) of this Agreement.
"TERM B NOTES" means (i) the promissory notes of Borrowers
issued pursuant to subsection 2.1D on the Second Restatement
Effective Date and (ii) any promissory note issued by Borrowers
pursuant to the last sentence of subsection 9.1B(i) of this
Agreement in connection with assignments of the Term B Loans of
any Lender, in each case substantially in the form of Exhibit
III-B annexed hereto, as they may be amended, restated,
supplemented or otherwise modified from time to time.
"TERM LOAN COMMITMENTS" means, collectively, the Term A Loan
Commitments and Term B Loan Commitments.
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"TERM LOANS" means, collectively, the Term A Loans and the Term
B Loans.
"TERM NOTES" means, collectively, the Term A Notes and the Term
B Notes.
"TOTAL DEBT" means, as at any date of determination, the
aggregate amount of all Indebtedness of the Credit Parties
determined on a consolidated basis in accordance with GAAP.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS UNDER
AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Borrowers to Lenders pursuant to clauses (ii), (iii)
and (ix) of subsection 5.1 shall be prepared in accordance with GAAP as in
effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in subsection 5.1(v). Calculations in
connection with the definitions, covenants and other provisions of this
Agreement shall utilize accounting principles and policies in conformity with
those used to prepare the financial statements referred to in subsection 4.3.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. All references contained herein to this Agreement, any other Loan
Document, any Related Document or any other agreement or other instrument shall
be a reference to such agreement or instrument as it may be amended, restated,
supplemented, replaced or otherwise in a different form from time to time in
accordance with the terms thereof and hereof.
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Borrowers
herein set forth, each Lender hereby severally agrees to make (or maintain, as
the case may be), the Loans described in this subsection 2.1A.
(i) Term A Loans. Each Lender that has a Term A Loan Commitment
severally agrees to lend to Borrowers, on a joint and several
basis, on the Second Restatement Effective Date an amount not
exceeding its Pro Rata Share of the aggregate amount of the Term
A Loan Commitments to be used for the purposes identified in
subsection 2.5A. The amount of each Lender's Term A Loan
Commitment is set forth opposite its name on Schedule 2.1
annexed hereto and
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the aggregate amount of the Term A Loan Commitments is
$35,000,000; provided that the Term A Loan Commitments of
Lenders shall be adjusted to give effect to any assignments of
the Term A Loan Commitments pursuant to subsection 9.1B.
Borrowers may make only one borrowing under the Term A Loan
Commitments. Amounts borrowed under this subsection 2.1A(i) and
subsequently repaid or prepaid may not be reborrowed.
(ii) Term B Loans. Each Lender that has a Term B Loan Commitment
severally agrees to lend to Borrowers, on a joint and several
basis, on the Second Restatement Effective Date an amount not
exceeding its Pro Rata Share of the aggregate amount of the Term
B Loan Commitments to be used for the purposes identified in
subsection 2.5A. The amount of each Lender's Term B Loan
Commitment is set forth opposite its name on Schedule 2.1
annexed hereto and the aggregate amount of the Term B Loan
Commitments if $20,000,000; provided that the Term B Loan
Commitments of Lenders shall be adjusted to give effect to any
assignments of the Term B Loan Commitments pursuant to
subsection 9.1B. Borrowers may make only one borrowing under the
Term B Loan commitments. Amounts borrowed under this subsection
2.1A(ii) and subsequently repaid or prepaid may not be
reborrowed.
(iii) Revolving Loans. Each Lender that has a Revolving Loan
Commitment severally agrees to lend to Borrowers, on a joint and
several basis, from time to time during the period from the
Second Restatement Effective Date to but excluding the
Commitment Termination Date an aggregate amount not exceeding
its Pro Rata Share of the aggregate amount of the Revolving Loan
Commitments to be used for the purposes identified in subsection
2.5A. The original amount of each Lender's Revolving Loan
Commitment is set forth opposite its name on Schedule 2.1
annexed hereto and the aggregate original amount of the
Revolving Loan Commitments is $30,000,000; provided that the
Revolving Loan Commitments of Lenders shall be adjusted to give
effect to any assignments of the Revolving Loan Commitments
pursuant to subsection 9.1B; and provided, further that the
amount of the Revolving Loan Commitments shall be reduced (i)
from time to time by the amount of any reductions thereto made
pursuant to subsections 2.4A(iii), 2.4B(ii) and 2.4B(iii) and
(ii) to $12,500,000 on September 30, 2001, if the Second Reserve
Amount (as defined below) has been assigned to an Eligible
Assignee or Eligible Assignees as provided herein and the NCP6
Acquisition is not consummated in accordance with this Agreement
on or prior to such date (such reduction to be applied to reduce
Lenders' Revolving Loan Commitments pro rata); provided, further
that a portion of all Lenders' aggregate Revolving Loan
Commitments equal to $4,000,000 in the aggregate (the "FIRST
RESERVE AMOUNT") shall be reserved at all times only for use in
connection with the NCP6 Acquisition and as provided in
subsection 2.5 provided that to the extent that the Second
Reserve Amount (as defined below) has not been assigned to an
Eligible Assignee or Eligible Assignees during the Initial
Syndication Period and the NCP6 Acquisition has not been
consummated on or prior to September 30, 2001, such First
Reserve Amount shall be cancelled at such time and the Revolving
Loan Commitments of all Lenders shall be reduced pro rata by the
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First Reserve Amount and any Revolving Loans outstanding from
any Lender in excess of its Revolving Loan Commitment after such
cancellation and reduction shall be repaid in full on that date
to such Lender; and provided further that a portion of the Bank
of Montreal's Revolving Loan Commitment equal to $15,000,000
(the "SECOND RESERVE AMOUNT") shall be reserved during the
Initial Syndication Period only for use in connection with the
NCP6 Acquisition and as provided in subsection 2.5 and such
amount shall become available for such use only if Bank of
Montreal assigns such portion of its Revolving Loan Commitment
equal to the Second Reserve Amount in its entirety to an
Eligible Assignee or Eligible Assignees pursuant to subsection
9.1; in the event that such assignment has not occurred on or
before the end of the Initial Syndication Period, such Second
Reserve Amount shall be cancelled at such time and Bank of
Montreal's Revolving Loan Commitment shall be reduced by the
Second Reserve Amount and any Revolving Loans outstanding from
Bank of Montreal in excess of its Revolving Loan Commitment
after such cancellation and reduction shall be repaid in full on
that date to Bank of Montreal. Each Lender's Revolving Loan
Commitment shall expire on the Commitment Termination Date
applicable to such Loans and all Revolving Loans and all other
amounts owed hereunder with respect to the Revolving Loans and
the Revolving Loan Commitments shall be paid in full no later
than that date. Amounts borrowed under this subsection 2.1A(iii)
may be repaid and reborrowed to but excluding the Revolving Loan
Commitment Termination Date.
B. BORROWING MECHANICS. Loans made on any Funding Date shall be
in an aggregate minimum amount of (a) $100,000 and integral multiples thereof in
the case of Base Rate Loans and (b) $500,000 and integral multiples of $100,000
in excess of that amount in the case of LIBOR Rate Loans. Whenever Borrowers
desire that Lenders make Loans they shall deliver to Administrative Agent a
Notice of Borrowing no later than 11:00 A.M. (New York time) at least three
Business Days in advance of the proposed Funding Date (in the case of a LIBOR
Rate Loan) or at least one Business Day in advance of the proposed Funding Date
(in the case of a Base Rate Loan). The Notice of Borrowing shall specify (i) the
proposed Funding Date (which shall be a Business Day), (ii) the amount and type
of Loans requested, (iii) whether such Loans shall be Base Rate Loans or LIBOR
Rate Loans (provided, however that all Loans made on the Second Restatement
Effective Date shall initially be Base Rate Loans), and (iv) in the case of any
Loans requested to be made as LIBOR Rate Loans, the initial Interest Period
requested therefor. Loans may be continued as or converted into Base Rate Loans
and LIBOR Rate Loans in the manner provided in subsection 2.2D. In lieu of
delivering the above-described Notice of Borrowing, Borrowers may give
Administrative Agent telephonic notice by the required time of any proposed
borrowing under this subsection 2.1B; provided that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any
liability to Borrowers in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Borrowers
or for otherwise acting in good faith under this subsection
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2.1B, and upon funding of Loans by Lenders in accordance with this Agreement
pursuant to any such telephonic notice Borrowers shall have effected Loans
hereunder.
Borrowers shall notify Administrative Agent prior to the funding
of any Loans in the event that any of the matters to which Borrowers are
required to certify in the applicable Notice of Borrowing is no longer true and
correct as of the applicable Funding Date, and the acceptance by Borrowers of
the proceeds of any Loans shall constitute a re-certification by Borrowers, as
of the applicable Funding Date, as to the matters to which Borrowers are
required to certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G,
a Notice of Borrowing for a LIBOR Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Borrowers shall be bound to make a borrowing in
accordance therewith.
C. DISBURSEMENT OF FUNDS. All Loans under this Agreement shall be
made by Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that no Lender shall be responsible for any default
by any other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender be increased or decreased as a
result of a default by any other Lender in that other Lender's obligation to
make a Loan requested hereunder. Promptly after receipt by Administrative Agent
of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice in
lieu thereof), Administrative Agent shall notify each Lender of the proposed
borrowing (such notification shall be made on the same day for any Notice of
Borrowing delivered to Administrative Agent by the time required pursuant to
subsection 2.1B). Each Lender shall make the amount of its Loan available to
Administrative Agent, in same day funds in Dollars, at the Funding and Payment
Office, not later than 1:00 P.M. (New York time) on the applicable Funding Date.
Upon satisfaction or waiver of the conditions precedent specified in subsections
3.1 (in the case of Loans made on the Second Restatement Effective Date), 3.2
(in the case of Revolving Loans made in connection with the consummation of the
NCP6 Acquisition) and 3.3 (in the case of all Loans), Administrative Agent shall
make the proceeds of such Loans available to Borrowers on the applicable Funding
Date by causing an amount of same day funds in Dollars equal to the proceeds of
all such Loans received by Administrative Agent from Lenders to be credited only
to the account of Borrowers at the Funding and Payment Office.
Unless Administrative Agent shall have been notified by any
Lender prior to the Funding Date for any Loans that such Lender does not intend
to make available to Administrative Agent the amount of such Lender's Loan
requested on such Funding Date, Administrative Agent may assume that such Lender
has made such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Borrowers a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three
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Business Days and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon Administrative Agent's demand therefor,
Administrative Agent shall promptly notify Borrowers and Borrowers shall
immediately pay such corresponding amount to Administrative Agent together with
interest thereon, for each day from such Funding Date until the date such amount
is paid to Administrative Agent, at the rate payable under this Agreement for
Base Rate Loans. Nothing in this subsection 2.1C shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment hereunder or to prejudice
any rights that Borrowers may have against any Lender as a result of any default
by such Lender hereunder.
D. NOTES. Borrowers shall execute and deliver to each Lender (or
to Administrative Agent for that Lender) on the Second Restatement Effective
Date (i) a Term A Note substantially in the form of Exhibit III-A annexed hereto
to evidence that Lender's Term A Loan, in the principal amount of that Lender's
Term Loan and with other appropriate insertions, (ii) a Term B Note
substantially in the form of Exhibit III-B annexed hereto to evidence that
Lender's Term B Loan in the principal amount of that Lender's Term B Loan and
with other appropriate insertions, and (iii) a Revolving Note substantially in
the form of Exhibit IV annexed hereto to evidence that Lender's Revolving Loans,
in the principal amount of that Lender's Revolving Loan Commitment and with
other appropriate insertions.
Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been accepted
by Administrative Agent as provided in subsection 9.1B(ii). Any request,
authority or consent of any person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, assignee or transferee of that
Note or of any Note or Notes issued in exchange therefor. As promptly after the
Second Restatement Effective Date as possible each Existing Lender shall
surrender its Existing Notes to Administrative Agent for cancellation and
Administrative Agent shall promptly return such cancelled Existing Notes to
Company.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6
and 2.7, each Loan shall bear interest on the unpaid principal amount thereof
from the date made through maturity (whether by acceleration or otherwise) at a
rate determined by reference to the Base Rate or the Adjusted LIBOR Rate. The
applicable basis for determining the rate of interest with respect to any Loan
shall be selected by Borrowers initially at the time a Notice of Borrowing is
given with respect to such Loan pursuant to subsection 2.1B, and the basis for
determining the interest rate with respect to any Loan may be changed from time
to time pursuant to subsection 2.2D. If on any day a Loan is outstanding with
respect to which notice has not been delivered to Administrative Agent in
accordance with the terms of this Agreement specifying the applicable basis for
determining the rate of interest, then for that day that Loan shall bear
interest determined by reference to the Base Rate.
Subject to the provisions of subsections 2.2E and 2.7, the Loans
shall bear interest through maturity as follows:
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(i) if a Base Rate Loan, then at the sum of the Base Rate plus
the Applicable Margin per annum; or
(ii) if a LIBOR Rate Loan, then at the sum of the Adjusted LIBOR
Rate plus the Applicable Margin per annum.
The "APPLICABLE MARGIN" applicable to Term A Loans and Revolving
Loans (i) during the period from the Second Restatement Effective Date to the
later of (x) the six-month anniversary thereof and (y) the date of delivery of
the Compliance Certificate for the Fiscal Quarter ended September 30, 2001 (the
"INITIAL PERIOD") shall be 2.000% for Base Rate Loans and 3.250% for LIBOR Rate
Loans and (ii) thereafter for each Base Rate Loan and LIBOR Rate Loan shall be
the percentage set forth below for that type of Loan based upon the Leverage
Ratio for the applicable period:
APPLICABLE MARGIN
----------------------------
BASE
RATE LIBOR
LEVERAGE RATIO LOAN RATE LOAN
----- ---------
(A) Greater than or equal to 5.00:1.00 2.000% 3.250%
(B) Greater than or equal to 4.50:1.00 1.625% 2.875%
but less than 5.00:1.00
(C) Greater than or equal to 4.00:1.00 1.375% 2.625%
but less than 4.50:1.00
(D) Greater than or equal to 3.50:1.00 1.000% 2.250%
but less than 4.00:1.00
(E) Less than 3.50:1.00 0.625% 1.875%
The "APPLICABLE MARGIN", applicable to Term B Loans, shall be the
percentage set forth below for that type of Loan based upon the Leverage Ratio
for the applicable period:
APPLICABLE MARGIN
---------------------------
BASE
RATE LIBOR
LEVERAGE RATIO LOAN RATE LOAN
---- ---------
(A) Greater than or equal to 4.50:1.00 2.125% 3.375%
(B) Less than 4.50:1.00 1.750% 3.000%
After the Initial Period, the Applicable Margin shall be
adjusted, to the extent required, on the date of delivery of each Compliance
Certificate delivered pursuant to subsection 5.1(iv), such adjustment to remain
in effect until the next date of delivery of a
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Compliance Certificate (and related financial information required at such time
pursuant to subsection 5.1) pursuant to subsection 5.1(iv); provided that
without limiting any Event of Default or Potential Event of Default that may
result therefrom, in the event Borrowers do not deliver any Compliance
Certificate required pursuant to subsection 5.1 by the date specified therefor
then the Applicable Margin shall not be decreased until and following the actual
date of delivery thereof, and if the Applicable Margin is required to be
increased as a result of the information in such Compliance Certificate, then
such increase shall be retroactive to the date such Compliance Certificate was
originally required to be delivered hereunder.
B. INTEREST PERIODS. In connection with each LIBOR Rate Loan,
Borrowers may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Borrowers' option, either a one, two, three or six month period; provided
that:
(i) the initial Interest Period for any LIBOR Rate Loan shall
commence on the Funding Date in respect of such Loan, in the
case of a Loan initially made as a LIBOR Rate Loan, or on the
date specified in the applicable Notice of
Conversion/Continuation, in the case of a Loan converted to a
LIBOR Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a LIBOR Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation, each successive Interest
Period shall commence on the day on which the next preceding
Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided that, if any Interest
Period would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (v) of this subsection
2.2B, end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Loans
shall extend beyond the Stated Maturity Date applicable to such
Loans;
(vi) no Interest Period with respect to any portion of the Loans
shall extend beyond the date on which a permanent reduction of
the Commitments is scheduled to occur unless the sum of (a) the
aggregate principal amount of Loans that are Base Rate Loans
plus (b) the aggregate principal amount of Loans that are LIBOR
Rate Loans with Interest Periods expiring on or before such date
plus (c) the excess of the Commitments then in effect over the
aggregate principal amount
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of Loans then outstanding equals or exceeds the permanent
reduction of the Commitments that is scheduled to occur on such
date;
(vii) there shall be no more than 5 Interest Periods outstanding
at any time; and
(viii) in the event Borrowers fail to specify an Interest Period
for any LIBOR Rate Loan in the applicable Notice of Borrowing or
Notice of Conversion/Continuation, Borrowers shall be deemed to
have selected an Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection
2.2E, interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of
subsection 2.6, Borrowers shall have the option (i) to convert at any time all
or any part of its outstanding Loans equal to $500,000 and integral multiples of
$100,000 in excess of that amount from Loans bearing interest at a rate
determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon the expiration of
any Interest Period applicable to a LIBOR Rate Loan, to continue all or any
portion of such Loan equal to $500,000 and integral multiples of $100,000 in
excess of that amount as a LIBOR Rate Loan; provided, however, that a LIBOR Rate
Loan may only be converted into a Base Rate Loan on the expiration date of an
Interest Period applicable thereto.
Borrowers shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 11:00 A.M. (New York time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a LIBOR Rate Loan). A Notice of Conversion/Continuation shall
specify (i) the proposed conversion/continuation date (which shall be a Business
Day), (ii) the amount and type of the Loan to be converted/continued, (iii) the
nature of the proposed conversion/continuation, (iv) in the case of a conversion
to, or a continuation of, a LIBOR Rate Loan, the requested Interest Period, and
(v) in the case of a conversion to, or a continuation of, a LIBOR Rate Loan,
that no Potential Event of Default or Event of Default has occurred and is
continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Borrowers may give Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date.
Neither Administrative Agent nor any Lender shall incur any
liability to Borrowers in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Borrowers or
for otherwise acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for determining the interest
rate with
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respect to any Loans in accordance with this Agreement pursuant to any such
telephonic notice Borrowers shall have effected a conversion or continuation, as
the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G,
a Notice of Conversion/Continuation for conversion to, or continuation of, a
LIBOR Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on
and after the related Interest Rate Determination Date, and Borrowers shall be
bound to effect a conversion or continuation in accordance therewith.
E. DEFAULT RATE. Upon the occurrence and during the continuation
of any Event of Default, the outstanding principal amount of all Loans and, to
the extent permitted by applicable law, any interest payments thereon not paid
when due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable upon
demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement for Base Rate
Loans); provided that, in the case of LIBOR Rate Loans, upon the expiration of
the Interest Period in effect at the time any such increase in interest rate is
effective such LIBOR Rate Loans shall thereupon become Base Rate Loans and shall
thereafter bear interest payable upon demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement for Base Rate
Loans. Payment or acceptance of the increased rates of interest provided for in
this subsection 2.2E is not a permitted alternative to timely payment and shall
not constitute a waiver of any Event of Default or otherwise prejudice or limit
any rights or remedies of Administrative Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be
computed (i) in the case of Base Rate Loans, on the basis of a 365-day or
366-day year, as the case may be, and (ii) in the case of LIBOR Rate Loans, on
the basis of a 360-day year, in each case for the actual number of days elapsed
in the period during which it accrues. In computing interest on any Loan, the
date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a LIBOR Rate Loan, the date of conversion of such LIBOR Rate Loan to such
Base Rate Loan, as the case may be, shall be included, and the date of payment
of such Loan or the expiration date of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted to a LIBOR Rate Loan,
the date of conversion of such Base Rate Loan to such LIBOR Rate Loan, as the
case may be, shall be excluded; provided that if a Loan is repaid on the same
day on which it is made, one day's interest shall be paid on that Loan.
2.3 FEES.
A. REVOLVING LOAN COMMITMENT FEES. Borrowers agree to pay to
Administrative Agent, for distribution to each Lender in proportion to that
Lender's Pro Rata Share, commitment fees for the period from and including the
Second Restatement Effective Date to and excluding the Commitment Termination
Date equal to the average of the daily excess of the Revolving Loan Commitments
over the aggregate principal amount of Revolving Loans outstanding multiplied by
(i) 1/2 of 1% per annum for any period during which the
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Leverage Ratio is greater than or equal to 4.00:1.00, and (ii) 3/8 of 1% at all
other times, such commitment fees to be calculated on the basis of a 360-day
year and the actual number of days elapsed and to be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Second Restatement
Effective Date, and ending on the Commitment Termination Date.
B. OTHER FEES. Borrowers agree to pay to Administrative Agent
such other fees in the amounts and at the times separately agreed upon among
Borrowers and Administrative Agent.
2.4 PREPAYMENTS AND REDUCTIONS IN COMMITMENTS; GENERAL PROVISIONS REGARDING
PAYMENTS.
A. SCHEDULED PAYMENTS OF TERM LOANS AND SCHEDULED REDUCTIONS OF
REVOLVING LOAN COMMITMENTS.
(i) Scheduled Payments of Term A Loans. Borrowers shall make
principal payments on the Term A Loans in installments on the
dates and in the amounts set forth below:
Date Scheduled Repayment
- ---- of Term A Loans
-------------------
March 31, 2004 $1,050,000
June 30, 2004 $1,050,000
September 30, 2004 $1,050,000
December 31, 2004 $1,050,000
March 31, 2005 $1,225,000
June 30, 2005 $1,225,000
September 30, 2005 $1,225,000
December 31, 2005 $1,225,000
March 31, 2006 $1,400,000
June 30, 2006 $1,400,000
September 30, 2006 $1,400,000
December 31, 2006 $1,400,000
March 31, 2007 $1,750,000
June 30, 2007 $1,750,000
September 30, 2007 $1,750,000
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Date Scheduled Repayment
- ---- of Term A Loans
-------------------
December 31, 2007 $1,750,000
March 31, 2008 $2,187,500
June 30, 2008 $2,187,500
September 30, 2008 $2,187,500
December 31, 2008 $2,187,500
March 31, 2009 $4,550,000
; provided that the scheduled installments of principal of the Term A
Loans set forth above shall be reduced in connection with any voluntary
or mandatory prepayments of the Term A Loans in accordance with
subsection 2.4B(iv); and provided, further that the Term A Loans and all
other amounts owed hereunder with respect to the Term A Loans shall be
paid in full no later than the Commitment Termination Date applicable to
such Loans, and the final installment payable by Borrowers in respect of
the Term A Loans on such date shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts
owing by Borrowers under this Agreement with respect to the Term A
Loans.
(ii) Scheduled Payments of Term B Loan Commitments. Borrowers
shall make principal payments on the Term B Loans in
installments on the dates and in the amounts set forth below:
Date Scheduled Repayment
- ---- of Term B Loans
-------------------
March 31, 2004 $50,000
June 30, 2004 $50,000
September 30, 2004 $50,000
December 31, 2004 $50,000
March 31, 2005 $50,000
June 30, 2005 $50,000
September 30, 2005 $50,000
December 31, 2005 $50,000
March 31, 2006 $50,000
June 30, 2006 $50,000
September 30, 2006 $50,000
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Date Scheduled Repayment
- ---- of Term B Loans
-------------------
December 31, 2006 $50,000
March 31, 2007 $50,000
June 30, 2007 $50,000
September 30, 2007 $50,000
December 31, 2007 $50,000
March 31, 2008 $50,000
June 30, 2008 $50,000
September 30, 2008 $50,000
December 31, 2008 $50,000
March 31, 2009 $50,000
June 30, 2009 $9,475,000
September 30, 2009 $9,475,000
; provided that the scheduled installments of principal of the Term B
Loans set forth above shall be reduced in connection with any voluntary
or mandatory prepayments of the Term B Loans in accordance with
subsection 2.4B(iv); and provided, further that the Term B Loans and all
other amounts owed hereunder with respect to the Term B Loans shall be
paid in full no later than the Commitment Termination Date applicable to
such Loans, and the final installment payable by Borrowers in respect of
the Term B Loans on such date shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts
owing by Borrowers under this Agreement with respect to the Term B
Loans.
(iii) Scheduled Reductions of Revolving Loan Commitments. The
Revolving Loan Commitments shall be permanently reduced on the
dates and in the amounts calculated pursuant to the percentages
of the aggregate Revolving Loan Commitments as in effect on
October 1, 2001, as set forth below:
Date Scheduled Reduction of Revolving
---- Loan Commitments
--------------------------------
March 31, 2004 3.00%
June 30, 2004 3.00%
September 30, 2004 3.00%
December 31, 2004 3.00%
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Date Scheduled Reduction of Revolving
---- Loan Commitments
--------------------------------
March 31, 2005 3.50%
June 30, 2005 3.50%
September 30, 2005 3.50%
December 31, 2005 3.50%
March 31, 2006 4.00%
June 30, 2006 4.00%
September 30, 2006 4.00%
December 31, 2006 4.00%
March 31, 2007 5.00%
June 30, 2007 5.00%
September 30, 2007 5.00%
December 31, 2007 5.00%
March 31, 2008 6.25%
June 30, 2008 6.25%
September 30, 2008 6.25%
December 31, 2008 6.25%
March 31, 2009 13.00%
; provided that the scheduled reductions of the Revolving Loan
Commitments set forth above shall be reduced in connection with any
voluntary or mandatory reductions of the Revolving Loan Commitments in
accordance with subsections 2.1A(iii) and 2.4B(iv).
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN COMMITMENTS.
(i) Voluntary Prepayments. Borrowers may, upon not less than one
Business Day's prior written or telephonic notice, in the case
of Base Rate Loans, and three Business Days' prior written or
telephonic notice, in the case of LIBOR Rate Loans, in each case
given to Administrative Agent by 11:00 A.M. (New York time) on
the date required and, if given by telephone, promptly confirmed
in writing to Administrative Agent (which original written or
telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from
time to time prepay any Loans on any Business Day in whole or in
part in an aggregate minimum amount of (a) $100,000 and integral
multiples thereof in the case of Base Rate Loans and (b)
$500,000 and
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integral multiples of $100,000 in excess of that amount in the
case of LIBOR Rate Loans; provided, however, that a LIBOR Rate
Loan may only be prepaid on a date that is not the expiration of
the Interest Period applicable thereto if Borrowers concurrently
make any payments required by subsection 2.6D. Notice of
prepayment having been given as aforesaid, the principal amount
of the Loans specified in such notice shall become due and
payable on the prepayment date specified therein. Any such
voluntary prepayment shall be applied as specified in subsection
2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments.
Borrowers may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to
Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from
time to time terminate in whole or permanently reduce in part,
without premium or penalty, the Revolving Loan Commitments in an
amount up to the amount by which the Revolving Loan Commitments
exceed the aggregate outstanding principal amount of Revolving
Loans at the time of such proposed termination or reduction;
provided that any such partial reduction of the Revolving Loan
Commitments shall be in an aggregate minimum amount of $500,000
and integral multiples of $100,000 in excess of that amount.
Borrowers' notice to Administrative Agent shall designate the
date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such
termination or reduction of the Revolving Loan Commitments shall
be effective on the date specified in Borrowers' notice and
shall reduce the Revolving Loan Commitment of each Lender
proportionately to its Pro Rata Share. Any such voluntary
reduction of the Revolving Loan Commitments shall be applied as
specified in subsection 2.4B(iv).
(iii) Mandatory Prepayments and Mandatory Reductions of
Commitments.
(a) Prepayments and Reductions From Net Asset Sale
Proceeds. Within five Business Days of any Borrower's receipt of
any Net Asset Sale Proceeds in excess of $50,000 in the aggregate
for any one Asset Sale or related series of Asset Sales,
Borrowers shall prepay the Revolving Loans (but the Revolving
Loan Commitments shall not be reduced) in an amount equal to the
entire amount of such Net Asset Sale Proceeds (including the
first $50,000 thereof) to the extent the Revolving Loans are then
outstanding and such amount shall only be available for
reborrowing pursuant to the Revolving Loan Commitments by
Borrowers to either reinvest such Net Asset Sale Proceeds in
assets substantially similar to those sold in such Asset Sale or
apply such proceeds to the Term Loans and Revolving Loans as set
forth below; provided that if, after the prepayment of the
Revolving Loans in accordance with the immediately preceding
clause with any Net Asset Sale Proceeds, (i) 180 days shall have
passed since such Asset Sale and the amount of such Net Asset
Sale Proceeds shall not have been reborrowed and/or reinvested as
set forth above or (ii) an Event of Default shall have occurred
and shall have been continuing for a period of 15 days
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any time prior to the end of such 180 day reinvestment period
with respect to such Asset Sale (such 15th day or 180th day, as
the case may be, being the "DRAWDOWN DATE"), then (y) Borrowers
shall be deemed to have given a timely Notice of Borrowing to
Administrative Agent requesting Revolving Lenders to make
Revolving Loans that are Base Rate Loans on the Drawdown Date in
an amount in Dollars equal to the amount of all such Net Asset
Sale Proceeds that have been applied to prepay Revolving Loans
and not yet reinvested (the "DRAWDOWN AMOUNT") and (z) without
regard to satisfaction or waiver of the conditions specified in
subsection 3.3B, Revolving Lenders shall, on the Drawdown Date,
make Revolving Loans that are Base Rate Loans in the amount of
the Drawdown Amount, the proceeds of which shall be immediately
applied by Administrative Agent first as a mandatory prepayment
of the Term Loans and second as a mandatory repayment of the
Revolving Loans, and a permanent reduction of the Revolving Loan
Commitments, all as provided in subsection 2.4B(iv).
(b) Prepayments and Reductions Due to Reversion of Surplus
Assets of Pension Plans. On the date of return to any Credit
Party of any surplus assets of any pension plan of the Credit
Parties in excess of $50,000 with respect to any one return or
related series of returns, Borrowers shall prepay the Loans, and
the Commitments shall be permanently reduced, in an amount (such
amount being the "NET PENSION PROCEEDS") equal to 100% of such
returned surplus assets (including the first $50,000 thereof),
net of transaction costs and expenses incurred in obtaining such
return, including incremental taxes payable as a result thereof.
Any such mandatory prepayments or reductions of the Commitments
shall be applied as specified in subsection 2.4B(iv).
(c) Prepayments and Reductions from Excess Cash Flow. In
the event that (i) there shall be Excess Cash Flow for the Fiscal
Year ending on December 31, 2003 and for any Fiscal Year
thereafter and (ii) the Leverage Ratio for such Fiscal Year is
greater than or equal to 4.00:1.00, then Borrowers shall, on or
before April 30 of each year following each such Fiscal Year,
prepay the Loans and reduce the Commitments in an amount equal to
50% of such Excess Cash Flow for such Fiscal Year, in the manner
specified in subsection 2.4B(iv)(b).
(d) Prepayments and Reductions Due to Issuance of Debt or
Equity Securities. On the date of receipt by any Credit Party of
the cash proceeds (net of underwriting discounts and commissions
and other reasonable costs associated therewith) from the
issuance of any debt or equity Securities of Borrowers, Borrowers
shall prepay the Loans in an amount (such amount being the "NET
DEBT/EQUITY ISSUANCE PROCEEDS") equal to such net cash proceeds
and the Commitments shall be permanently reduced, in an amount
equal to such excess. Any such mandatory prepayments or
reductions of the Commitments shall be applied as specified in
subsection 2.4B(iv).
(e) Prepayments and Reductions from Net Insurance/
Condemnation Proceeds. No later than the first Business
Day following the date of receipt by
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Administrative Agent or any Credit Party of any Net
Insurance/Condemnation Proceeds in excess of $50,000 in the
aggregate for any one claim or related series of claims,
Borrowers shall prepay the Loans and/or the Revolving Loan
Commitments shall be permanently reduced in an aggregate amount
equal to the entire amount of such Net Insurance/Condemnation
Proceeds (including the first $50,000 thereof) minus any such
Net Insurance/Condemnation Proceeds (the "PROPOSED
INSURANCE/CONDEMNATION REINVESTMENT PROCEEDS") that such Credit
Party intends to use within 180 days of such date of receipt to
pay or reimburse the costs of repairing, restoring or replacing
the assets in respect of which such Net Insurance/Condemnation
Proceeds were received; provided that Borrowers shall have
delivered to Administrative Agent, on or before such first
Business Day, an Officer's Certificate stating that no Event of
Default or Potential Event of Default has occurred and is
continuing and setting forth the proposed use of the Proposed
Insurance/Condemnation Reinvestment Proceeds and such other
information with respect to such proposed use as Administrative
Agent may reasonably request. In addition, no later than 180
days after receipt of any Net Insurance/Condemnation Proceeds,
Borrowers shall prepay the Loans and/or the Revolving Loan
Commitments shall be permanently reduced in an amount equal to
the amount of any related Proposed Insurance/Condemnation
Reinvestment Proceeds that have not been applied to the costs of
repairing, restoring or replacing the applicable assets of such
Credit Party as provided above. Any such mandatory prepayments
shall be applied as specified in subsection 2.4B(iv).
(f) Prepayments Due to Reductions or Restrictions of
Revolving Loan Commitments. Borrowers shall from time to time
prepay the Revolving Loans to the extent necessary so that the
aggregate outstanding principal amount of the Revolving Loans
shall not at any time exceed the Revolving Loan Commitments then
in effect. Any such mandatory prepayments shall be applied as
specified in subsection 2.4B(iv).
(g) Mandatory Reduction from Lack of Consummation of the
NCP6 Acquisition. If a portion of Bank of Montreal's Revolving
Loan Commitment in an amount equal to the Second Reserve Amount
has been assigned to an Eligible Assignee or Eligible Assignees
during the Initial Syndication Period and the NCP6 Acquisition is
not consummated in accordance with this Agreement on or prior to
September 30, 2001, the Lenders' Revolving Loan Commitments shall
be permanently reduced to $12,500,000. Any such mandatory
reduction shall be applied as specified in subsection 2.4B(iv).
(h) Calculations of Net Proceeds Amounts; Additional
Prepayments and Reductions Based on Subsequent Calculations.
Concurrently with any prepayment of the Loans and/or reduction of
the Revolving Loan Commitments pursuant to subsections
2.4B(iii)(a)-(e) Borrowers shall deliver to Administrative Agent
an Officer's Certificate demonstrating the calculation of the
amount (the "NET PROCEEDS AMOUNT") of the applicable Net Asset
Sale Proceeds, the applicable Net Insurance/Condemnation
Proceeds, the applicable Net Pension Proceeds, the applicable Net
Debt/Equity Issuance Proceeds or the applicable
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Excess Cash Flow, as the case may be, that gave rise to such
prepayment and/or reduction. In the event that Borrowers shall
subsequently determine that the actual Net Proceeds Amount was
greater than the amount set forth in such Officer's Certificate,
Borrowers shall promptly make an additional prepayment of the
Loans (and/or, if applicable, the Revolving Loan Commitments
shall be permanently reduced) in an amount equal to the amount
of such excess, pursuant to subsection 2.4B(iii)(a), (b), (c),
(d) or (e), as applicable, and Borrowers shall concurrently
therewith deliver to Administrative Agent an Officer's
Certificate demonstrating the derivation of the additional Net
Proceeds Amount resulting in such excess.
(iv) Application of Prepayments and Unscheduled Reductions of
Revolving Loan Commitments.
(a) Application of Voluntary Prepayments by Type of Loans
and Order of Maturity. Any voluntary prepayments pursuant to
subsection 2.4B(i) shall be applied as specified by Borrowers in
the applicable notice of prepayment; provided that in the event
Borrowers fail to specify the Loans to which any such prepayment
shall be applied, such prepayment shall be applied first to repay
outstanding Revolving Loans to the full extent thereof and second
to repay outstanding Term Loans (such payments to be applied pro
rata to the outstanding Term A Loans and Term B Loans based on
the outstanding aggregate principal amount of each such type of
Loan) to the full extent thereof. Any voluntary prepayments of
the Term A Loans and Term B Loans pursuant to subsection 2.4B(i)
shall be applied to reduce the scheduled installments of
principal of the Term A Loans and Term B Loans, as the case may
be, set forth in subsection 2.4A(i) and 2.4A(ii) respectively, in
inverse order of maturity.
(b) Application of Mandatory Prepayments by Type of Loans.
Any amount (the "APPLIED AMOUNT") required to be applied as a
mandatory prepayment of the Term Loans and/or a repayment of the
Revolving Loans and reduction of the Revolving Loan Commitments
pursuant to subsections 2.4B(iii)(a)-(f) shall be applied first
to prepay the Term Loans (such payment to be applied pro rata to
the outstanding Term A Loans and Term B Loans based on the
outstanding aggregate principal amount of each such type of Loan)
to the full extent thereof, second, to the extent of any
remaining portion of the Applied Amount, to prepay the Revolving
Loans to the full extent thereof and to permanently reduce the
Revolving Loan Commitments by the amount of such prepayment, and
third, to the extent of any remaining portion of the Applied
Amount, to further permanently reduce the Revolving Loan
Commitments to the full extent thereof.
(c) Application of Mandatory Prepayments of Term Loans.
Any mandatory prepayments of the Term A Loans and Term B Loans
(i) pursuant to subsection 2.4B(iii)(b), (c), (d) or (e) shall be
applied to reduce the scheduled installments of principal of the
Term A Loans and Term B Loans, as the case may be, set forth in
subsection 2.4A(i) and 2.4A(ii), respectively, in inverse order
of
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maturity and (ii) pursuant to subsection 2.4B(iii)(a) shall be
applied on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) to each scheduled
installment of principal of the Term A Loans and Term B Loans,
as the case may be, set forth in subsection 2.4A(i) and
2.4A(ii), respectively, that is unpaid at the time of such
prepayment.
(d) Application of Prepayments to Base Rate Loans and
LIBOR Rate Loans. Considering Term Loans and Revolving Loans
being prepaid separately, any prepayment thereof shall be applied
first to Base Rate Loans to the full extent thereof before
application to LIBOR Rate Loans, in each case in a manner which
minimizes the amount of any payments required to be made by
Borrowers pursuant to subsection 2.6D.
(e) Application of Unscheduled Reductions of Revolving
Loan Commitments. Any voluntary or mandatory reduction of the
Revolving Loan Commitments (i) pursuant to subsection 2.4B(ii) or
subsection 2.4B(iii)(b), (c), (d), (e), (f) or (g) shall be
applied to reduce the scheduled reductions of the Revolving Loan
Commitments set forth in subsection 2.4A(iii) in inverse order of
maturity and (ii) pursuant to subsection 2.4B(iii)(a) shall be
applied on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) to each scheduled
reduction of the Revolving Loan Commitments set forth in
subsection 2.4A(iii) that is remaining at the time of such
mandatory reduction.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. All payments by Borrowers of
principal, interest, fees and other Obligations hereunder and
under the Notes shall be made in Dollars in same day funds,
without defense, setoff or counterclaim, free of any restriction
or condition, and delivered to Administrative Agent not later
than 1:00 P.M. (New York time) on the date due at the Funding
and Payment Office for the account of Lenders; funds received by
Administrative Agent after that time on such due date shall be
deemed to have been paid by Borrowers on the next succeeding
Business Day. Borrowers hereby authorize Administrative Agent to
charge its accounts with Administrative Agent in order to cause
timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject to
sufficient funds being available in its accounts for that
purpose).
(ii) Application of Payments to Principal and Interest. All
payments in respect of the principal amount of any Loan shall
include payment of accrued interest on the principal amount
being repaid or prepaid, and all such payments shall be applied
to the payment of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and
interest payments shall be apportioned among all outstanding
Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares.
Administrative Agent shall promptly distribute to each Lender,
at its primary
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address set forth below its name on the appropriate signature
page hereof or at such other address as such Lender may request,
its Pro Rata Share of all such payments received by
Administrative Agent and the commitment fees of such Lender when
received by Administrative Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection
2.4C(iii), if, pursuant to the provisions of subsection 2.6C,
any Notice of Conversion/Continuation is withdrawn as to any
Affected Lender or if any Affected Lender makes Base Rate Loans
in lieu of its Pro Rata Share of any LIBOR Rate Loans,
Administrative Agent shall give effect thereto in apportioning
payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the
commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before
disposing of the Note held by it, or any part thereof (other
than by granting participations therein), that Lender will make
a notation thereon of all Loans evidenced by that Note and all
principal payments previously made thereon and of the date to
which interest thereon has been paid; provided that the failure
to make (or any error in the making of) a notation of any Loan
made under such Note shall not limit or otherwise affect the
obligations of Borrowers hereunder or under such Note with
respect to any Loan or any payments of principal or interest on
such Note.
2.5 USE OF PROCEEDS.
A. LOANS. The proceeds of the Loans shall be applied by Borrowers
(i) to continue the Existing Loans on the Second Restatement Effective Date,
(ii) to consummate the Premier Acquisition on the Second Restatement Effective
Date, (iii) to pay transaction costs, fees and expenses related to the
foregoing, (iv) to consummate acquisitions permitted pursuant to subsection 6.7,
(v) to make Restricted Junior Payments permitted pursuant to subsection 6.5 and
(vi) for general corporate purposes, including working capital and Capital
Expenditures; provided that if the First Reserve Amount and the Second Reserve
Amount are available pursuant to subsection 2.1A(iii), then the Revolving Loans
resulting from such availability may only be used on or after the date of
consummation of the NCP6 Acquisition to consummate the NCP6 Acquisition in
accordance with subsections 6.7 and 3.2 and for the other purposes permitted by
this subsection 2.5.
B. MARGIN REGULATIONS. No portion of the proceeds of any
borrowing under this Agreement shall be used by any Credit Party in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation U, Regulation T or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
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2.6 SPECIAL PROVISIONS GOVERNING LIBOR RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to LIBOR Rate Loans
as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as
practicable after 11:00 A.M. (New York time) on each Interest Rate Determination
Date, Administrative Agent shall determine (which determination shall, absent
manifest error, be final, conclusive and binding upon all parties) the interest
rate that shall apply to the LIBOR Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Borrowers
and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event
that Administrative Agent shall have determined (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto), on any Interest Rate Determination Date with respect to any LIBOR Rate
Loans, that by reason of circumstances affecting the London interbank market
adequate and fair means do not exist for ascertaining the interest rate
applicable to such Loans on the basis provided for in the definition of Adjusted
LIBOR Rate, Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to the chief financial
officer of the Borrowers (or other officer of the Borrowers as Administrative
Agent may deem appropriate) and each Lender of such determination, whereupon (i)
no Loans may be made as, or converted to, LIBOR Rate Loans until such time as
Administrative Agent notifies the chief financial officer of the Borrowers and
Lenders that the circumstances giving rise to such notice no longer exist and
(ii) any Notice of Borrowing or Notice of Conversion/Continuation given by
Borrowers with respect to the Loans in respect of which such determination was
made shall be deemed to be rescinded by Borrowers.
C. ILLEGALITY OR IMPRACTICABILITY OF LIBOR RATE LOANS. In the
event that on any date any Lender shall have determined in good faith (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto but shall be made only after consultation with Borrowers
and Administrative Agent) that the making, maintaining or continuation of its
LIBOR Rate Loans (i) has become unlawful as a result of compliance by such
Lender in good faith with any law, treaty, governmental rule, regulation,
guideline or order (or would conflict with any such treaty, governmental rule,
regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful) or (ii) has become
impracticable, or would cause such Lender material hardship, as a result of
contingencies occurring after the date of this Agreement and not reasonably
foreseeable as of the date of this Agreement which materially and adversely
affect the London interbank market or the position of such Lender in that
market, then, and in any such event, such Lender shall be an "AFFECTED LENDER"
and it shall on that day give notice (by telefacsimile or by telephone confirmed
in writing) to Borrowers and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other Lender).
Thereafter (a) the obligation of the Affected Lender to make Loans as, or to
convert Loans to, LIBOR Rate Loans shall be suspended until such notice shall be
withdrawn by the Affected Lender, (b) to the extent such determination by the
Affected Lender relates to a LIBOR Rate Loan then being requested by Borrowers
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, the
Affected Lender shall make such Loan as (or convert such Loan to, as the case
may be) a Base
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Rate Loan, (c) the Affected Lender's obligation to maintain its outstanding
LIBOR Rate Loans (the "AFFECTED LOANS") shall be terminated at the earlier to
occur of the expiration of the Interest Period then in effect with respect to
the Affected Loans or when required by law, and (d) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a LIBOR Rate Loan then being requested by
Borrowers pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, Borrowers shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telefacsimile or
by telephone confirmed in writing) to Administrative Agent of such rescission on
the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly
transmit to each other Lender). Except as provided in the immediately preceding
sentence, nothing in this subsection 2.6C shall affect the obligation of any
Lender other than an Affected Lender to make or maintain Loans as, or to convert
Loans to, LIBOR Rate Loans in accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. Borrowers shall compensate each Lender, upon written request by that
Lender (which request shall set forth the basis for requesting such amounts in
reasonable detail), for all reasonable losses, expenses and liabilities
(including, without limitation, any interest paid by that Lender to lenders of
funds borrowed by it to make or carry its LIBOR Rate Loans and any loss, expense
or liability sustained by that Lender in connection with the liquidation or
re-employment of such funds) which that Lender may sustain: (i) if for any
reason (other than a default by that Lender) a borrowing of any LIBOR Rate Loan
does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request for borrowing, or a conversion to or continuation of any
LIBOR Rate Loan does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request for conversion or continuation,
(ii) if any prepayment or other principal payment or any conversion of any of
its LIBOR Rate Loans occurs on a date prior to the last day of an Interest
Period applicable to that Loan, (iii) if any prepayment of any of its LIBOR Rate
Loans is not made on any date specified in a notice of prepayment given by
Borrowers, or (iv) as a consequence of any other default by Borrowers in the
repayment of its LIBOR Rate Loans when required by the terms of this Agreement.
E. BOOKING OF LIBOR RATE LOANS. Any Lender may make, carry or
transfer LIBOR Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF LIBOR RATE LOANS.
Calculation of all amounts payable to a Lender under this subsection 2.6 and
under subsection 2.7A shall be made as though that Lender had actually funded
each of its relevant LIBOR Rate Loans through the purchase of a LIBOR deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted LIBOR Rate in an amount equal to the amount of such LIBOR Rate Loan
and having a maturity comparable to the relevant Interest Period and through the
transfer of such LIBOR deposit from an offshore office of that Lender to a
domestic office of that Lender in the United States of America; provided,
however, that each Lender may fund each of its LIBOR Rate Loans in any manner it
sees fit and the foregoing assumptions shall be utilized only for the purposes
of calculating amounts payable under this subsection 2.6 and under subsection
2.7A.
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G. LIBOR RATE LOANS AFTER DEFAULT. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of Default,
(i) Borrowers may not elect to have a Loan be made or maintained as, or
converted to, a LIBOR Rate Loan after the expiration of any Interest Period then
in effect for that Loan and (ii) subject to the provisions of subsection 2.6D,
any Notice of Borrowing or Notice of Conversion/Continuation given by Borrowers
with respect to a requested borrowing or conversion/continuation that has not
yet occurred shall be deemed to be rescinded by Borrowers.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of subsection 2.7B, in the event that any Lender shall determine
(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) that any law, treaty or governmental rule,
regulation or order, or any change therein or in the interpretation,
administration or application thereof (including the introduction of any new
law, treaty or governmental rule, regulation or order), or any determination of
a court or governmental authority, in each case that becomes effective after the
date hereof, or compliance by such Lender with any guideline, request or
directive issued or made after the date hereof by any central bank or other
governmental or quasi-governmental authority (whether or not having the force of
law):
(i) subjects such Lender (or its applicable lending office) to
any additional Tax (other than any Tax on the overall net income
of such Lender) with respect to this Agreement or any of its
obligations hereunder or any payments to such Lender (or its
applicable lending office) of principal, interest, fees or any
other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special
or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or
deposits or other liabilities in or for the account of, or
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than
any such reserve or other requirements with respect to LIBOR Rate
Loans that are reflected in the definition of Adjusted LIBOR
Rate); or
(iii) imposes any other condition (other than with respect to a
Tax matter) on or affecting such Lender (or its applicable
lending office) or its obligations hereunder or the London
interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, such Lender shall promptly notify
Borrowers of such increased costs, Borrowers shall promptly pay to such Lender,
upon receipt of the statement referred to in the next sentence, such additional
amount or amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as may be necessary to
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compensate such Lender for any such increased cost or reduction in amounts
received or receivable hereunder. Such Lender shall deliver to Borrowers (with a
copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender
under this subsection 2.7A, which statement shall be conclusive and binding upon
all parties hereto absent manifest error.
B. WITHHOLDING OF TAXES.
(i) Payments to Be Free and Clear. All sums payable by Borrowers
under this Agreement and the other Loan Documents shall (except
to the extent required by law) be paid free and clear of, and
without any deduction or withholding on account of, any Tax
(other than a Tax on the overall net income of any Lender)
imposed, levied, collected, withheld or assessed by or within the
United States of America or any political subdivision in or of
the United States of America or any other jurisdiction from or to
which a payment is made by or on behalf of Borrowers or by any
federation or organization of which the United States of America
or any such jurisdiction is a member at the time of payment.
(ii) Grossing-up of Payments. If Borrowers or any other Person is
required by law to make any deduction or withholding on account
of any such Tax from any sum paid or payable by Borrowers to
Administrative Agent or any Lender under any of the Loan
Documents:
(a) Borrowers shall notify Administrative Agent of any
such requirement or any change in any such requirement as soon as
Borrowers becomes aware of it;
(b) Borrowers shall pay any such Tax before the date on
which penalties attach thereto, such payment to be made (if the
liability to pay is imposed on Borrowers) for its own account or
(if that liability is imposed on Administrative Agent or such
Lender, as the case may be) on behalf of and in the name of
Administrative Agent or such Lender;
(c) the sum payable by Borrowers in respect of which the
relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, Administrative
Agent or such Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no such
deduction, withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within
30 days after the due date of payment of any Tax which it is
required by clause (b) above to pay, Borrowers shall deliver to
Administrative Agent evidence satisfactory to the other affected
parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority;
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provided that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the date hereof (in the case of each Lender listed on the
signature pages hereof) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each other
Lender) in any such requirement for a deduction, withholding or payment
as is mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date of
this Agreement or at the date of such Assignment Agreement, as the case
may be, in respect of payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "NON-US LENDER") shall deliver to Administrative
Agent for transmission to Borrowers, on or prior to the Second
Restatement Date (in the case of each Lender listed on the
signature pages hereof) or on or prior to the date of the
Assignment Agreement pursuant to which it becomes a Lender (in
the case of each other Lender), and at such other times as may be
necessary in the determination of Borrowers or Administrative
Agent (each in the reasonable exercise of its discretion), (1)
two original copies of Internal Revenue Service Form 1001 or 4224
(or any successor forms including, but not limited to, W-8ECI or
W-8BEN), properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations
issued thereunder to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with
respect to any payments to such Lender of principal, interest,
fees or other amounts payable under any of the Loan Documents or
(2) if such Lender is not a "bank" or other Person described in
Section 881(c)(3) of the Internal Revenue Code and cannot deliver
either Internal Revenue Service Form 1001 or 4224 pursuant to
clause (1) above, a Certificate re Non-Bank Status together with
two original copies of Internal Revenue Service Form W-8 (or any
successor form), properly completed and duly executed by such
Lender, together with any other certificate or statement of
exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is
not subject to deduction or withholding of United States federal
income tax with respect to any payments to such Lender of
interest payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters pursuant to subsection
2.7B(iii)(a) hereby agrees, from time to time after the initial
delivery by such Lender of such forms, certificates or other
evidence, whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, that such Lender shall
promptly (1) deliver to Administrative Agent for transmission to
Borrowers two new original copies of Internal Revenue Service
Form 1001 or 4224, or a Certificate re Non-Bank Status and two
original copies of Internal
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Revenue Service Form W-8, as the case may be, properly completed
and duly executed by such Lender, together with any other
certificate or statement of exemption required in order to
confirm or establish that such Lender is not subject to
deduction or withholding of United States federal income tax
with respect to payments to such Lender under the Loan Documents
or (2) notify Administrative Agent and Borrowers of its
inability to deliver any such forms, certificates or other
evidence.
(c) Borrowers shall not be required to pay any additional
amount to any Non-US Lender under clause (c) of subsection
2.7B(ii) if such Lender shall have failed to satisfy the
requirements of clause (a) or (b) of this subsection 2.7B(iii);
provided that if such Lender shall have satisfied the
requirements of subsection 2.7B(iii)(a) on the Second Restatement
Effective Date (in the case of each Lender listed on the
signature pages hereof) or on the date of the Assignment
Agreement pursuant to which it became a Lender (in the case of
each other Lender), nothing in this subsection 2.7B(iii)(c) shall
relieve Borrowers of their obligation to pay any additional
amounts pursuant to clause (c) of subsection 2.7B(ii) in the
event that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any change
in the interpretation, administration or application thereof,
such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing
the fact that such Lender is not subject to withholding as
described in subsection 2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have
determined that the adoption, effectiveness, phase-in or applicability after the
date hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender as a consequence of, or with reference
to, such Lender's Loans or Commitment or other obligations hereunder to a level
below that which such Lender or such controlling corporation could have achieved
but for such adoption, effectiveness, phase-in, applicability, change or
compliance (taking into consideration the policies of such Lender or such
controlling corporation with regard to capital adequacy), then from time to
time, within five Business Days after receipt by Borrowers from such Lender of
the statement referred to in the next sentence, Borrowers shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction. Such Lender
shall deliver to Borrowers (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis of the calculation of
such additional amounts, which statement shall be conclusive and binding upon
all parties hereto absent manifest error.
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2.8 OBLIGATION OF LENDERS TO MITIGATE.
Each Lender agrees that, as promptly as practicable after the
officer of such Lender responsible for administering the Loans of such Lender
becomes aware of the occurrence of an event or the existence of a condition that
would cause such Lender to become an Affected Lender or that would entitle such
Lender to receive payments under subsection 2.7, it will, to the extent not
inconsistent with the internal policies of such Lender and any applicable legal
or regulatory restrictions, use reasonable efforts (i) to make, fund or maintain
the Commitment of such Lender or the affected Loans of such Lender through
another lending office of such Lender, or (ii) take such other measures as such
Lender may deem reasonable, if as a result thereof the circumstances which would
cause such Lender to be an Affected Lender would cease to exist or the
additional amounts which would otherwise be required to be paid to such Lender
pursuant to subsection 2.7 would be materially reduced and if, as determined by
such Lender in its sole discretion, the making, funding or maintaining of such
Commitment or Loans through such other lending office or in accordance with such
other measures, as the case may be, would not otherwise materially adversely
affect such Commitment or Loans or the interests of such Lender; provided that
such Lender will not be obligated to utilize such other lending office pursuant
to this subsection 2.8 unless Borrowers agree to pay all reasonable incremental
expenses incurred by such Lender as a result of utilizing such other lending
office as described in clause (i) above. A certificate as to the amount of any
such expenses payable by Borrowers pursuant to this subsection 2.8 (setting
forth in reasonable detail the basis for requesting such amount) submitted by
such Lender to Borrowers (with a copy to Administrative Agent) shall be
conclusive absent manifest error.
2.9 EXISTING LOANS.
Notwithstanding anything to the contrary herein, as of the Second
Restatement Effective Date, all Existing Loans shall be maintained as, and shall
be deemed to be, Loans hereunder (in each case in the same corresponding type
and amount) and shall be subject to the terms and provisions of this Agreement
and shall be joint and several Obligations of each Borrower.
2.10 JOINT AND SEVERAL LIABILITY; PAYMENT INDEMNIFICATIONS; ETC.
A. JOINT AND SEVERAL LIABILITY. All Obligations of Borrowers
under this Agreement and the other Loan Documents shall be joint and several
Obligations of each Borrower.
B. SUBROGATION. Until the Obligations shall have been paid in
full in cash, each Borrower shall withhold exercise of any right of subrogation,
contribution or any other right to enforce any remedy which it now has or may
hereafter have against any other Borrower or any other guarantor of the
Obligations. Each Borrower further agrees that, to the extent the waiver of its
rights of subrogation, contribution and remedies as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
such rights such Borrower may have against any other Borrower, any collateral or
security or any such other guarantor, shall be junior and subordinate to any
rights Administrative Agent or Lenders may have against any such Borrower, any
such collateral or security, and any such other guarantor.
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C. MAXIMUM AMOUNT. Anything contained in this Agreement to the
contrary notwithstanding, the obligations of each Borrower hereunder shall be
limited to a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "FRAUDULENT
TRANSFER LAWS"), in each case after giving effect to all other liabilities of
such Borrower, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such Borrower
in respect of intercompany indebtedness to its Affiliates to the extent that
such indebtedness would be discharged in an amount equal to the amount paid by
such Borrower hereunder) and after giving effect as assets to the value (as
determined under the applicable provisions of the Fraudulent Transfer Laws) of
any rights to subrogation or contribution of such Borrower pursuant to (i)
applicable law or (ii) any agreement providing for an equitable allocation among
such Borrower and its Affiliates of obligations arising under support agreements
or guaranties by such parties.
D. CONTRIBUTION. Subject to Section 2.10B, each Borrower together
desires to allocate among themselves, in a fair and equitable manner, their
obligations arising under this Agreement. Accordingly, in the event any payment
or distribution is made by a Borrower under this Agreement (a "FUNDING
BORROWER") that exceeds its Fair Share (as defined below), that Funding Borrower
shall be entitled to a contribution from each of the other Borrowers in all or a
part of the amount of such other Borrower's Fair Share Shortfall (as defined
below), with the result that all such contributions will cause each Borrower's
Aggregate Payments (as defined below) to equal its Fair Share. "FAIR SHARE"
means, with respect to a Borrower as of any date of determination, an amount
equal to (i) the ratio of (x) the Adjusted Maximum Amount (as defined below)
with respect to such Borrower to (y) the aggregate of the Adjusted Maximum
Amounts with respect to all Borrowers, multiplied by (ii) the aggregate amount
paid or distributed on or before such date by all Funding Borrowers under this
Agreement in respect of the Obligations. "FAIR SHARE SHORTFALL" means, with
respect to a Borrower as of any date of determination, the excess, if any, of
the Fair Share of such Borrower over the Aggregate Payments of such Borrower.
"ADJUSTED MAXIMUM AMOUNT" means, with respect to a Borrower, the maximum
aggregate amount of the obligations of such Borrower under this Agreement
determined in accordance with subsection 2.10C; provided that, solely for
purposes of calculating the "Adjusted Maximum Amount" with respect to any
Borrower or for purposes of this subsection 2.10D, the assets or liabilities
arising by virtue of any rights to or obligations of contribution hereunder
shall not be considered as assets or liabilities of such Borrower. "AGGREGATE
PAYMENTS" means, with respect to a Borrower as of any date of determination, the
aggregate amount of all payments and distributions made on or before such date
by such Borrower in respect of this Agreement (including, without limitation, in
respect of this subsection 2.10D). The amounts payable as contributions
hereunder shall be determined as of the date on which the related payment or
distribution is made by the applicable Funding Borrower. The allocation among
Borrowers of their obligations as set forth in this subsection 2.10D shall not
be construed in any way to limit the liability of any Borrower hereunder.
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SECTION 3.
CONDITIONS TO LOANS
The effectiveness of this Agreement and the obligations of
Lenders to make (or maintain, as the case may be) Loans hereunder are subject to
the satisfaction of the following conditions.
3.1 CONDITIONS TO INITIAL LOANS.
The obligations of Lenders to make (or maintain, as the case may
be) any Loans to be made on the Second Restatement Effective Date are, in
addition to the conditions precedent specified in subsection 3.2, subject to
prior or concurrent satisfaction of the following conditions:
A. CREDIT PARTY DOCUMENTS. On or before the Second Restatement
Effective Date, each Credit Party shall deliver or cause to be delivered to
Lenders (or to Administrative Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender and its counsel) the
following, each, unless otherwise noted, dated the Second Restatement Effective
Date:
(i) Certified copies of its Certificate or Articles of
Incorporation or Limited Liability Company Certificate, as the
case may be, together with a good standing certificate from the
Secretary of State of its state of organization and each other
state in which it is qualified as a foreign corporation to do
business and, to the extent generally available, a certificate or
other evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing authority
of each of such states, each dated a recent date prior to the
Second Restatement Effective Date;
(ii) Copies of its Bylaws or Limited Liability Company Agreement,
as the case may be, certified as of the Second Restatement
Effective Date by its corporate secretary or an assistant
secretary;
(iii) Resolutions of its Board of Directors or managing member
approving and authorizing the execution, delivery and performance
of each Loan Document to which it is to be a party, certified as
of the Second Restatement Effective Date by its corporate
secretary or an assistant secretary as being in full force and
effect without modification or amendment;
(iv) Signature and incumbency certificates of its officers
executing the Loan Documents to which it is to be a party;
(v) Executed originals of this Agreement, the Parent Pledge
Agreement, the Notes (in the case of Borrowers and duly executed
in accordance with subsection 2.1D, drawn to the order of each
Lender and with appropriate insertions) and the other Loan
Documents to which it is to be a party; and
(vi) Such other documents as Administrative Agent may reasonably
request.
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B. SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY.
Administrative Agent shall have received evidence satisfactory to it that each
Credit Party shall have taken or caused to be taken all such actions, executed
and delivered or caused to be executed and delivered all such agreements,
documents and instruments, and made or caused to be made all such filings and
recordings that may be necessary or, in the opinion of Administrative Agent,
desirable in order to create and continue in favor of Administrative Agent, for
the benefit of Lenders, a valid and (upon such filing and recording) perfected
first priority security interest in the entire personal and mixed property
Collateral to the extent required under the Collateral Documents, as security
for the Obligations under this Agreement. Such actions shall include the
following:
(i) Schedules to Collateral Documents. Delivery to Administrative
Agent of accurate and complete schedules or updated schedules, as
the case may be, to all of the applicable Collateral Documents;
(ii) Lien Searches and UCC Termination Statements. Delivery to
Administrative Agent of (a) the results of a recent search, by a
Person satisfactory to Administrative Agent, of all effective UCC
financing statements and fixture filings, mortgages, and all
judgment and tax lien filings which may have been made with
respect to any assets of the Premier Acquired Systems, together
with copies of all such filings disclosed by such search, and (b)
UCC termination statements duly executed by all applicable
Persons for filing in all applicable jurisdictions as may be
necessary to terminate any effective UCC financing statements or
fixture filings disclosed in such search (other than any such
financing statements or fixture filings in respect of Liens
permitted to remain outstanding pursuant to the terms of this
Agreement);
(iii) UCC Financing Statements and Fixture Filings. Delivery to
Administrative Agent of UCC financing statements and/or
amendments and, where appropriate, fixture filings, duly executed
by each Credit Party with respect to the Premier Acquired Systems
and any other Collateral under the Security Agreement for filing
in all jurisdictions as may be necessary or, in the opinion of
Administrative Agent, desirable to perfect the security interests
created in such Collateral pursuant to such Collateral Documents;
and
(iv) Franchises. Administrative Agent shall be satisfied that all
rights and remedies of Administrative Agent and Lenders under the
Loan Documents, including without limitation, all rights and
remedies in and to the Collateral, shall not conflict with or
cause a breach or default under any Franchise.
C. NO MATERIAL ADVERSE EFFECT. Since December 31, 2000, (i) no
Material Adverse Effect shall have occurred and (ii) there shall have occurred
no material adverse effect upon the business, operation, properties, assets,
condition (financial or otherwise) or prospects of Premier or Borrowers.
D. PARENT FINANCING. On or before the Second Restatement
Effective Date, Parent shall have issued the Premier Parent Note (in form and
substance satisfactory to Administrative Agent) and shall have contributed
common equity (in form and substance
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satisfactory to Administrative Agent and, in any event, in an amount sufficient
to ensure compliance with the financial covenants set forth in subsection 6.6 on
a pro forma basis after giving effect to the Premier Acquisition) to Company in
an amount not less than the sum of (i) Parent's pro rata share of the cash
proceeds that would have been distributed to it as the general partner of
Premier determined as if the cable system assets of Premier had been sold to an
independent third party and (ii) the principal amount of the Premier Parent
Note, and Parent shall deliver on the Second Restatement Effective Date to
Administrative Agent an Officer's Certificate to that effect, all in form and
substance satisfactory to Administrative Agent.
E. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS; NO
DEFAULT. Borrowers shall have delivered to Administrative Agent an Officer's
Certificate, in form and substance satisfactory to Administrative Agent, to the
effect that (i) the representations and warranties in Section 4 hereof are true,
correct and complete in all material respects on and as of the Second
Restatement Effective Date to the same extent as though made on and as of that
date; (ii) each Credit Party shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides shall be
performed or satisfied by it on or before the Second Restatement Effective Date
except as otherwise disclosed to and agreed to in writing by Administrative
Agent and Requisite Lenders and (iii) as of the Second Restatement Effective
Date no Event of Default or Potential Event of Default shall have occurred and
be continuing.
F. FINANCIAL STATEMENTS. On or before the Second Restatement
Effective Date, Administrative Agent shall have received (i) the financial
information and accountants' reports described in subsection 5.1 for Parent,
Borrowers and Premier for the Fiscal Year ended December 31, 2000 (audited) and
the Fiscal Quarter ended March 31, 2001 (unaudited), and (ii) the unaudited pro
forma financial statements of Borrowers as of the Second Restatement Effective
Date giving effect to the Premier Acquisition, in each case certified as true,
correct and complete pursuant to an Officer's Certificate of Borrowers and
Administrative Agent shall be satisfied that the information set forth in such
financial statements is in substantial accordance with the estimates previously
furnished by Borrowers to the Administrative Agent.
G. DELIVERY OF FINANCIAL CONDITION CERTIFICATE. On or before the
making of the initial Loans on the Second Restatement Effective Date, Borrowers
shall have delivered a Financial Condition Certificate, substantially in the
form of Exhibit XI annexed hereto with appropriate attachments demonstrating
that, both immediately prior to and immediately after giving effect to the
consummation of the Premier Acquisition and the other transactions on the Second
Restatement Effective Date (including incurrence of the Obligations) Borrowers
are Solvent.
H. PRO FORMA LEVERAGE RATIO. As of the Second Restatement
Effective Date, after giving effect to any pro forma adjustments (including the
Premier Acquisition and reasonable pro forma reductions in administrative
expenses resulting from the liquidation of Premier, satisfactory to
Administrative Agent), the pro forma Leverage Ratio for the most recently ended
three consecutive month period for which financial information is available
(calculated in a manner satisfactory to Administrative Agent and after giving
effect to the making of the Loans and the consummation of the other transactions
on the Second Restatement Effective Date) shall be less than 5.50:1.00.
Borrowers shall have delivered to Administrative
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Agent an Officer's Certificate to such effect, in form and substance
satisfactory to Administrative Agent.
I. EVIDENCE OF INSURANCE. Borrowers shall have delivered to
Administrative Agent certificates of insurance naming Administrative Agent, on
behalf and for the ratable benefit of Lenders, as loss payee under the casualty
insurance policies and as additional insured under the liability and business
interruption policies, all as required pursuant to subsection 5.4 hereof or
pursuant to the Collateral Documents. All such certificates of insurance shall
contain endorsements as are reasonably required by Administrative Agent.
J. DELIVERY OF SOURCES, USES AND FUNDING CERTIFICATE. Borrowers
shall have delivered an Officer's Certificate detailing the sources and uses of
all funds for the transactions occurring on the Second Restatement Effective
Date, with proper wire instructions for Administrative Agent for the application
of the Loan proceeds on the Second Restatement Effective Date, all in form and
substance satisfactory to Administrative Agent.
K. RELATED DOCUMENTS. On the Second Restatement Effective Date,
(i) Administrative Agent shall have received executed or conformed copies of the
Related Documents as in effect on such date including any amendments thereto on
or prior to the Second Restatement Effective Date, the terms and conditions of
which shall be in all respects satisfactory to Administrative Agent, (ii) such
Related Documents shall be in full force and effect and no term or condition
thereof shall have been amended, modified or waived after the execution thereof,
(iii) neither Parent nor any Credit Party shall have failed in any respect to
perform any obligation or covenant required by such Related Documents to be
performed or complied with by it on or before the Second Restatement Effective
Date, and (iv) Administrative Agent shall have received an Officer's Certificate
in form and substance satisfactory to Administrative Agent from Parent and
Borrowers to the effect set forth in clauses (i), (ii) and (iii) above.
L. ACQUISITIONS. On or before the Second Restatement Effective
Date, Borrowers shall deliver to Administrative Agent a certificate stating that
(a) the Premier Acquisition has been duly approved by Borrowers, (b) all action
necessary by Borrowers to consummate the Premier Acquisition has been taken
(other than the payment of the purchase price consisting of $6,900,000 in cash,
net of any applicable in-kind distribution, and the issuance of the Premier
Parent Note and the conveyance of the appropriate assets) and (c) each party
delivering such certificate will proceed to consummate the Premier Acquisition
immediately upon the making of the Loans on the Second Restatement Effective
Date. The Premier Acquisition shall become effective in accordance with the
Premier Acquisition Agreement and any other documents executed in connection
therewith without any material variation therefrom, except as disclosed to
Lenders and consented to in writing by Administrative Agent.
M. CONSENTS.
(i) Necessary Consents. Borrowers shall have obtained all
consents and approvals necessary or advisable in connection with
the Premier Acquisition, the transactions contemplated by the
Loan Documents and the continued operation of
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the business conducted by Borrowers and their respective
Subsidiaries (including, without limitation, any consents with
respect to Franchises, programming and retransmission and the
consent of the FCC to the transfer of any FCC Licenses related to
the Cable Television Systems) and each of the foregoing shall be
in full force and effect and in form and substance satisfactory
to Administrative Agent. All applicable waiting periods shall
have expired without any action being taken or threatened by any
competent authority which would restrain, prevent or otherwise
impose adverse conditions on the Premier Acquisition, the
transactions contemplated by the Loan Documents, the continued
operation of the business conducted by Borrowers and their
respective Subsidiaries or the financing of any thereof and no
action, request for stay, petition for review or rehearing,
reconsideration or appeal shall be pending and any time for
agency action to set aside its consent on its own motion has
expired;
(ii) Officer's Certificate. Administrative Agent shall have
received an Officer's Certificate in form and substance
satisfactory to Administrative Agent from each Credit Party
confirming the foregoing matters and any other evidence requested
by Administrative Agent in support thereof.
N. ABSENCE OF LIENS; TERMINATION OF DEBT. As of the Second
Restatement Effective Date, (i) all assets of Borrowers (including, without
limitation, the assets of the Premier Acquired Systems) shall be free and clear
of all Liens (other than Permitted Liens) and all existing Indebtedness of
Premier regarding the Premier Acquired Systems shall have been repaid,
terminated and cancelled and all Liens in respect thereof shall have been
released, and Administrative Agent shall have received appropriate pay-off,
termination and release letters from the holders of such debt and liabilities,
all in form and substance satisfactory to Administrative Agent.
O. ENVIRONMENTAL AUDIT. On or before the Second Restatement
Effective Date, Borrowers shall have delivered all environmental information and
reports received in connection with the operation of Borrowers and the Premier
Acquired Systems to Administrative Agent, all of the foregoing to be in form and
substance satisfactory to Administrative Agent.
P. OPINIONS OF CREDIT PARTIES' COUNSEL. Lenders and their
respective counsel shall have received originally executed copies of the
favorable written opinion of special counsel for Parent and the Credit Parties,
in form and substance reasonably satisfactory to Administrative Agent and its
counsel, dated as of the Second Restatement Effective Date and setting forth
substantially the matters in the opinions designated in Exhibit IX annexed
hereto and as to such other matters as Administrative Agent acting on behalf of
Lenders may reasonably request.
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Q. OPINIONS OF ADMINISTRATIVE AGENT'S COUNSEL. Lenders shall have
received originally executed copies of one or more favorable written opinions of
O'Melveny & Myers LLP, counsel to Administrative Agent, dated as of the Second
Restatement Effective Date, substantially in the form of Exhibit X annexed
hereto and as to such other matters as Administrative Agent acting on behalf of
Lenders may reasonably request.
R. ACKNOWLEDGEMENT AND CONSENT. On or before the Second
Restatement Effective Date, each of Parent and NMG shall have delivered to
Lenders (or to Administrative Agent with sufficient originally executed copies
for each Lender and its counsel) the Acknowledgement and Consent.
S. FEES. Borrowers shall have paid to Administrative Agent, for
distribution (as appropriate) to Administrative Agent and Lenders the fees
payable on the Second Restatement Effective Date referred to in subsection 2.3.
T. COMPLETION OF PROCEEDINGS. All corporate and other proceedings
taken or to be taken in connection with the transactions contemplated hereby and
all documents incidental thereto not previously found acceptable by
Administrative Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Administrative Agent and such counsel, and
Administrative Agent and such counsel shall have received all such counterpart
originals or certified copies of such documents as Administrative Agent may
reasonably request.
3.2 CONDITIONS TO CERTAIN REVOLVING LOANS.
The obligations of Lenders to make Revolving Loans to be used to
consummate the NCP6 Acquisition are, in addition to the conditions precedent
specified in subsection 3.3, subject to satisfaction of the following
conditions:
A. CONSUMMATION OF THE NCP6 ACQUISITION. Borrowers shall deliver
to Administrative Agent a certificate stating that (i) the NCP6 Acquisition has
been duly approved by Borrowers, as applicable, (ii) all action necessary by
Borrowers to consummate the NCP6 Acquisition has been taken (other than the
payment of the purchase price consisting of $18,200,000 in cash, net of any
applicable in-kind distribution, and the issuance of the NCP6 Parent Note and
the conveyance of the appropriate assets), and (iii) Company will proceed to
consummate the NCP6 Acquisition immediately upon the making of the Loans on the
NCP6 Acquisition Date. Borrowers shall deliver to Administrative Agent the NCP6
Acquisition Agreement and any other documents executed in connection therewith,
and the NCP6 Acquisition shall become effective in accordance with the foregoing
documents, without any material variation therefrom, except as disclosed to
Lenders and consented to in writing by Administrative Agent.
B. CONSENTS.
(i) Necessary Consents. Borrowers shall have obtained all
consents and approvals necessary or advisable in connection with
the NCP6 Acquisition, (including, without limitation, any
consents with respect to Franchises, programming and
retransmission and the consent of the FCC to the transfer of any
FCC Licenses related to the NCP6 Acquired Systems) and each of
the foregoing
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shall be in full force and effect and in form and substance
satisfactory to Administrative Agent. All applicable waiting
periods shall have expired without any action being taken or
threatened by any competent authority which would restrain,
prevent or otherwise impose adverse conditions on the NCP6
Acquisition, and no action request for stay, petition for review
or rehearing, reconsideration or appeal shall be pending and any
time for agency action to set aside its consent on its own motion
has expired; and
(ii) Officer's Certificate. Administrative Agent shall have
received an Officer's Certificate in form and substance
satisfactory to Administrative Agent from each Credit Party
confirming the foregoing matters and any other evidence requested
by Administrative Agent in support thereof.
C. ABSENCE OF LIENS; TERMINATION OF DEBT. All assets of the NCP6
Acquired Systems shall be free and clear of all Liens (other than Permitted
Liens) and all existing Indebtedness of NCP6 regarding the NCP6 Acquired Systems
shall have been repaid, terminated and cancelled and all Liens in respect
thereof shall have been released, and Administrative Agent shall have received
appropriate pay-off, termination and release letters from the holders of such
debt and liabilities, all in form and substance satisfactory to Administrative
Agent.
D. SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY.
Administrative Agent shall have received evidence satisfactory to it that each
Credit Party shall have taken or caused to be taken all such actions, executed
and delivered or caused to be executed and delivered all such agreements,
documents and instruments, and made or caused to be made all such filings and
recordings that may be necessary or, in the opinion of Administrative Agent,
desirable in order to create and continue in favor of Administrative Agent, for
the benefit of Lenders, a valid and (upon such filing and recording) perfected
first priority security interest in the entire personal and mixed property
Collateral to the extent required under the Collateral Documents, as security
for the Obligations under this Agreement. Such actions shall include the
following:
(i) Schedules to Collateral Documents. Delivery to Administrative
Agent of accurate and complete schedules or updated schedules, as
the case may be, to all of the applicable Collateral Documents;
(ii) Lien Searches and UCC Termination Statements. Delivery to
Administrative Agent of (a) the results of a recent search, by a
Person satisfactory to Administrative Agent, of all effective UCC
financing statements and fixture filings, mortgages, and all
judgment and tax lien filings which may have been made with
respect to any assets of the NCP6 Acquired Systems, together with
copies of all such filings disclosed by such search, and (b) UCC
termination statements duly executed by all applicable Persons
for filing in all applicable jurisdictions as may be necessary to
terminate any effective UCC financing statements or fixture
filings disclosed in such search (other than any such financing
statements or fixture filings in respect of Liens permitted to
remain outstanding pursuant to the terms of this Agreement);
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(iii) UCC Financing Statements and Fixture Filings. Delivery to
Administrative Agent of UCC financing statements and/or
amendments and, where appropriate, fixture filings, duly executed
by each Credit Party with respect to the NCP6 Acquired Systems
and any other Collateral under the Security Agreement for filing
in all jurisdictions as may be necessary or, in the opinion of
Administrative Agent, desirable to perfect the security interests
created in such Collateral pursuant to such Collateral Documents;
and
(iv) Franchises. Administrative Agent shall be satisfied that all
rights and remedies of Administrative Agent and Lenders under the
Loan Documents, including without limitation, all rights and
remedies in and to the Collateral, shall not conflict with or
cause a breach or default under any Franchise.
E. MORTGAGES; MORTGAGE POLICIES; ETC. Administrative Agent shall
have received from Borrowers:
(i) Mortgages. Fully executed and notarized Mortgages for the
Real Property acquired pursuant to the NCP6 Acquisition and
serving as a headend for at least 1,000 subscribers, and/or
amendments or supplements to the Mortgages executed prior to the
NCP6 Acquisition Date (in each case, to the extent such amendment
or supplement is required pursuant to applicable law to continue
the effectiveness of such Mortgage with respect to this
Agreement) in proper form for recording in all appropriate places
in all applicable jurisdictions, encumbering the Real Property
(each a "NCP6 MORTGAGED PROPERTY" and, collectively, the "NCP6
MORTGAGED PROPERTIES");
(ii) Landlord Consent Letters; Recorded Leasehold Interests. In
the case of each leasehold Real Property acquired pursuant to the
NCP6 Acquisition, (a) a landlord Consent Letter with respect
thereto and (b) evidence that such leasehold Real Property is a
recorded leasehold interest;
(iii) Title Insurance. (a) ALTA mortgagee title insurance
policies or unconditional commitments therefor or updates thereto
in the case of insurance policies or unconditional commitments
therefor issued prior to the NCP6 Acquisition Date (the "NCP6
MORTGAGE POLICIES") issued by a title company satisfactory to
Administrative Agent with respect to the NCP6 Mortgaged
Properties in amounts not less than the respective amounts
designated therein with respect to any particular NCP6 Mortgaged
Properties, insuring fee simple title to, or a valid leasehold
interest in, each such NCP6 Mortgaged Property vested in
Borrowers and assuring Administrative Agent that the applicable
Mortgages create valid and enforceable first priority mortgage
Liens on the respective NCP6 Mortgaged Properties encumbered
thereby, subject only to a standard survey exception, which NCP6
Mortgage Policies (1) shall include an endorsement for mechanics'
liens, for future advances under this Agreement and for any other
matters reasonably requested by Administrative Agent and (2)
shall provide for affirmative insurance and such reinsurance as
Administrative Agent may reasonably request, all of the foregoing
in form and substance reasonably
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satisfactory to Administrative Agent; and (b) evidence
satisfactory to Administrative Agent that such Loan Party has (i)
delivered to the title company all certificates and affidavits
required by the title company in connection with the issuance of
the NCP6 Mortgage Policies and (ii) paid to the title company or
to the appropriate governmental authorities all expenses and
premiums of the title company in connection with the issuance of
the NCP6 Mortgage Policies and all recording and stamp taxes
(including mortgage recording and intangible taxes) payable in
connection with recording the Mortgages in the appropriate real
estate records;
(iv) Title Reports. With respect to each NCP6 Mortgaged Property,
a title report issued by the title company with respect thereto,
dated not more than 30 days prior to the NCP6 Acquisition Date
and satisfactory in form and substance to Administrative Agent;
(v) Copies of Documents Relating to Title Exceptions. Copies of
all recorded documents listed as exceptions to title or otherwise
referred to in the NCP6 Mortgage Policies or in the title reports
delivered pursuant to subsection 3.2E(v); and
(vi) Matters Relating to Flood Hazard Properties. (a) Evidence to
the extent required by law, which may be in the form of a letter
from an insurance broker or a municipal engineer, as to whether
(1) any NCP6 Mortgaged Property is a Flood Hazard Property and
(2) the community in which any such Flood Hazard Property is
located is participating in the National Flood Insurance Program,
(b) if there are any such Flood Hazard Properties of NCP6,
Borrowers' written acknowledgement of receipt of written
notification from Administrative Agent (1) as to the existence of
each such Flood Hazard Property and (2) as to whether the
community in which each such Flood Hazard Property of NCP6 is
located is participating in the National Flood Insurance Program,
and (c) in the event any such Flood Hazard Property is located in
a community that participates in the National Flood Insurance
Program, evidence that Borrower has obtained flood insurance in
respect of such Flood Hazard Property to the extent required
under the applicable regulations of the Board of Governors of the
Federal Reserve System.
F. PARENT FINANCING. On or before the NCP6 Acquisition Date,
Parent shall have issued the NCP6 Parent Note (in form and substance
satisfactory to Administrative Agent and substantially similar to the Premier
Parent Note except as provided herein with respect to the distribution which
will reflect differences in term, amortization and interest rate) and shall have
contributed common equity (in form and substance satisfactory to Administrative
Agent and, in any event, in an amount sufficient to ensure compliance with the
financial covenants set forth in subsection 6.6 on a pro forma basis after
giving effect to the NCP6 Acquisition) to Company in an amount not less than the
sum of (i) Parent's pro rata share of the net cash proceeds in excess of
$2,000,000 that would have been distributed to it as the managing general
partner of NCP6 determined as if the cable system assets of NCP6 had been sold
to an independent third party and (ii) the principal amount of the NCP6 Parent
Note, and Parent shall deliver on the NCP6
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Acquisition Date to Administrative Agent an Officer's Certificate to that
effect, all in form and substance satisfactory to Administrative Agent.
G. ENVIRONMENTAL AUDIT. On the NCP6 Acquisition Date, Company
shall have delivered all environmental information and reports received in
connection with the acquisition of the NCP6 Acquired Systems to Administrative
Agent, all of the foregoing to be in form and substance satisfactory to
Administrative Agent.
H. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS; NO
DEFAULT. Borrowers shall have delivered to Administrative Agent an Officer's
Certificate, in form and substance satisfactory to Administrative Agent, to the
effect that (i) the representations and warranties in Section 4 hereof are true,
correct and complete in all material respects on and as of the NCP6 Acquisition
Date to the same extent as though made on and as of that date; provided that,
with the consent of the Administrative Agent, Borrowers may update the Schedules
to the representations and warranties in Section 4 to reflect any changes in
connection with the NCP6 Acquisition; (ii) that each Credit Party shall have
performed in all material respects all agreements and satisfied all conditions
which this Agreement provides shall be performed or satisfied by it on or before
the NCP6 Acquisition Date except as otherwise disclosed to and agreed to in
writing by Administrative Agent and Requisite Lenders and (iii) that as of the
NCP6 Acquisition Date no Event of Default or Potential Event of Default shall
have occurred and be continuing.
I. FINANCIAL STATEMENTS. On or before the NCP6 Acquisition Date,
Administrative Agent shall have received (i) audited financial statements of
NCP6 for the Fiscal Year ended 2000, (ii) the unaudited financial statements for
NCP6 and the NCP6 Acquired Systems for the completed Fiscal Quarters ended in
2001, 30 days prior to such date, and (iii) unaudited financial statements of
the NCP6 Acquired Systems for the Fiscal Year ended December 31, 2000, in each
case, prepared in accordance with subsection 5.1 and certified as true, correct
and complete pursuant to an Officer's Certificate of Borrowers and
Administrative Agent shall be satisfied that the information set forth in such
financial statements is in substantial accordance with the estimates previously
furnished by Borrowers to the Administrative Agent.
J. NO MATERIAL ADVERSE EFFECT. Since December 31, 2000, (i) no
Material Adverse Effect shall have occurred and (ii) there shall have occurred
no material adverse effect upon the business, operation, properties, assets,
condition (financial or otherwise) or prospects of NCP6 or Borrowers.
K. COMPLETION OF PROCEEDINGS. All corporate and other proceedings
taken or to be taken in connection with the transactions contemplated hereby and
all documents incidental thereto not previously found acceptable by
Administrative Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Administrative Agent and such counsel, and
Administrative Agent and such counsel shall have received all such counterpart
originals or certified copies of such documents as Administrative Agent may
reasonably request.
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3.3 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date
(which shall not include the conversion or continuation of outstanding Loans
without any increase in the principal amount thereof) are subject to the
following further conditions precedent:
A. Administrative Agent shall have received before that Funding
Date, in accordance with the provisions of subsection 2.1B, an originally
executed Notice of Borrowing, in each case signed by the chief executive
officer, the chief financial officer or the treasurer of Borrowers or by any
executive officer of Borrowers designated by any of the above-described officers
on behalf of Borrowers in a writing delivered to Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in
the other Loan Documents shall be true, correct and complete in
all material respects on and as of that Funding Date to the same
extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to
an earlier date, in which case such representations and
warranties shall have been true, correct and complete in all
material respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by
such Notice of Borrowing that would constitute an Event of
Default or a Potential Event of Default;
(iii) Borrowers shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement
provides shall be performed or satisfied by it on or before that
Funding Date;
(iv) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any
Lender from making the Loans to be made by it on that Funding
Date;
(v) The making of the Loans requested on such Funding Date shall
not violate any law including, without limitation, Regulation T,
Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System; and
(vi) There shall not be pending or, to the knowledge of any
Borrower, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Parent or any
Credit Party or any property of Parent or such Credit Party that
has not been disclosed by Borrowers in writing pursuant to
subsection 4.6 or 5.1(xii) prior to the making of the last
preceding Loans (or, in the case of the initial Loans, prior to
the execution of this Agreement), and there shall have occurred
no development not so disclosed in any such action, suit,
proceeding, governmental investigation or arbitration so
disclosed, that, in either event, in the opinion of
Administrative Agent or of Requisite Lenders, would be expected
to have a Material Adverse Effect; and no injunction or other
restraining order shall have been issued and no hearing to cause
an injunction or other
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restraining order to be issued shall be pending or noticed with
respect to any action, suit or proceeding seeking to enjoin or
otherwise prevent the consummation of, or to recover any damages
or obtain relief as a result of, the transactions contemplated by
this Agreement or the making of Loans hereunder.
SECTION 4.
BORROWERS REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make (or maintain, as the case may be), the Loans hereunder, each Borrower
represents and warrants to each Lender, on the date of this Agreement and on
each Funding Date, that the following statements are true, correct and complete:
4.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES, ETC.
A. ORGANIZATION AND POWERS. Each of the Credit Parties is a
corporation or limited liability company duly organized and validly existing
under the laws of its state of incorporation or organization. Each of the Credit
Parties has all requisite power and authority to own and operate its properties,
to carry on its business as now conducted and as proposed to be conducted, to
enter into the Loan Documents and to carry out the transactions contemplated
thereby.
B. QUALIFICATION AND GOOD STANDING. Each of the Credit Parties is
qualified to do business and in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its business and
operations, except in jurisdictions where the failure to be so qualified or in
good standing has not had and will not have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. The Credit Parties are engaged only in
the businesses permitted to be engaged in pursuant to subsection 6.13 and are
conducting their business in accordance with the provisions of subsection 6.13.
Each Credit Party holds all material licenses, permits, franchises, certificates
of authority, or any waivers of the foregoing that are necessary to permit them
to conduct their respective businesses as now conducted and to hold and operate
their respective properties. Except as set forth in Schedule 4.1E, all such
material licenses, permits, franchises, certificates of authority, and waivers
are valid and in full force and effect.
D. SUBSIDIARIES. Company does not hold any direct or indirect
interest in any Subsidiary other than NCV. NCV does not hold any direct or
indirect interest in any Subsidiary.
E. FRANCHISES. Schedule 4.1E annexed hereto accurately and
completely lists all material authorizations, licenses, permits and Franchises
granted or assigned to (a) any Credit Party (b) Premier with regard to the
Premier Acquired Systems, or (c) NCP6 with regard to the NCP6 Acquired Systems,
by the FCC or any other public or governmental agency or regulatory body,
including all material authorizations, licenses, permits and Franchises for the
construction, installation or operation of the Cable Television Systems. A
correct copy of each agreement evidencing such Franchises has been delivered to
Administrative Agent or its counsel. The same constitute the only material
licenses, permits or Franchises or other authorizations of any public or
governmental agency or regulatory body required in connection with the business
of the Credit Parties as conducted or proposed to be conducted after giving
effect to the Acquisitions.
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All existing Franchises are in full force and effect, are duly issued in the
name of, or validly assigned to, a Credit Party and such Person has full power
and authority to operate thereunder. Except as set forth in Schedule 4.1E
annexed hereto, no Franchise issued has a term which will expire prior to
September 30, 2009. Except as set forth in Schedule 4.1E annexed hereto, each of
the Franchises listed on Schedule 4.1E annexed hereto are, or will be (after
giving effect to the Acquisitions) assignable to Administrative Agent and
Lenders as collateral security for the Obligations. Schedule 4.1E also
accurately and completely lists all material agreements, if any, which are
presently in effect for the use of public utility facilities in connection with
the Cable Television Systems. No Credit Party has knowledge of the occurrence of
any event or the existence of any circumstance which is likely to lead to the
revocation, suspension, material adverse amendment or non-renewal of any
Franchise that could reasonably be expected to result in either (i) an Event of
Default or Potential Event of Default or (ii) a Material Adverse Effect.
F. COMMUNICATIONS ACT. The Credit Parties have duly filed in a
timely manner all cable television registration statements and other filings
which are required to be filed by the Credit Parties under the Communications
Act and are in all material respects in substantial compliance with the
Communications Act, including, without limitation, the rules and regulations of
the FCC relating to the carriage of television signals and rules and regulations
related to syndicated exclusivity. The Credit Parties have submitted all
requisite notices (if any are required) under the Copyright Act and the Rules
and Regulations of the Copyright Office for the carriage of all broadcast
stations as currently carried. The Credit Parties have filed in a timely manner
with the Copyright Office all required documents, instruments and statements of
account, have remitted payments of all required royalty fees and have obtained
the compulsory licenses provided for in Section 111 of the Copyright Act for the
carriage of broadcast signals, which licenses are currently valid and in full
force and effect. No Credit Party is liable to any Person for copyright
infringement under the Copyright Act as a result of its business operations
which would reasonably be expected to result in a Material Adverse Effect.
G. REAL PROPERTY. No Credit Party owns or leases any Real
Property other than as identified on Schedule 4.1G annexed hereto. Schedule 4.1G
also lists owned or leased Real Property included within the Premier Acquired
Systems and the NCP6 Acquired Systems.
4.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION. The execution, delivery and performance of the
Loan Documents and the Related Documents have been duly authorized by all
necessary action on the part of each Credit Party a party thereto.
B. NO CONFLICT. The execution, delivery and performance by each
Credit Party of the Loan Documents and the Related Documents to which such
Credit Party are parties, and the consummation of the transactions contemplated
thereby do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Parent or any Credit Party, the
Certificate or Articles of Incorporation, Limited Liability Company Agreement or
Bylaws of any Credit Party or any order, judgment or decree of any court or
other agency of government binding on any Credit Party, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of any Credit Party, (iii) result in or
require the creation or imposition of any Lien upon any of the
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properties or assets of any Credit Party (other than any Liens created under any
of the Loan Documents in favor of Administrative Agent on behalf and for the
ratable benefit of Lenders), or (iv) require any approval of stockholders or
members or any approval or consent of any Person under any Contractual
Obligation of any Credit Party, except for such approvals or consents which will
be obtained on or before the Second Restatement Effective Date and disclosed in
writing to Lenders.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance
by each Credit Party of the Loan Documents and the Related Documents to which
they are parties and the consummation of the transactions contemplated thereby
do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body. Except as set forth in Schedule 4.1E,
all consents or approvals required in connection with the Premier Acquisition
from franchisors with respect to the Franchises for the Premier Acquired Systems
or in connection with the NCP6 Acquisition from franchisors with respect to the
Franchises for the NCP6 Acquired Systems, in each case have been obtained and
are in full force and effect.
D. BINDING OBLIGATION. Each of the Loan Documents has been duly
executed and delivered by such of the Credit Parties as are parties thereto and
is the legally valid and binding obligation of such Persons, enforceable against
such Persons in accordance with its respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles relating
to enforceability.
4.3 FINANCIAL CONDITION.
Borrowers have heretofore delivered to Lenders, at Lenders'
request, the financial statements and information described in subsection 3.1.
All such statements were prepared in conformity with GAAP and fairly present, in
all material respects, the financial position (on a consolidated and, where
applicable, consolidating basis) of the entities described in such financial
statements as at the respective dates thereof and the results of operations and
cash flows (on a consolidated and, where applicable, consolidating basis) of the
entities described therein for each of the periods then ended, subject, in the
case of any such unaudited financial statements, to changes resulting from audit
and normal year-end adjustments. Borrowers do not (and will not following the
funding of the initial Loans) have any Contingent Obligation, contingent
liability or liability for taxes, long-term lease or unusual forward or
long-term commitment that is not reflected in the foregoing financial statements
or the notes thereto and which in any such case is material in relation to the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of any Borrower or any of its Subsidiaries.
4.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since December 31, 2000, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect. Neither any Borrower nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 6.5.
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4.5 TITLE TO PROPERTIES; LIENS.
The Credit Parties have (i) good, sufficient and legal title to
(in the case of fee interests in real property), (ii) valid leasehold interests
in (in the case of leasehold interests in real or personal property), or (iii)
good title to (in the case of all other personal property), all of their
respective properties and assets reflected in the financial statements referred
to in subsection 4.3 or in the most recent financial statements delivered
pursuant to subsection 5.1, in each case except for assets disposed of since the
date of such financial statements in the ordinary course of business or as
otherwise permitted under subsection 6.7. Except as permitted by this Agreement,
all such properties and assets are free and clear of Liens.
4.6 LITIGATION; ADVERSE FACTS.
There are no actions, suits, proceedings, arbitrations or
governmental investigations (whether or not purportedly on behalf of any Credit
Party) at law or in equity or before or by any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of any Credit
Party, threatened against or affecting any Credit Party or any property of any
Credit Party that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No Credit Party is (i) in
violation of any applicable laws that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect or (ii) subject to
or in default with respect to any final judgments, writs, injunctions, decrees,
rules or regulations of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
4.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 5.3, all tax returns
and reports of the Credit Parties required to be filed by any of them have been
timely filed, and all taxes, assessments, fees and other governmental charges
upon the Credit Parties and upon their respective properties, assets, income,
businesses and franchises which are due and payable have been paid when due and
payable. No Credit Party knows of any proposed tax assessment against any Credit
Party which is not being actively contested by such Credit Party in good faith
and by appropriate proceedings; provided that such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have been
made or provided therefor.
4.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS.
A. No Credit Party is in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions contained in
any of its Contractual Obligations, and no condition exists that, with the
giving of notice or the lapse of time or both, would constitute such a default,
except where the consequences, direct or indirect, of such default or defaults,
if any, would not have a Material Adverse Effect.
B. No Credit Party is a party to or is otherwise subject to any
agreements or instruments or any charter or other internal restrictions, the
non-defaulting performance of
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which, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.
4.9 GOVERNMENTAL REGULATION.
No Credit Party is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act
or the Investment Company Act of 1940 or under any other federal or state
statute or regulation which may limit its ability to incur Indebtedness or which
may otherwise render all or any portion of the Obligations unenforceable.
4.10 SECURITIES ACTIVITIES.
A. No Credit Party is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not more
than 25% of the value of the assets (either of a Credit Party alone, or a Credit
Party together with its Subsidiaries on a consolidated basis) subject to the
provisions of subsection 6.2 or 6.7 or subject to any restriction contained in
any agreement or instrument, between any Credit Party and any Lender or any
Affiliate of any Lender, relating to Indebtedness and within the scope of
subsection 7.2, will be Margin Stock.
4.11 EMPLOYEE BENEFIT PLANS.
A. Each Credit Party and each of its ERISA Affiliates are in
compliance with all applicable provisions and requirements of ERISA and the
regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan.
B. No ERISA Event has occurred or is reasonably expected to
occur.
C. Except to the extent required under Section 4980B of the
Internal Revenue Code, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or
former employees of any Borrower or any of its ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan,
there are no unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities).
4.12 CERTAIN FEES.
Except for fees and commissions related to the Acquisitions which
are set forth on Schedule 4.12 annexed hereto, no broker's or finder's fee or
commission will be payable with respect to this Agreement or any of the
transactions contemplated hereby, and each Borrower, jointly and severally,
hereby indemnifies Lenders against, and agrees that it will hold Lenders
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harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
4.13 ENVIRONMENTAL MATTERS.
A. No Hazardous Substances have been generated or manufactured
on, transported to or from, treated at, stored at or discharged from any Real
Property in violation of any Environmental Laws; no Hazardous Substances have
been discharged into subsurface waters under any Real Property in violation of
any Environmental Laws; no Hazardous Substances have been discharged from any
Real Property on or into property or waters (including subsurface waters)
adjacent to any Real Property in violation of any Environmental Laws; and, to
the knowledge of Borrowers, there are not now on any Real Property any
underground or above ground storage tanks regulated under any Environmental
Laws, in each case in a manner that has a reasonable possibility of giving rise
to an environmental claim that could be expected to have a Material Adverse
Effect.
B. No Credit Party (i) has received notice (written or oral) or
otherwise learned of any claim, demand, suit, action, proceeding, event,
condition, report, directive, Lien, violation, non-compliance or investigation
indicating or concerning any potential or actual liability (including, without
limitation, potential liability for enforcement, investigatory costs, cleanup
costs, government response costs, removal costs, remedial costs, natural
resources damages, property damages, personal injuries or penalties) arising in
connection with: (x) any non-compliance with or violation of the requirements of
any applicable Environmental Laws, or (y) the presence of any Hazardous
Substance on any Real Property (or any Real Property previously owned or leased
by any Credit Party) or the release or threatened release of any Hazardous
Substance into the environment, (ii) has any threatened or actual liability in
connection with the presence of any Hazardous Substance on any Real Property (or
any Real Property previously owned or leased by any Credit Party) or the release
or threatened release of any Hazardous Substance into the environment, (iii) has
received notice of any federal or state investigation evaluating whether any
remedial action is needed to respond to the presence of any Hazardous Substance
on any Real Property (or any Real Property previously owned or leased by any
Credit Party) or a release or threatened release of any Hazardous Substance into
the environment of which any Credit Party is or may be liable, or (iv) has
received notice that any Credit Party is or may be liable to any Person under
any Environmental Law, in each case in a manner that has a reasonable
possibility of giving rise to an environmental claim that could be expected to
have a Material Adverse Effect.
4.14 EMPLOYEE MATTERS.
There is no strike, stoppage or labor dispute in existence or
threatened involving any Credit Party that could reasonably be expected to have
a Material Adverse Effect.
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4.15 SOLVENCY.
Each Credit Party is and, upon the incurrence of any Obligations
by Borrowers on any date on which this representation is made, will be, Solvent.
4.16 INSURANCE.
Each Credit Party maintains, with, to its knowledge, financially
sound and reputable insurers, insurance with respect to its properties and
business and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by corporations of established
reputation engaged in the same or similar business of such types and in such
amounts as are customarily carried under similar circumstances by such other
corporations. Attached as Schedule 4.16 hereto is a complete and accurate
description of all policies of insurance that will be in effect as of the Second
Restatement Effective Date for the Credit Parties.
4.17 INTELLECTUAL PROPERTY.
A. The Credit Parties own, or are licensed to use, the
Intellectual Property and all such Intellectual Property is fully protected and
duly and properly registered, filed or issued in the appropriate office and
jurisdictions for such registrations, filing or issuances.
B. No material claim has been asserted by any Person with respect
to the use of any such Intellectual Property, or challenging or questioning the
validity or effectiveness of any such Intellectual Property. To each Credit
Party's knowledge, the use of such Intellectual Property by such Credit Party
does not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on the
part of any Credit Party that would result in a Material Adverse Effect. The
consummation of the transactions contemplated by this Agreement will not impair
the ownership of (or the license to use, as the case may be) any of such
Intellectual Property by any Credit Party.
4.18 DISCLOSURE.
No representation or warranty of any Credit Party contained in
any Loan Document or Related Document or in any other document, certificate or
written statement furnished to Lenders by or on behalf of such Credit Party or
its Subsidiaries for use in connection with the transactions contemplated by
this Agreement contains any untrue statement of a material fact or omits to
state a material fact (known to such Credit Party, in the case of any document
not furnished by it) necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by each
Credit Party to be reasonable at the time made, it being recognized by Lenders
that such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results. There are no facts known (or which should
upon the reasonable exercise of diligence be known) to any Credit Party (other
than matters of a general economic nature or matters affecting the cable
television industry generally) that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect and that have not
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been disclosed herein or in such other documents, certificates and statements
furnished to Lenders for use in connection with the transactions contemplated
hereby.
SECTION 5.
BORROWERS AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that, so long as the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations, unless Requisite Lenders shall otherwise give
prior written consent, each Borrower shall perform, and shall cause each other
Credit Party to perform, all covenants in this Section 5.
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Each Borrower will maintain, and cause each of its Subsidiaries
to maintain, a system of accounting established and administered in accordance
with sound business practices to permit preparation of financial statements in
conformity with GAAP. Borrowers will deliver, and shall cause Parent to deliver,
to Administrative Agent and Lenders:
(i) Subscriber Reports: as soon as available and in any event
within 45 days after the end of each Fiscal Quarter, and within
100 days after the end of each Fiscal Year, ending after the
Second Restatement Effective Date, a detailed report
substantially in the form of Exhibit VI annexed hereto;
(ii) Quarterly Financials: as soon as available and in any event
within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, (a) the unaudited consolidated
(and, if prepared, consolidating) balance sheet of Parent and
each Credit Party as at the end of such Fiscal Quarter and the
related consolidated (and, if prepared, consolidating) statements
of income, cash flow and stockholders' equity of Parent and each
Credit Party for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case in comparative form
the corresponding figures for the corresponding Fiscal Quarter of
the previous Fiscal Year and the period from the beginning of
such prior Fiscal Year through such corresponding Fiscal Quarter,
all in reasonable detail and certified by the chief financial
officer of Borrowers that they fairly present, in all material
respects, the financial condition of Parent and the Credit
Parties as at the dates indicated and the results of their
operations and their cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end
adjustments, and (b) if prepared, a narrative report describing
the operations of Parent and the Credit Parties in the form
prepared for presentation to senior management for such Fiscal
Quarter and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter;
(iii) Year-End Financials: as soon as available and in any event
within 100 days after the end of each Fiscal Year, (a) the
audited consolidated (and, if prepared, consolidating) balance
sheet of Parent and each Credit Party as at the end of such
Fiscal Year and the related consolidated (and, if prepared,
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consolidating) statements of income, stockholders' equity and
cash flows of Parent and each Credit Party for such Fiscal Year,
setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year, all in reasonable detail
and certified by the chief financial officer of Borrowers that
they fairly present, in all material respects, the financial
condition of Parent and the Credit Parties as at the dates
indicated and the results of their operations and their cash
flows for the periods indicated, (b) if prepared, a narrative
report describing the operations of Parent and the Credit Parties
in the form prepared for presentation to senior management for
such Fiscal Year, and (c) in the case of such consolidated
financial statements, a report thereon of Arthur Andersen LLP or
other independent certified public accountants of recognized
national standing selected by Borrowers and satisfactory to
Administrative Agent, which report shall be unqualified, shall
not include any negative statements or reservations about the
ability of Parent and the Credit Parties to continue as a going
concern, and shall state that such consolidated financial
statements fairly present, in all material respects, the
consolidated financial position of Parent and the Credit Parties
as at the dates indicated and the results of their operations and
their cash flows for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such
consolidated financial statements has been made in accordance
with generally accepted auditing standards;
(iv) Officers' and Compliance Certificates: together with each
delivery of financial statements of the Credit Parties pursuant
to subdivisions (ii) and (iii) above, (a) an Officer's
Certificate of Borrowers stating that the signers have reviewed
the terms of this Agreement and have made, or caused to be made
under their supervision, a review in reasonable detail of the
transactions and condition of the Credit Parties during the
accounting period covered by such financial statements and that
such review has not disclosed the existence during or at the end
of such accounting period, and that the signers do not have
knowledge of the existence as at the date of such Officer's
Certificate, of any condition or event that constitutes an Event
of Default or Potential Event of Default, or, if any such
condition or event existed or exists, specifying the nature and
period of existence thereof and what action Borrowers have taken,
are taking and propose to take with respect thereto; (b) a
Compliance Certificate; and (c) a report setting forth in
comparative form for such financial statements the corresponding
figures for such reported fiscal periods from the consolidated
plan and financial forecasts delivered pursuant to subsection
5.1(iii) for such fiscal periods;
(v) Reconciliation Statements: if, as a result of any change in
accounting principles and policies from those used in the
preparation of the audited financial statements referred to in
subsection 4.3, the consolidated financial statements of the
Credit Parties delivered pursuant to subdivisions (ii), (iii) or
(ix) of this subsection 5.1 will differ in any material respect
from the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change in
accounting principles and policies been made and the net effect
of
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such change is to create or avoid an Event of Default that would
not otherwise have been created or avoided, then (a) together
with the first delivery of financial statements pursuant to
subdivision (ii), (iii) or (ix) of this subsection 5.1 following
such change, consolidated financial statements of the Credit
Parties for (y) the current Fiscal Year to the effective date of
such change and (z) the two full Fiscal Years immediately
preceding the Fiscal Year in which such change is made, in each
case prepared on a pro forma basis as if such change had been in
effect during such periods, and (b) together with each delivery
of financial statements pursuant to subdivision (ii), (iii) or
(ix) of this subsection 5.1 following such change, a written
statement of the chief accounting officer or chief financial
officer of Borrowers setting forth the differences (including
without limitation any differences that would affect any
calculations relating to the financial covenants set forth in
subsection 6.6) which would have resulted if such financial
statements had been prepared without giving effect to such
change;
(vi) Accountants' Certification: together with each delivery of
consolidated financial statements of the Credit Parties pursuant
to subdivision (iii) above, a written statement by the
independent certified public accountants giving the report
thereon (a) stating that their audit examination has included a
review of the terms of this Agreement and the other Loan
Documents as they relate to accounting matters, (b) stating
whether, in connection with their audit examination, any
condition or event that constitutes an Event of Default or
Potential Event of Default has come to their attention and, if
such a condition or event has come to their attention, specifying
the nature and period of existence thereof; provided that such
accountants shall not be liable by reason of any failure to
obtain knowledge of any such Event of Default or Potential Event
of Default that would not be disclosed in the course of their
audit examination, and (c) stating that based on their audit
examination nothing has come to their attention that causes them
to believe either or both that the information contained in the
certificates delivered therewith pursuant to subdivision (iv)
above is not correct or that the matters set forth in the
Compliance Certificates delivered therewith pursuant to clause
(b) of subdivision (iv) above for the applicable Fiscal Year are
not stated in accordance with the terms of this Agreement;
(vii) Acquisition Financials: (A) as soon as available and in any
event within 90 days after the liquidation audit date for
Premier, the audited balance sheet of Premier dated as of the
liquidation audit date; and (B) as soon as available and in any
event within 90 days after the liquidation audit date for NCP6,
the audited balance sheet of NCP6 dated as of the liquidation
audit date.
(viii) Accountants' Reports: promptly upon receipt thereof
(unless restricted by applicable professional standards), copies
of all reports submitted to Borrowers by independent certified
public accountants in connection with each annual, interim or
special audit of the financial statements of the Credit Parties
made by such accountants, including, without limitation, any
comment letter submitted by such accountants to management in
connection with their annual audit;
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(ix) SEC Filings and Press Releases: if applicable, promptly upon
their becoming available, copies of (a) all financial statements,
reports, notices and proxy statements sent or made available
generally by Borrowers to their security holders or by any
Subsidiary of Borrowers to their security holders other than
Parent, Borrowers or another Subsidiary of Borrowers, (b) all
regular and periodic reports and all registration statements
(other than on Form S-8 or a similar form) and prospectuses, if
any, filed by any Credit Party, Parent or NTC with any securities
exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority within 7 days of
such filing, and (c) all press releases and other statements made
available generally by any Credit Party to the public concerning
material developments in the business of the Credit Parties;
(x) Events of Default, etc.: promptly upon any officer of any
Borrower obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender has given any notice (other than
to Administrative Agent) or taken any other action with respect
to a claimed Event of Default or Potential Event of Default, (b)
that any Person has given any notice to any Credit Party or taken
any other action with respect to a claimed default or event or
condition of the type referred to in subsection 7.2, (c) of any
condition or event that would be required to be disclosed in a
current report filed by Borrowers with the Securities and
Exchange Commission on Form 8-K (Items 1, 2, 4 and 6 of such Form
as in effect on the date hereof) if Borrowers were required to
file such reports under the Exchange Act, or (d) of the
occurrence of any event or change that has caused or evidences,
either in any case or in the aggregate, a Material Adverse
Effect, an Officer's Certificate specifying the nature and period
of existence of such condition, event or change, or specifying
the notice given or action taken by any such Person and the
nature of such claimed Event of Default, Potential Event of
Default, default, event or condition, and what action Borrowers
have taken, are taking and propose to take with respect thereto;
(xi) Litigation or Other Proceedings: (a) promptly upon any
officer of any Borrower obtaining knowledge of (X) the
institution of, or non-frivolous threat of, any action, suit,
proceeding (whether administrative, judicial or otherwise),
governmental investigation or arbitration against or affecting
any Credit Party or any property of any Credit Party
(collectively, "PROCEEDINGS") not previously disclosed in writing
by Borrowers to Lenders or (Y) any material development in any
Proceeding that, in any case:
(1) if adversely determined, has a reasonable likelihood
of giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result of,
the transactions contemplated hereby;
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written notice thereof together with such other information as may be
reasonably available to Borrowers to enable Lenders and their counsel to
evaluate such matters; and (b) within 45 days after the end of each
Fiscal Quarter, a schedule of all Proceedings involving an alleged
liability of, or claims against or affecting, the Credit Parties equal
to or greater than $500,000, and promptly after request by
Administrative Agent such other information as may be reasonably
requested by Administrative Agent to enable Administrative Agent and its
counsel to evaluate any of such Proceedings;
(xii) ERISA Events: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event, a
written notice specifying the nature thereof, what action any
Borrower or any of its ERISA Affiliates has taken, is taking or
proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto;
(xiii) ERISA Notices: with reasonable promptness, copies of (a)
each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) filed by any Borrower or any of its ERISA
Affiliates with the Internal Revenue Service with respect to each
Pension Plan; (b) all notices received by any Borrower or any of
its ERISA Affiliates from a Multiemployer Plan sponsor concerning
an ERISA Event; and (c) such other documents or governmental
reports or filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;
(xiv) Financial Plans: as soon as practicable and in any event no
later than 30 days after the beginning of each Fiscal Year,
consolidated and consolidating subscriber, Operating Cash Flow
and Capital Expenditure budgets for such Fiscal Year;
(xv) Environmental Matters: as soon as practicable following
receipt thereof, copies of (i) all environmental audits and
reports, whether prepared by personnel of any Credit Party or by
independent consultants, with respect to any environmental
matters which could result in a Material Adverse Effect and (ii)
any order, notice, claim or proceeding received by, or brought
against, any Credit Party or with respect to any of the Real
Property under any Environmental Law.
(xvi) Franchise Matters: as soon as practicable following receipt
thereof, copies of any notice of threatened or pending revocation
of any Franchise or any hearing for such purpose.
(xvii) Other Information: with reasonable promptness, such other
information and data with respect to any Credit Party as from
time to time may be reasonably requested by any Lender.
5.2 LIMITED LIABILITY COMPANY AND/OR CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 6.7, each Credit Party shall
at all times preserve and keep in full force and effect its limited liability
company or corporate existence, as the case may be, and all rights and
franchises material to its business.
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5.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Each Credit Party shall 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 income, businesses or franchises before any penalty
accrues thereon, and all claims (including, without limitation, claims for
labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided that no such charge or claim need be paid if being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and if such reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made therefor.
B. No Credit Party shall file or consent to the filing of any
consolidated income tax return with any Person (other than another Credit Party
or NTC or NMG pursuant to the NCV LLC Agreement). No Credit Party shall agree to
any allocation of any loss (including, without limitation, any net operating
loss) of such Credit Party for tax purposes to any other Person including,
without limitation, NMG whether pursuant to the NCV LLC Agreement or otherwise,
if such allocation shall cause any Credit Party to have any income tax payable
at any time during the term of this Agreement it would not have if such
allocation had not occurred.
5.4 MAINTENANCE OF PROPERTIES; INSURANCE.
Each Credit Party shall maintain or cause to be maintained in
good repair, working order and condition, ordinary wear and tear excepted, all
material properties used or useful in the business of such Credit Party
(including, without limitation, Intellectual Property) and from time to time
shall make or cause to be made all appropriate repairs, renewals and
replacements thereof. Each Credit Party shall maintain or cause to be
maintained, with financially sound and reputable insurers, insurance with
respect to its properties and business against loss or damage of the kinds
customarily carried or maintained under similar circumstances by corporations of
established reputation engaged in similar businesses. Each casualty insurance
policy shall name Administrative Agent for the benefit of Lenders as the loss
payee thereunder for amounts in excess of $100,000 and each liability and
business interruption insurance policy shall name Administrative Agent as
additional insured thereunder. Each insurance policy shall provide for at least
30 days prior written notice to Administrative Agent of any modification or
cancellation of such policy.
5.5 INSPECTION.
Each Credit Party shall permit any authorized representatives
designated by any Lender to visit and inspect any of the properties of such
Credit Party, including its and their financial and accounting records, and to
make copies and take extracts therefrom, and to discuss its and their affairs,
finances and accounts with its and their officers and independent public
accountants (provided that such Credit Party may, if it so chooses, be present
at or participate in any such discussion), all upon reasonable notice and at
such reasonable times during normal business hours and as often as may be
reasonably requested. Such visits and inspections shall not unreasonably
interfere with the business of any Credit Party.
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5.6 COMPLIANCE WITH LAWS, ETC.
Each Credit Party shall comply with the requirements of all
applicable laws, rules, regulations and orders of any governmental authority,
noncompliance with which could reasonably be expected to cause a Material
Adverse Effect.
5.7 ENVIRONMENTAL COMPLIANCE AND INSPECTION.
A. Each Credit Party shall exercise all due diligence in order to
comply and cause (i) all tenants under any leases or occupancy agreements
affecting any portion of the Real Property and (ii) all other Persons on or
occupying such property, to comply with all Environmental Laws in all material
respects.
B. Each Credit Party agrees that Administrative Agent may, from
time to time and in its sole and absolute discretion, retain, at such Credit
Party's expense, an independent professional consultant to review any report
relating to Hazardous Waste prepared by or for such Credit Party and to conduct
its own investigation of any Real Property, and such Credit Party agrees to use
reasonable efforts to obtain permission for Administrative Agent's professional
consultant to conduct its own investigation of any Real Property previously
owned or leased by such Credit Party. Each Credit Party hereby grants to
Administrative Agent and its agents, employees, consultants and contractors the
right to enter into or on to the Real Property to perform such tests on such
property as are reasonably necessary to conduct such a review and/or
investigation. Any such investigation of any Real Property shall be conducted,
unless otherwise agreed to by such Credit Party and Administrative Agent, during
normal business hours and, to the extent reasonably practicable, shall be
conducted so as not to interfere with the ongoing operations at any such
Facility or to cause any damage or loss to any property at such Facility. Each
Credit Party and Administrative Agent hereby acknowledge and agree that any
report of any investigation conducted at the request of Administrative Agent
pursuant to this subsection 5.7B will be obtained and shall be used by
Administrative Agent and Lenders for the purposes of Lenders' internal credit
decisions, to monitor and police the Loans and to protect Lenders' security
interests, if any, created by the Loan Documents. Administrative Agent agrees to
deliver a copy of any such report to the applicable Credit Party with the
understanding that such Credit Party acknowledges and agrees that (i) it will
indemnify and hold harmless Administrative Agent and each Lender from any costs,
losses or liabilities relating to such Credit Party's use of or reliance on such
report, (ii) neither Administrative Agent nor any Lender makes any
representation or warranty with respect to such report, and (iii) by delivering
such report to such Credit Party, neither Administrative Agent nor any Lender is
requiring or recommending the implementation of any suggestions or
recommendations contained in such report.
5.8 INTEREST RATE PROTECTION.
At all times after the date which is 60 days after the Second
Restatement Effective Date, Borrowers shall maintain in effect one or more
Interest Rate Agreements with respect to the Loans, in an aggregate notional
principal amount of not less than 50% of the amount of Loans, such Interest Rate
Agreements to be in form and substance reasonably satisfactory to Administrative
Agent and with an initial weighted average duration of at least 24 months.
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5.9 MORTGAGES; MORTGAGE POLICIES; ETC.
No later than 30 days after the Second Restatement Effective Date,
Administrative Agent shall have received from Borrowers:
A. Mortgages. Fully executed and notarized Mortgages for the Real
Property acquired pursuant to the Premier Acquisition and serving as a headend
for at least 1,000 subscribers, and/or amendments or supplements to the
Mortgages executed no later than 30 days after the Second Restatement Effective
Date (in each case, to the extent such amendment or supplement is required
pursuant to applicable law to continue the effectiveness of such Mortgage with
respect to this Agreement) in proper form for recording in all appropriate
places in all applicable jurisdictions, encumbering the Real Property (each a
"PREMIER MORTGAGED PROPERTY" and, collectively, the "PREMIER MORTGAGED
PROPERTIES");
B. Landlord Consent Letters; Recorded Leasehold Interests. In the
case of each leasehold Real Property acquired pursuant to the Premier
Acquisition, (a) a landlord Consent Letter with respect thereto and (b) evidence
that such leasehold Real Property is a recorded leasehold interest;
C. Title Insurance. (a) ALTA mortgagee title insurance policies
or unconditional commitments therefor or updates thereto in the case of
insurance policies or unconditional commitments therefor issued no later than 30
days after the Second Restatement Effective Date (the "PREMIER MORTGAGE
POLICIES") issued by a title company satisfactory to Administrative Agent with
respect to the Premier Mortgaged Properties in amounts not less than the
respective amounts designated therein with respect to any particular Premier
Mortgaged Properties, insuring fee simple title to, or a valid leasehold
interest in, each such Premier Mortgaged Property vested in Borrowers and
assuring Administrative Agent that the applicable Mortgages create valid and
enforceable first priority mortgage Liens on the respective Premier Mortgaged
Properties encumbered thereby, subject only to a standard survey exception,
which Premier Mortgage Policies (1) shall include an endorsement for mechanics'
liens, for future advances under this Agreement and for any other matters
reasonably requested by Administrative Agent and (2) shall provide for
affirmative insurance and such reinsurance as Administrative Agent may
reasonably request, all of the foregoing in form and substance reasonably
satisfactory to Administrative Agent; and (b) evidence satisfactory to
Administrative Agent that such Loan Party has (i) delivered to the title company
all certificates and affidavits required by the title company in connection with
the issuance of the Premier Mortgage Policies and (ii) paid to the title company
or to the appropriate governmental authorities all expenses and premiums of the
title company in connection with the issuance of the Premier Mortgage Policies
and all recording and stamp taxes (including mortgage recording and intangible
taxes) payable in connection with recording the Mortgages in the appropriate
real estate records;
D. Title Reports. With respect to each Premier Mortgaged
Property, a title report issued by the title company with respect thereto, dated
no later than 30 days after the Second Restatement Effective Date and
satisfactory in form and substance to Administrative Agent;
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E. Copies of Documents Relating to Title Exceptions. Copies of
all recorded documents listed as exceptions to title or otherwise referred to in
the Premier Mortgage Policies or in the title reports delivered pursuant to
subsection 5.9D; and
F. Matters Relating to Flood Hazard Properties. (a) Evidence to
the extent required by law, which may be in the form of a letter from an
insurance broker or a municipal engineer, as to whether (1) any Premier
Mortgaged Property is a Flood Hazard Property and (2) the community in which any
such Flood Hazard Property is located is participating in the National Flood
Insurance Program, (b) if there are any such Flood Hazard Properties, Borrowers'
written acknowledgement of receipt of written notification from Administrative
Agent (1) as to the existence of each such Flood Hazard Property and (2) as to
whether the community in which each such Flood Hazard Property is located is
participating in the National Flood Insurance Program, and (c) in the event any
such Flood Hazard Property is located in a community that participates in the
National Flood Insurance Program, evidence that Borrowers have obtained flood
insurance in respect of such Flood Hazard Property to the extent required under
the applicable regulations of the Board of Governors of the Federal Reserve
System.
5.10 FURTHER ASSURANCES.
At any time or from time to time upon the request of
Administrative Agent, each Credit Party shall, at its expense, promptly execute,
acknowledge and deliver such further documents and do such other acts and things
as Administrative Agent may reasonably request in order to effect fully the
purposes of the Loan Documents and to provide for payment of the Obligations in
accordance with the terms of this Agreement, the Notes and the other Loan
Documents. In furtherance and not in limitation of the foregoing, each Credit
Party will take such actions as Administrative Agent may reasonably request from
time to time (including, without limitation, the execution and delivery of
guaranties, security agreements, pledge agreements, mortgages, deeds of trust,
stock powers, financing statements and other documents, the filing or recording
of any of the foregoing, title insurance with respect to any of the foregoing
that relates to an interest in real property, and the delivery of stock
certificates and other collateral with respect to which perfection is obtained
by possession) to ensure that the Obligations are guarantied by any Subsidiaries
of any Borrower created after the Second Restatement Effective Date and are
secured by substantially all of the assets of the Credit Parties.
SECTION 6.
BORROWERS NEGATIVE COVENANTS
Each Borrower covenants and agrees that, so long as the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations, unless Requisite Lenders shall otherwise give
prior written consent, Borrowers shall perform, and shall cause each other
Credit Party, as applicable, to perform, all covenants in this Section 6.
6.1 INDEBTEDNESS.
The Credit Parties shall not directly or indirectly, create,
incur, assume or guaranty, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
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(i) the Credit Parties may become and remain liable with respect
to the Obligations;
(ii) the Credit Parties may become and remain liable with respect
to Contingent Obligations permitted by subsection 6.4 and, upon
any matured obligations actually arising pursuant thereto, the
Indebtedness corresponding to the Contingent Obligations so
extinguished; and
(iii) the Credit Parties may become and remain liable with
respect to Indebtedness in respect of Capital Leases and secured
purchase money Indebtedness in a combined aggregate amount not to
exceed $500,000 at any time (provided that any such purchase
money Indebtedness shall be secured only by the assets purchased
with the proceeds thereof and under the terms of such
Indebtedness and provided further that at least 80% of the
purchase price of such assets was provided by the proceeds of
such purchase money Indebtedness).
6.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. The Credit Parties shall not directly or
indirectly, create, incur, assume or permit to exist any Lien on or with respect
to any property or asset of any kind (including any document or instrument in
respect of goods or accounts receivable) of any Credit Party, whether now owned
or hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any State or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens securing Capital Leases permitted under subsection
6.1; and
(iv) purchase-money Liens securing purchase money Indebtedness
permitted pursuant to subsection 6.1; provided that (a) the
purchase of the asset subject to such Lien is permitted under the
terms of subsection 6.8 and (b) such Liens encumber only the
asset so purchased.
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If any Credit Party shall
create or assume any Lien upon any of its properties or assets, whether now
owned or hereafter acquired, other than Permitted Liens, it shall make or cause
to be made effective a provision whereby the Obligations will be secured by such
Lien equally and ratably with any and all other Indebtedness secured thereby as
long as any such Indebtedness shall be so secured; provided that,
notwithstanding the foregoing, this covenant shall not be construed as a consent
by Requisite Lenders to the creation or assumption of any Lien other than a
Permitted Lien.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to an Asset Sale, no Credit Party
shall enter into any agreement
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prohibiting the creation or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO CREDIT PARTIES
OR OTHER SUBSIDIARIES. Except as provided herein, the Credit Parties will not
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Credit Party to (i)
pay dividends or make any other distributions on any of such Credit Party's
capital stock owned by any other Credit Party, (ii) repay or prepay any
Indebtedness owed by such Credit Party to any other Credit Party, (iii) make
loans or advances to any other Credit Party, or (iv) transfer any of its
property or assets to any other Credit Party.
6.3 INVESTMENTS; JOINT VENTURES.
The Credit Parties shall not, directly or indirectly, make or own
any Investment in any Person, including any Joint Venture, except:
(i) The Credit Parties may make and own Investments in Cash
Equivalents;
(ii) The Credit Parties may make Capital Expenditures permitted
by subsection 6.8; and
(iii) The Credit Parties may make Investments permitted pursuant
to subsection 6.7.
6.4 CONTINGENT OBLIGATIONS.
The Credit Parties shall not, directly or indirectly, create or
become or remain liable with respect to any Contingent Obligation, except:
(i) The Credit Parties may become and remain liable with respect
to Contingent Obligations incurred pursuant to the Loan Documents
or the Related Documents;
(ii) Borrowers may become and remain liable with respect to
Contingent Obligations under Interest Rate Agreements required
under subsection 5.8;
(iii) The Credit Parties may become and remain liable with
respect to Contingent Obligations with respect to transactions
permitted pursuant to subsection 6.7; and
(iv) The Credit Parties may become and remain liable with respect
to Contingent Obligations incurred in the ordinary course of
business with respect to pole attachments and franchise bonds,
deposits and indemnities, and similar assurances required for the
operation of the Cable Television Systems, in an aggregate amount
not in excess of $1,000,000 at any time.
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6.5 RESTRICTED JUNIOR PAYMENTS.
The Credit Parties shall not, directly or indirectly, declare,
order, pay, make or set apart any sum for any Restricted Junior Payments,
except:
(i) so long as no Event of Default or Potential Event of Default
has occurred and is continuing, or would result therefrom,
Borrowers may pay Management Fees quarterly in arrears; provided,
that (x) the aggregate amount of such payments by the Credit
Parties during any Fiscal Quarter shall not exceed 5% of
Borrowers' consolidated total revenues for the previous Fiscal
Quarter, (y) Lenders shall have received the Compliance
Certificate and related financial information and reports
required for such previous Fiscal Quarter (or previous Fiscal
Year, in the case of any Fiscal Quarter ending on any December
31) pursuant to subsection 5.1.; and (z) Borrowers shall have
demonstrated pro forma compliance with all financial covenants as
set forth in subsection 6.6 for such previous Fiscal Quarter, in
form and substance satisfactory to Administrative Agent;
(ii) so long as no Event of Default or Potential Event of Default
shall have occurred and be continuing or would result therefrom,
Borrowers may make one payment during each Fiscal Year referred
to below to Parent to service debt incurred by Parent under the
Premier Parent Note on the date Parent is required to make such
corresponding payment under the Premier Parent Note; provided
that (x) both before and after giving effect to either such
payment the Leverage Ratio (calculated on a pro forma basis to
give effect to such payment) does not exceed the correlative
ratio indicated below, (y) Lenders shall have received an
Officer's Certificate dated as of the date of such payment,
stating that Borrowers are in compliance with the financial
covenants set forth in this subsection 6.5(ii) with the Leverage
Ratio calculated based on the Operating Cash Flow for the most
recently ended Fiscal Quarter and (z) the total payments in any
Fiscal Year shall not exceed the correlative amounts indicated
below:
------------------------------------------------------------------------------
FISCAL YEAR RATIO TOTAL PAYMENT
------------------------------------------------------------------------------
2002 5.10:1.00 $1,045,250
------------------------------------------------------------------------------
2003 4.75:1.00 $985,125
------------------------------------------------------------------------------
(iii) so long as no Event of Default or Potential Event of
Default shall have occurred and be continuing or would result
therefrom, Borrowers may make one payment during each Fiscal Year
referred to below to Parent to service debt incurred by Parent
under the NCP6 Parent Note on the date Parent is required to make
such corresponding payment under the NCP6 Parent Note; provided
that (x) both before and after giving effect to either such
payment the Leverage Ratio (calculated on a pro forma basis to
give effect to such payment) does not exceed the correlative
ratio indicated below, (y) Lenders shall have received an
Officer's Certificate dated as of the date of such payment,
stating that Borrowers are in
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compliance with the financial covenants set forth in this
subsection 6.5(ii) with the Leverage Ratio calculated based on
the Operating Cash Flow for the most recently ended Fiscal
Quarter and (z) the total payments in any Fiscal Year shall not
exceed the correlative amounts indicated below:
------------------------------------------------------------------------------
FISCAL YEAR RATIO TOTAL PAYMENT
------------------------------------------------------------------------------
2002 5.10:1.00 $2,376,667
------------------------------------------------------------------------------
2003 4.75:1.00 $2,223,333
------------------------------------------------------------------------------
2004 4.00:1.00 $2,070,000
------------------------------------------------------------------------------
6.6 FINANCIAL COVENANTS.
A. MINIMUM INTEREST COVERAGE RATIO. Borrowers shall not permit
the ratio of (i) Operating Cash Flow for each Fiscal Quarter to (ii) Interest
Expense for such Fiscal Quarter, for any Fiscal Quarter ending during any of the
periods set forth below to be less than the correlative ratio indicated:
------------------------------------------------------------
PERIOD RATIO
------------------------------------------------------------
Second Restatement Effective Date 1.75:1.00
through December 31, 2001
------------------------------------------------------------
January 1, 2002 through December 31, 2.00:1.00
2002
------------------------------------------------------------
January 1, 2003 through December 31, 2.25:1.00
2003
------------------------------------------------------------
January 1, 2004 and thereafter 2.50:1.00
------------------------------------------------------------
B. MINIMUM FIXED CHARGE COVERAGE RATIO. Borrowers shall not
permit the ratio of (i) Operating Cash Flow for the four consecutive Fiscal
Quarter period ending on the last day of each Fiscal Quarter (the "RELEVANT
PERIOD") to (ii) Fixed Charges for the Relevant Period, for any Fiscal Quarter
ending during any of the periods set forth below to be less than the correlative
ratio indicated:
------------------------------------------------------------
PERIOD RATIO
------------------------------------------------------------
March 31, 2003 through December 31, 1.05:1.00
2003
------------------------------------------------------------
January 1, 2004 and thereafter 1.10:1.00
------------------------------------------------------------
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C. MAXIMUM LEVERAGE RATIO. Borrowers shall not permit the ratio
of (i) Total Debt to (ii) Annualized Operating Cash Flow (the "LEVERAGE RATIO"),
in each case as of the last day of any Fiscal Quarter ending during any of the
periods set forth below to exceed the correlative ratio indicated:
- --------------------------------------------------------
PERIOD RATIO
- --------------------------------------------------------
Second Restatement Effective Date 5.50:1.00
through December 30, 2002
- --------------------------------------------------------
December 31, 2002 through 5.25:1.00
December 30, 2003
- --------------------------------------------------------
December 31, 2003 through 5.00:1.00
June 29, 2004
- --------------------------------------------------------
June 30, 2004 through 4.50:1.00
December 30, 2004
- --------------------------------------------------------
December 31, 2004 through 4.25:1.00
June 29, 2005
- --------------------------------------------------------
June 30, 2005 through 4.00:1.00
December 30, 2005
- --------------------------------------------------------
December 31, 2005 through 3.75:1.00
June 29, 2006
- --------------------------------------------------------
June 30, 2006 through 3.50:1.00
December 30, 2007
- --------------------------------------------------------
December 31, 2007 and Thereafter 3.00:1.00
- --------------------------------------------------------
D. PRO FORMA DEBT SERVICE COVERAGE. Borrowers shall not permit
the ratio of (i) Annualized Operating Cash Flow for the most recently concluded
Fiscal Quarter to (ii) Pro Forma Debt Service for the next succeeding twelve
consecutive month period, at any time to be less than 1.25:1.00.
6.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS.
The Credit Parties shall not alter the corporate, capital or
legal structure of the Credit Parties or enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve themselves (or suffer any
liquidation or dissolution), or convey, sell, lease, sub-lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or any
part of their respective businesses, properties or fixed assets, whether now
owned or hereafter acquired, or acquire by purchase or otherwise all or
substantially all the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person or any division or line of
business of any Person, except:
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(i) Borrowers may consummate (y) the Premier Acquisition upon
satisfaction of the conditions set forth in subsections 3.1 and
3.3, and (z) the NCP6 Acquisition on or prior to September 30,
2001 (1) in the event that the First Reserve Amount and the
Second Reserve Amount have become available in accordance with
subsection 2.1A(iii), to consummate such Acquisition and the
transactions contemplated thereby, and (2) upon satisfaction of
the conditions set forth in subsection 3.2 and 3.3;
(ii) the Credit Parties may make Capital Expenditures permitted
under subsection 6.8;
(iii) the Credit Parties may make Asset Sales; provided that (x)
the consideration received for such assets shall be Cash (subject
to customary hold-backs for working capital and indemnification)
in an amount at least equal to the fair market value thereof; (y)
the Net Cash Proceeds of such Asset Sales shall be applied as
required by subsection 2.4B(iii)(a); and (z) Borrowers shall
demonstrate to the satisfaction of Requisite Lenders current and
pro forma compliance with each of the covenants set forth in
subsection 6.6 after giving effect to such Asset Sale; provided
further that the assets and related operations sold (i) in any
Fiscal Year shall not account for more than 15% of Operating Cash
Flow for such Fiscal Year and (ii) from and after the Second
Restatement Effective Date shall not account for more than 25% of
Operating Cash Flow for Fiscal Year 2001.
(iv) with the prior written consent of Requisite Lenders, and as
long as no Event of Default or Potential Event of Default has
occurred and is continuing or would result therefrom, the Credit
Parties may acquire assets (including cable systems) for not more
than their fair market value; provided that prior to any such
acquisition Borrowers shall have demonstrated, in form and
substance satisfactory to Requisite Lenders, current and pro
forma compliance with the terms of this Agreement after giving
effect to such acquisition;
(v) Borrowers may create or otherwise acquire an interest in a
Subsidiary with the prior written consent of Requisite Lenders;
provided (i) such Subsidiary is directly or indirectly
wholly-owned by a Borrower and (ii) such Subsidiary is in
compliance with the Agreement, including, without limitation,
subsection 5.9; and
(vi) any Subsidiary of a Borrower, once created or acquired, may
be merged with or into Company or any wholly-owned Subsidiary of
Company, or be liquidated, wound up or dissolved, or all or any
substantial part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in
one transaction or a series of transactions, to Company or any
wholly-owned Subsidiary of Company; provided that, in the case of
such a merger, Company or such wholly-owned Subsidiary shall be
the continuing or surviving corporation.
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6.8 CAPITAL EXPENDITURES.
The Credit Parties shall not make or incur Capital Expenditures
in any Fiscal Year indicated below, in an aggregate amount in excess of the
corresponding amount set forth below opposite such Fiscal Year (provided that
the stated Capital Expenditure amounts set forth below which are not expended in
any Fiscal Year may be carried forward and expended in the immediately
succeeding Fiscal Year):
- -------------------------------------------------------------------------
MAXIMUM
FISCAL YEAR CAPITAL EXPENDITURES
- -------------------------------------------------------------------------
2001 $7,200,000
- -------------------------------------------------------------------------
2002 $5,200,000
- -------------------------------------------------------------------------
2003 $4,500,000
- -------------------------------------------------------------------------
; provided, however, that upon the consummation of the NCP6 Acquisition in
accordance with this Agreement, the foregoing table shall be deleted in its
entirety and superseded by the following table below:
- -------------------------------------------------------------------------
MAXIMUM
FISCAL YEAR CAPITAL EXPENDITURES
- -------------------------------------------------------------------------
2001 $7,500,000
- -------------------------------------------------------------------------
2002 $7,000,000
- -------------------------------------------------------------------------
2003 $6,000,000
- -------------------------------------------------------------------------
6.9 SALES AND LEASE-BACKS.
The Credit Parties shall not, directly or indirectly, become or
remain liable as lessee or as a guarantor or other surety with respect to any
lease, whether an Operating Lease or a Capital Lease, of any property (whether
real, personal or mixed), whether now owned or hereafter acquired, (i) which any
Credit Party has sold or transferred or is to sell or transfer to any other
Person (other than a Credit Party) or (ii) which any Credit Party intends to use
for substantially the same purpose as any other property which has been or is to
be sold or transferred by such Credit Party to any Person (other than a Credit
Party) in connection with such lease.
6.10 SALE OR DISCOUNT OF RECEIVABLES.
The Credit Parties shall not, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face value thereof,
any of its notes or accounts receivable; provided that the foregoing shall not
apply to any customary charges paid with respect to the settlement of accounts
with respect to consumer credit cards utilized by any subscribers of
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service from the Cable Television Systems in connection with the purchase of
goods and/or services from any Credit Party or the settlement of accounts
(including the assigning of accounts to collection agencies) in the ordinary
course of business consistent with past practice.
6.11 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
The Credit Parties shall not, directly or indirectly, enter into
or permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any holder of 5% or more of any class of equity Securities of any Credit Party
or with any Affiliate of such Credit Party or of any such holder, on terms that
are less favorable to such Credit Party, as the case may be, than those that
might be obtained at the time from Persons who are not such a holder or
Affiliate; provided that the foregoing restriction shall not apply to (i) the
Management Agreements or any Management Fees payable pursuant thereto, (ii) any
transaction between a Borrower and any of its wholly-owned Subsidiaries or
between any of its wholly-owned Subsidiaries or (iii) reasonable and customary
fees paid to members of the Boards of Directors of the Credit Parties.
6.12 DISPOSAL OF SUBSIDIARY STOCK.
Except for any sale by a Borrower of 100% of the capital stock or
other equity Securities of any of its Subsidiaries in compliance with the
provisions of subsection 6.7, no Credit Party shall:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or other
equity Securities of any of its Subsidiaries, except to
Administrative Agent pursuant to the terms of the Collateral
Documents or (ii) to qualify directors if required by applicable
law; or
(ii) permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any
shares of capital stock or other equity Securities of any of its
Subsidiaries (including such Subsidiary), except to a Credit
Party, or to qualify directors if required by applicable law.
6.13 CONDUCT OF BUSINESS.
From and after the Second Restatement Effective Date, no Credit
Party shall engage in any business other than (i) the businesses engaged in by
such Credit Party on the Second Restatement Effective Date and similar or
related businesses and (ii) such other lines of business as may be consented to
by Requisite Lenders.
6.14 AMENDMENTS OR WAIVERS OF RELATED DOCUMENTS AND CHARTER DOCUMENTS.
A. NO AMENDMENT OR WAIVER OF RELATED DOCUMENTS. No Credit Party
will agree to any amendment to, or waive any of its rights under, any of the
Related Documents (other than non-material amendments or waivers which
individually, or together with all other amendments, waivers or changes made,
would not be adverse to any Credit Party, Administrative Agent or any Lender),
without obtaining the written consent of Administrative Agent and Requisite
Lenders to such amendment or waiver.
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B. CHARTER DOCUMENTS. No Credit Party will agree to any material
amendment to, or waive any of its material rights under, its certificates or
articles of incorporation, bylaws or other documents relating to its capital
stock (other than non-material amendments or waivers which individually, or
together with all other amendments, waivers or changes made, would not be
adverse to any Credit Party, Administrative Agent or any Lender) without, in
each case, obtaining the written consent of Administrative Agent and Requisite
Lenders to such amendment or waiver.
6.15 FISCAL YEAR.
Borrowers shall not change their Fiscal Year-end from December
31.
SECTION 7.
EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT") shall
occur:
7.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Borrowers to pay any installment of principal of any
Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; or failure by
Borrowers to pay any interest on any Loan or any other amount due under this
Agreement within five days after the date due; or
7.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of any Credit Party to pay when due any principal of
or interest on one or more items of Indebtedness (other than Indebtedness
referred to in subsection 7.1) or Contingent Obligations in an individual
principal amount of $250,000 or more or with an aggregate principal amount of
$250,000 or more, in each case beyond the end of any grace period provided
therefor; or (ii) breach or default by any Credit Party with respect to any
other material term of (a) one or more items of Indebtedness or Contingent
Obligations in the individual or aggregate principal amounts referred to in
clause (i) above or (b) any loan agreement, mortgage, indenture or other
agreement relating to such item(s) of Indebtedness or Contingent Obligation(s),
if the effect of such breach or default is to cause, or to permit the holder or
holders of that Indebtedness or Contingent Obligation(s) (or a trustee on behalf
of such holder or holders) to cause, that Indebtedness or Contingent
Obligation(s) to become or be declared due and payable prior to its stated
maturity or the stated maturity of any underlying obligation, as the case may be
(upon the giving or receiving of notice, lapse of time, both, or otherwise); or
7.3 BREACH OF CERTAIN COVENANTS.
Failure of Borrowers to perform or comply with any term or
condition contained in subsection 2.5 or 5.2 or Section 6 of this Agreement; or
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7.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by any Credit Party in any Loan Document or in any statement or certificate
at any time given by such Credit Party in writing pursuant hereto or thereto or
in connection herewith or therewith shall be false in any material respect on
the date as of which made; or
7.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Credit Party or NMG shall default in the performance of or
compliance with any term contained in this Agreement or any of the other Loan
Documents, other than any such term referred to in any other subsection of this
Section 7, and such default shall not have been remedied or waived within 30
days after the earlier of (i) an officer of Borrowers becoming aware of such
default or (ii) receipt by Borrowers of notice from Administrative Agent or any
Lender of such default; or
7.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Parent, NMG or any Credit Party in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against Parent, NMG or any Credit Party under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Parent, NMG or such Credit Party, or
over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Parent, NMG or such Credit Party for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Parent, NMG or such Credit Party, and any such event described in
this clause (ii) shall continue for 60 days unless dismissed, bonded or
discharged; or
7.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Parent, NMG or any Credit Party shall have an order for
relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or Parent, NMG or such Credit Party shall make
any assignment for the benefit of creditors; or (ii) Parent, NMG or any Credit
Party shall be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of Directors
or managing member of Parent, NMG or such Credit Party (or any committee
thereof) shall adopt
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any resolution or otherwise authorize any action to approve any of the actions
referred to in clause (i) above or this clause (ii); or
7.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of $500,000 or
(ii) in the aggregate at any time an amount in excess of $500,000 (in either
case not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
Parent, NMG or any Credit Party or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 60 days (or
in any event later than five days prior to the date of any proposed sale
thereunder); or
7.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Parent,
NMG or any Credit Party decreeing the dissolution or split up of Parent, NMG or
such Credit Party and such order shall remain undischarged or unstayed for a
period in excess of 30 days; or
7.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually or
in the aggregate results in or might reasonably be expected to result in
liability of any Credit Party or any of its ERISA Affiliates in excess of
$100,000 during the term of this Agreement; or there shall exist an amount of
unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), which exceeds $100,000; or
7.11 MATERIAL ADVERSE EFFECT.
Any event or change shall occur that has caused or evidences,
either in any case or in the aggregate, a Material Adverse Effect; or
7.12 CHANGE IN CONTROL.
There shall occur any Change of Control; or
7.13 FAILURE OF SECURITY OR GUARANTY.
Any Collateral Document shall, at any time, cease to be in full
force and effect (other than by reason of a release of Collateral in accordance
with the terms thereof or the satisfaction in full of all Obligations) or shall
be declared null and void, or the validity or enforceability thereof shall be
contested by any party thereto, or the Administrative Agent shall not have or
cease to have a valid and perfected first priority security interest in the
Collateral (subject to Permitted Liens); or
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7.14 FRANCHISES.
(i) Any Credit Party shall lose, fail to keep in force, suffer
the termination, suspension or revocation of or terminate, forfeit or suffer a
material adverse amendment to any Franchise or Franchises, individually or in
the aggregate accounting for 5% or more of Operating Cash Flow during the most
recent Fiscal Year or 10% or more of Operating Cash Flow for Fiscal Year 2001;
(ii) any governmental regulatory authority shall schedule or conduct a hearing
on the renewal of any Franchise or Franchises, individually or in the aggregate
accounting for 5% or more of Operating Cash Flow during the most recent Fiscal
Year or 10% or more of Operating Cash Flow for Fiscal Year 2001, and the
Requisite Lenders shall in good faith believe that the result thereof shall be
the termination, revocation, suspension, or material adverse amendment of such
Franchise; or (iii) any governmental regulatory authority shall commence an
action or proceeding seeking the termination, suspension, revocation or material
adverse amendment of any Franchise or Franchises, individually or in the
aggregate accounting for 5% or more of Operating Cash Flow during the most
recent Fiscal Year or 10% or more of Operating Cash Flow for Fiscal Year 2001,
and the Requisite Lenders shall in good faith believe that the result thereof
shall be the termination, revocation, suspension or material adverse amendment
of such Franchise; or
7.15 PARENT NOTES.
Any default shall occur under any of the Parent Notes.
THEN (i) upon the occurrence of any Event of Default described in subsection 7.6
or 7.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans and (b) all other Obligations shall automatically become immediately due
and payable, without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by Borrowers, and the obligation
of each Lender to make any Loan shall thereupon terminate, and (ii) upon the
occurrence and during the continuation of any other Event of Default,
Administrative Agent shall, upon the written request or with the written consent
of Requisite Lenders, by written notice to Borrowers, declare all or any portion
of the amounts described in clauses (a) and (b) above to be, and the same shall
forthwith become, immediately due and payable, and the obligation of each Lender
to make any Loan shall thereupon terminate.
Notwithstanding anything contained in the preceding paragraph, if
at any time within 60 days after an acceleration of the Loans pursuant to such
paragraph Borrowers shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than as a result of
such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than non-payment of the
principal of and accrued interest on the Loans, in each case which is due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to subsection 9.6, then Requisite Lenders, by written notice to Borrowers, may
at their option rescind and annul such acceleration and its consequences; but
such action shall not affect any subsequent Event of Default or Potential Event
of Default or impair any right consequent thereon. The provisions of this
paragraph are intended merely to bind Lenders to a decision which may be made at
the election of Requisite Lenders and are not
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intended to benefit Borrowers and do not grant Borrowers the right to require
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are met.
SECTION 8.
ADMINISTRATIVE AGENT
8.1 APPOINTMENT.
Bank of Montreal is hereby appointed Administrative Agent
hereunder and under the other Loan Documents (including, without limitation, in
its capacity as "Agent" under any of the Loan Documents) and each Lender hereby
authorizes Administrative Agent to act as its agent in accordance with the terms
of this Agreement and the other Loan Documents. Administrative Agent agrees to
act upon the express conditions contained in this Agreement and the other Loan
Documents, as applicable. The provisions of this Section 8 are solely for the
benefit of Administrative Agent and Lenders and no Credit Party shall have any
rights as a third party beneficiary of any of the provisions thereof. In
performing its functions and duties under this Agreement, Administrative Agent
shall act solely as an agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust
with or for any Credit Party or any of its Subsidiaries.
8.2 POWERS AND DUTIES; GENERAL IMMUNITY.
A. POWERS; DUTIES SPECIFIED. Each Lender irrevocably authorizes
Administrative Agent (subject to subsection 8.5) to take such action on such
Lender's behalf and to exercise such powers, rights and remedies hereunder and
under the other Loan Documents as are specifically delegated or granted to
Administrative Agent by the terms hereof and thereof, together with such powers,
rights and remedies as are reasonably incidental thereto. Administrative Agent
shall have only those duties and responsibilities that are expressly specified
in this Agreement and the other Loan Documents. Administrative Agent may
exercise such powers, rights and remedies and perform such duties by or through
its agents or employees. Administrative Agent shall not have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon Administrative Agent any obligations in respect of this Agreement or
any of the other Loan Documents except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Administrative Agent
shall not be responsible to any Lender for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement or any other Loan Document or for any representations, warranties,
recitals or statements made herein or therein or made in any written or oral
statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Administrative Agent to
Lenders or by or on behalf of any Credit Party to Administrative Agent or any
Lender in connection with the Loan Documents and the transactions contemplated
thereby or for the financial condition or business affairs of any Credit Party
or any other Person liable for the payment of any Obligations, nor shall
Administrative Agent be required to ascertain or inquire as to the performance
or observance of any of the terms, conditions, provisions, covenants or
agreements contained in any
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of the Loan Documents or as to the use of the proceeds of the Loans or as to the
existence or possible existence of any Event of Default or Potential Event of
Default. Anything contained in this Agreement to the contrary notwithstanding,
Administrative Agent shall not have any liability arising from confirmations of
the amount of outstanding Loans.
C. EXCULPATORY PROVISIONS. Neither Administrative Agent nor any
of its officers, directors, employees or agents shall be liable to Lenders for
any action taken or omitted by Administrative Agent under or in connection with
any of the Loan Documents except to the extent caused by Administrative Agent's
gross negligence or willful misconduct. If Administrative Agent shall request
instructions from Lenders with respect to any act or action (including the
failure to take an action) in connection with this Agreement or any of the other
Loan Documents, Administrative Agent shall be entitled to refrain from such act
or taking such action unless and until Administrative Agent shall have received
instructions from Requisite Lenders. Without prejudice to the generality of the
foregoing, (i) Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any communication, instrument or document
believed by it to be genuine and correct and to have been signed or sent by the
proper person or persons, and shall be entitled to rely and shall be protected
in relying on opinions and judgments of attorneys (who may be attorneys for
Parent and the Credit Parties), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action
whatsoever against Administrative Agent as a result of Administrative Agent
acting or (where so instructed) refraining from acting under this Agreement or
any of the other Loan Documents in accordance with the instructions of Requisite
Lenders. Administrative Agent shall be entitled to refrain from exercising any
power, discretion or authority vested in it under this Agreement or any of the
other Loan Documents unless and until it has obtained the instructions of
Requisite Lenders.
D. ADMINISTRATIVE AGENT ENTITLED TO ACT AS LENDER. The agency
hereby created shall in no way impair or affect any of the rights and powers of,
or impose any duties or obligations upon, Administrative Agent in its individual
capacity as a Lender hereunder. With respect to its participation in the Loans,
Administrative Agent shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder, and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly otherwise
indicates, include Administrative Agent in its individual capacity.
Administrative Agent and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust, financial advisory or other
business with any Credit Party or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from any Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to Lenders.
8.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Parent and
the Credit Parties in connection with the making of the Loans hereunder and that
it has made and shall continue to make its own appraisal of the creditworthiness
of Parent and the Credit Parties. Administrative Agent shall not
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have any duty or responsibility, either initially or on a continuing basis, to
make any such investigation or any such appraisal on behalf of Lenders or to
provide any Lender with any credit or other information with respect thereto,
whether coming into its possession before the making of the Loans or at any time
or times thereafter, and Administrative Agent shall not have any responsibility
with respect to the accuracy of or the completeness of any information provided
to Lenders.
8.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify Administrative Agent, to the extent that Administrative
Agent shall not have been reimbursed by Borrowers, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against Administrative Agent in exercising its powers,
rights and remedies or performing its duties hereunder or under the other Loan
Documents or otherwise in its capacity as Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents;
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from Administrative Agent's gross negligence
or willful misconduct. If any indemnity furnished to Administrative Agent for
any purpose shall, in the opinion of Administrative Agent, be insufficient or
become impaired, Administrative Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional
indemnity is furnished.
8.5 SUCCESSOR ADMINISTRATIVE AGENT.
Administrative Agent may resign at any time by giving 30 days'
prior written notice thereof to Lenders and Borrowers, and Administrative Agent
may be removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to Borrowers and Administrative Agent and
signed by Requisite Lenders. Upon any such notice of resignation or any such
removal, Requisite Lenders shall have the right, upon five Business Days' notice
to Borrowers, to appoint a successor Administrative Agent (with the consent of
Borrowers which consent shall not be unreasonably withheld and shall not be
required if such successor Administrative Agent is an existing Lender or at any
time that an Event of Default or Potential Event of Default has occurred and is
continuing). Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, that successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Administrative Agent and the
retiring or removed Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring or removed Administrative
Agent's resignation or removal hereunder as Administrative Agent, the provisions
of this Section 8 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
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8.6 COLLATERAL DOCUMENTS, ETC.
A. COLLATERAL DOCUMENTS. Each Lender hereby further authorizes
Administrative Agent to enter into the Collateral Documents as secured party, in
each case on behalf of and for the benefit of Lenders and agrees to be bound by
the terms of the Collateral Documents; provided that Administrative Agent shall
not enter into or consent to any amendment, modification, termination or waiver
of any provision contained in the Collateral Documents without the prior consent
of Requisite Lenders; provided further, that anything in this Agreement or the
other Loan Documents to the contrary notwithstanding:
(i) Administrative Agent is authorized on behalf of all Lenders,
without the necessity of any notice to or further consent from
the Lenders, from time to time to take any action with respect to
any Collateral or the Collateral Documents which may be necessary
to perfect and maintain perfected the security interest in and
Liens upon the Collateral granted pursuant to the Collateral
Documents.
(ii) The Lenders irrevocably authorize Administrative Agent, at
its option and in its discretion, to release any Lien granted to
or held by Administrative Agent upon any Collateral (a) upon
termination of the Commitments and payment in full of the Loans
and all other Obligations payable under this Agreement and under
any other Loan Document; (b) constituting property sold or to be
sold or disposed of as part of or in connection with any
disposition permitted hereunder or under the Collateral
Documents; (c) constituting property in which any Credit Party
owned no interest at the time the Lien was granted or at any time
thereafter; (d) constituting property leased to any Credit Party
under a lease which has expired or been terminated in a
transaction permitted under this Agreement or is about to expire
and which has not been, and is not intended by such Credit Party
to be, renewed or extended; (e) consisting of an instrument
evidencing Indebtedness if the Indebtedness evidenced thereby has
been paid in full; or (f) if otherwise approved, authorized or
ratified in writing by Requisite Lenders, subject to subsection
9.6. Upon request by Administrative Agent at any time, Lenders
will confirm in writing Administrative Agent's authority to
release particular types or items of Collateral pursuant to this
subsection 8.6.
B. LENDER ACTION. Anything contained in any of the Loan Documents
to the contrary notwithstanding, each Lender agrees that no Lender shall have
any right individually to realize upon any of the Collateral under the
Collateral Documents (including without limitation through the exercise of a
right of set-off against call deposits of such Lender in which any funds on
deposit in the Collateral Documents may from time to time be invested) or
enforce any remedy or make any demand pursuant to the NMG Guaranty, it being
understood and agreed that all rights and remedies under the Collateral
Documents may be exercised solely by Administrative Agent for the benefit of
Lenders in accordance with the terms thereof.
8.7 APPOINTMENT OF SEPARATE ADMINISTRATIVE AGENT.
At any time or times deemed necessary or advisable by
Administrative Agent or Requisite Lenders, for purposes of complying with
Section 310(b) of the Communications Act
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and for purposes of enforcing any right or remedy hereunder, Administrative
Agent or Requisite Lenders may appoint one or more Persons to act as a separate
agent or co-agent to the full extent permitted by law and in accordance with
such instructions and directions as Administrative Agent or Requisite Lenders,
as the case may be, may specify. All provisions of this Agreement which are for
the benefit of the Administrative Agent shall extend to and apply to each
separate agent or co-agent appointed pursuant to the foregoing provisions. The
powers of any separate agent or co-agent shall not exceed those of the
Administrative Agent hereunder.
SECTION 9.
MISCELLANEOUS
9.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS.
A. GENERAL. Each Lender shall have the right at any time, subject
to the limitations set forth in subsections 9.1B, 9.1C and 9.1D, to (i) sell,
assign or transfer to any Eligible Assignee, or (ii) sell participations to any
Person in, all or any part of its Commitment or any Loan or Loans made by it or
any other interest herein or in any other Obligations owed to it; provided that
no such sale, assignment, transfer or participation shall, without the consent
of Borrowers, require Borrowers to file a registration statement with the
Securities and Exchange Commission or apply to qualify such sale, assignment,
transfer or participation under the securities laws of any state. Except as
otherwise provided in this subsection 9.1, no Lender shall, as between Borrowers
and such Lender, be relieved of any of its obligations hereunder as a result of
any sale, assignment or transfer of, or any granting of participations in, all
or any part of its Commitment or the Loans or other Obligations owed to such
Lender.
B. ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Each Commitment, Loan or
other Obligation may (a) be assigned in any amount to another
Lender, or to an Affiliate of the assigning Lender or another
Lender, with the giving of notice to Borrowers and Administrative
Agent or (b) be assigned to any other Eligible Assignee with the
consent of Administrative Agent and Borrowers (which consent
shall not be unreasonably withheld and which consent, in the case
of Borrowers, shall not be required (i) if an Event of Default or
Potential Event of Default has occurred and is continuing or (ii)
if such assignment is necessary or advisable to comply with any
applicable law or regulation); provided further that no Lender
shall make any assignment to any Eligible Assignee unless after
giving effect to such assignment (and any previous or concurrent
assignments by any Lender hereunder) such Eligible Assignee would
hold Commitments in an amount of not less than $5,000,000 (or
such lesser amount as shall constitute the aggregate amount of
the Commitments, Loans and other Obligations of the Assigning
Lender) and such assignment shall not upon its effectiveness
result in any increased costs to Borrowers of the type
contemplated by subsections 2.6D or 2.7; provided that such
minimum amount shall not apply (i) at any time that an Event of
Default or Potential Event of Default has occurred and is
continuing, (ii) to the extent such assignment is required by law
or any Governmental Authority or (iii) if, after giving effect to
such assignment, the assigning Lender would cease to be
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a Lender hereunder. To the extent of any such assignment in
accordance with either clause (a) or (b) above, the assigning
Lender shall be relieved of its obligations with respect to its
Commitment, Loans or other Obligations or the portion thereof so
assigned. The parties to each such assignment shall execute and
deliver to Administrative Agent, for its acceptance, an
Assignment Agreement, together with a processing fee of $3,500
and such forms, certificates or other evidence, if any, with
respect to United States federal income tax withholding matters
as the assignee under such Assignment Agreement may be required
to deliver to Administrative Agent pursuant to subsection
2.7B(iii)(a). Upon such execution, delivery, and acceptance, from
and after the effective date specified in such Assignment
Agreement, (y) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment Agreement, shall
have the rights and obligations of a Lender hereunder and (z) the
assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment Agreement, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an
Assignment Agreement covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto). The Commitments
hereunder shall be modified to reflect the Commitment of such
assignee and any remaining Commitment of such assigning Lender
and, if any such assignment occurs after the issuance of the
Notes hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as
practicable, surrender its Note to Administrative Agent for
cancellation, and thereupon new Notes shall be issued to the
assignee and to the assigning Lender, substantially in the form
of Exhibit III or IV, as the case may be, annexed hereto with
appropriate insertions, to reflect the new Commitments of the
assignee and the assigning Lender.
(ii) Acceptance by Administrative Agent. Upon its receipt of an
Assignment Agreement executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together
with the processing fee referred to in subsection 9.1B(i) and any
forms, certificates or other evidence with respect to United
States federal income tax withholding matters that such assignee
may be required to deliver to Administrative Agent pursuant to
subsection 2.7B(iii)(a), Administrative Agent shall, if such
Assignment Agreement has been completed and is in substantially
the form of Exhibit XII hereto and if Administrative Agent has
consented to the assignment evidenced thereby, (a) accept such
Assignment Agreement by executing a counterpart thereof as
provided therein (which acceptance shall evidence any required
consent of Administrative Agent to such assignment) and (b) give
prompt notice thereof to Borrowers. Administrative Agent shall
maintain a copy of each Assignment Agreement delivered to and
accepted by it as provided in this subsection 9.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder, and all
amounts payable by Borrowers hereunder (including without
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limitation amounts payable to such Lender pursuant to subsections 2.6D and 2.7)
shall be determined as if such Lender had not sold such participation. Borrowers
and each Lender hereby acknowledge and agree that, solely for purposes of
subsections 9.4 and 9.5, (a) any participation will give rise to a direct
obligation of Borrowers to the participant and (b) the participant shall be
considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the
assignments and participations permitted under the foregoing provisions of this
subsection 9.1, any Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed to such Lender, and its Note to any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating circular issued by
such Federal Reserve Bank; provided that (i) no Lender shall, as between
Borrowers and such Lender, be relieved of any of its obligations hereunder as a
result of any such assignment and pledge and (ii) in no event shall such Federal
Reserve Bank be considered to be a "Lender" or be entitled to require the
assigning Lender to take or omit to take any action hereunder.
E. INFORMATION. Each Lender may furnish any information
concerning Parent and the Credit Parties in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 9.19.
9.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, each Borrower, agrees, jointly and severally, to pay promptly (i)
all the reasonable out-of-pocket costs and expenses of preparation of the Loan
Documents and any consents, amendments, waivers or other modifications thereto;
(ii) all the out-of-pocket costs of furnishing all opinions by counsel for the
Credit Parties (including without limitation any opinions requested by Lenders
as to any legal matters arising hereunder) and of Borrowers performance of and
compliance with all agreements and conditions on its part to be performed or
complied with under this Agreement and the other Loan Documents including,
without limitation, with respect to confirming compliance with environmental and
insurance requirements; (iii) the reasonable fees, expenses and disbursements of
counsel to Administrative Agent in connection with the negotiation, preparation,
execution and administration of the Loan Documents and any consents, amendments,
waivers or other modifications thereto and any other documents or matters
requested by any Credit Party; (iv) all other reasonable out-of-pocket costs and
expenses incurred by Administrative Agent in connection with the syndication of
the Commitments; and (v) after the occurrence of an Event of Default, all costs
and expenses, including reasonable attorneys' fees and costs of settlement,
incurred by Administrative Agent and Lenders in enforcing any Obligations of or
in collecting any payments due from any Credit Party hereunder or under the
other Loan Documents by reason of such Event of Default or in connection with
any refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
9.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
9.2, whether or not the transactions contemplated hereby shall be consummated,
each Borrower agrees, jointly and
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severally, to defend, indemnify, pay and hold harmless Administrative Agent and
Lenders, and the officers, directors, employees, agents and affiliates of
Administrative Agent and Lenders (collectively called the "INDEMNITEES") from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements
of any kind or nature whatsoever (including without limitation the reasonable
fees and disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto), whether direct, indirect or consequential and
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including without limitation securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby (including without limitation Lenders' agreement
to make the Loans hereunder or the use or intended use of the proceeds of any of
the Loans) or the statements contained in the commitment letter delivered by any
Lender to Borrowers with respect thereto (collectively called the "INDEMNIFIED
LIABILITIES"); provided that Borrowers shall not have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent
such Indemnified Liabilities arise from the gross negligence or willful
misconduct of that Indemnitee as determined by a final judgment of a court of
competent jurisdiction. To the extent that the undertaking to defend, indemnify,
pay and hold harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, each Borrower shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by the Indemnitees or any of them.
9.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Borrower at any time or from time to time, without notice to such Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time held or owing by that Lender to or for the credit or
the account of such Borrower against and on account of the obligations and
liabilities of Borrowers to that Lender under this Agreement and the other Loan
Documents, including, but not limited to, all claims of any nature or
description arising out of or connected with this Agreement or any other Loan
Document, irrespective of whether or not (i) that Lender shall have made any
demand hereunder or (ii) the principal of or the interest on the Loans or any
other amounts due hereunder shall have become due and payable pursuant to
Section 7 and although said obligations and liabilities, or any of them, may be
contingent or unmatured. Each Borrower hereby further grants to Administrative
Agent and each Lender a security interest in all deposits and accounts
maintained with Administrative Agent or such Lender as security for the
Obligations.
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9.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment, by realization upon security, through the exercise
of any right of set-off or banker's lien, by counterclaim or cross action or by
the enforcement of any right under the Loan Documents or otherwise, or as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code, receive payment or reduction of a proportion of the aggregate amount of
principal, interest, fees and other amounts then due and owing to that Lender
hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which it shall
be deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of any Credit Party or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Each Borrower expressly consents
to the foregoing arrangement and agrees that any holder of a participation so
purchased may exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by any Borrower to that
holder with respect thereto as fully as if that holder were owed the amount of
the participation held by that holder.
9.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, or consent to any departure by
Borrowers therefrom, shall in any event be effective without the written
concurrence of Requisite Lenders; provided that any such amendment,
modification, termination, waiver or consent which: (i) changes the method for
calculating any Lender's Pro Rata Share; changes in any manner the method for
calculating "Requisite Lenders"; changes in any manner any provision of this
Agreement which, by its terms, expressly requires the approval or concurrence of
all Lenders; or changes in any manner the provisions contained in subsection 7.1
or this subsection 9.6; or releases all or substantially all of the Collateral,
shall be effective, in each case, only if evidenced by a writing signed by or on
behalf of all Lenders; or (ii) increases the amount of any of the Commitments
(other than the availability of the First Reserve Amount and the Second Reserve
Amount in accordance with the provisions of subsection 2.1A(iii) which shall
require only the consents specified therein) or reduces the principal amount of
any of the Loans; postpones the dates of regularly scheduled or mandatory
payments or prepayments of the Loans or reductions of the Commitments by
Borrowers in respect thereof (other than with respect to prepayments or
reductions required under subsection 2.4B(iii) for which the written concurrence
of Requisite Lenders only shall be required for any such amendment,
modification, termination, waiver or consent); postpones the date on which any
interest or any fees are payable with respect to any Loans or Commitments;
decreases the interest rate borne by any of the Loans (other than any waiver of
any increase in
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the interest rate applicable to any of the Loans pursuant to subsection 2.2E,
for which the written consent of Requisite Lenders only shall be required for
such waiver) or the amount of any fees payable hereunder with respect to any of
the Loans or Commitments; increases the maximum duration of Interest Periods
permitted hereunder with respect to any Loans, shall be effective, in each case,
only if evidenced by a writing signed by or on behalf of all Lenders holding the
Loans and/or for the Commitments which are the subject of such amendment,
modification, termination, waiver or consent. In addition, (i) any amendment,
modification, termination or waiver of any of the provisions contained in
Section 3 shall be effective only if evidenced by a writing signed by or on
behalf of Administrative Agent and Requisite Lenders, (ii) no amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the Lender which is the holder of
that Note, and (iii) no amendment, modification, termination or waiver of any
provision of Section 8 or of any other provision of this Agreement which, by its
terms, expressly requires the approval or concurrence of Administrative Agent
shall be effective without the written concurrence of Administrative Agent.
Administrative Agent may, but shall have no obligation to, with the concurrence
of any Lender, execute amendments, modifications, waivers or consents on behalf
of that Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on any Credit Party in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 9.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by Borrowers, on Borrowers.
9.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that
if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the occurrence of an
Event of Default or Potential Event of Default if such action is taken or
condition exists.
9.8 NOTICES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telexed or sent by telefacsimile or United States
mail or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; provided that notices to Administrative Agent shall not
be effective until received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the signature pages
hereof or (i) as to Borrowers and Administrative Agent, such other address as
shall be designated by such Person in a written notice delivered to the other
parties hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
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9.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
B. Notwithstanding anything in this Agreement or implied by law
to the contrary, the agreements of Borrowers set forth in subsections 2.6D, 2.7,
9.2, 9.3 and 9.4 and the agreements of Lenders set forth in subsections 8.2C,
8.4 and 9.5 shall survive the payment of the Loans and the termination of this
Agreement.
9.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Administrative Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any
other Loan Document shall impair such power, right or privilege or be construed
to be a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
9.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither Administrative Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Credit Party or any other party
or against or in payment of any or all of the Obligations. To the extent that
any Credit Party makes a payment or payments to Administrative Agent or Lenders
(or to Administrative Agent for the benefit of Lenders), or Administrative Agent
or Lenders enforce any security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law, common
law or any equitable cause, then, to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
9.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or
the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
9.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitment of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders as a partnership, an association, a joint venture
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or any other kind of entity. The amounts payable at any time hereunder to each
Lender shall be a separate and independent debt, and each Lender shall be
entitled to protect and enforce its rights arising out of this Agreement and it
shall not be necessary for any other Lender to be joined as an additional party
in any proceeding for such purpose.
9.14 HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
9.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
9.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 9.1). Neither any
Borrower's rights or obligations hereunder nor any interest therein may be
assigned or delegated by any Borrower without the prior written consent of all
Lenders.
9.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING
IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO SUCH BORROWER AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SUBSECTION 9.8;
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(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN
ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 9.17 RELATING
TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE
FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
9.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
without limitation contract claims, tort claims, breach of duty claims and all
other common law and statutory claims. Each party hereto acknowledges that this
waiver is a material inducement to enter into a business relationship, that each
has already relied on this waiver in entering into this Agreement, and that each
will continue to rely on this waiver in their related future dealings. Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION
9.18 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.
9.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which is subject to the
confidentiality provisions of federal law or which has been identified as
confidential by Borrowers in accordance with such Lender's
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customary procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices, it being understood and agreed
by Borrowers that in any event a Lender may make disclosures to Affiliates of
such Lender or disclosures reasonably required by any bona fide assignee,
transferee or participant in connection with the contemplated assignment or
transfer by such Lender of any Loans or any participations therein or
disclosures required or requested by any governmental agency or representative
thereof or pursuant to legal process; provided that, unless specifically
prohibited by applicable law or court order, each Lender shall notify Borrowers
of any request by any governmental agency or representative thereof (other than
any such request in connection with any examination of the financial condition
of such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information; and provided,
further that in no event shall any Lender be obligated or required to return any
materials furnished by any Credit Party.
9.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
It is the intention of each of the parties hereto that the
Existing Credit Agreement be amended and restated so as to preserve the
perfection and priority of all security interests securing indebtedness under
the Existing Credit Agreement and the other Loan Documents and that all
indebtedness and obligations of Borrowers hereunder and thereunder shall be
secured by the Collateral Documents and that this Agreement shall not constitute
a novation of the obligations and liabilities existing under the Existing Credit
Agreement or be deemed to evidence or constitute repayment of all or any portion
of any such obligations or liabilities. The parties hereto further acknowledge
and agree that this Agreement constitutes an amendment of the Existing Credit
Agreement made under the terms of subsection 9.6 thereof.
This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Borrowers and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof; provided that, unless and until all of the
conditions set forth in subsection 3.1 have been satisfied or waived in
accordance with subsection 9.6 of the Existing Credit Agreement, the Existing
Credit Agreement shall remain in full force and effect without giving effect to
the amendments set forth herein, all as if this Agreement had never been
executed and delivered.
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EXECUTION
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWERS: NORTHLAND CABLE PROPERTIES, INC.
By:
------------------------------------------
Gary S. Jones
Notice Address:
Suite 3600
1201 Third Avenue
Seattle, Washington 98101
Telecopy: (206) 623-9015
Attention: Laura N. Williams
S-1
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NORTHLAND CABLE VENTURES LLC
By: NORTHLAND CABLE PROPERTIES, INC., its
Managing Member
By:
------------------------------------------
Gary S. Jones
Notice Address:
Suite 3600
1201 Third Avenue
Seattle, Washington 98101
Telecopy: (206) 623-9015
Attention: Laura N. Williams
S-2
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LENDERS: BANK OF MONTREAL, CHICAGO BRANCH,
individually and as Administrative Agent
By:
------------------------------------------
Karen S. Klapper
Director
Notice Address on or prior to June 30, 2001:
430 Park Avenue
New York, New York 10022
Telecopy: (212) 605-1648
Attention: Karen S. Klapper
Notice Address after June 30, 2001:
3 Times Square
New York, New York 10036
Telecopy: (212) 605-1648
Attention: Karen S. Klapper
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BANK OF AMERICA, N.A.,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By:
------------------------------------------
Name:
Title:
Notice Address:
WA1-501-35-01
800 Fifth Avenue
35th Floor
Seattle, Washington 98104
Telecopy: (206) 358-3971
Attention: Mike Loken
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115
IBJ WHITEHALL BANK & TRUST COMPANY
By:
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Name:
Title:
Notice Address:
1 State Street
New York, New York 10004
Telecopy: (212) 858-2004
Attention: Alexander B. Wright
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116
U.S. BANK NATIONAL ASSOCIATION
INDIVIDUALLY AND AS SYNDICATION AGENT
By:
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Name:
Title:
Notice Address:
1420 Fifth Avenue
10th Floor
Seattle, Washington 98101
Telecopy: (206) 344-2331
Attention: Kurt Imerman
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