SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended September 30, 1996
......or
[] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____ to _____
Commission File Number 0-27192
ASCENT ENTERTAINMENT GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware ...... 52-1930707
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Tabor Center
1200 Seventeenth Street, Suite 2800
Denver, Colorado 80202
(Address of principle executive office)
(303) 626-7000
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve (12) months (or for such shorter period that
the Registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. Yes X No
The number of shares outstanding of the Registrant's Common Stock as of
September 30, 1996 was 29,752,400 shares.
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
ASCENT ENTERTAINMENT GROUP, INC.
Condensed Consolidated Balance Sheets
(In thousands)
<CAPTION>
September 30, December 31,
1996 1995
(Unaudited)
ASSETS
<S> <C> <C>
Current Assets:
Cash and cash equivalents............. $ 1,473 $11,012
Receivables, net...................... 25,631 41,331
Other................................. 27,841 15,255
Total current assets.............. 54,945 67,598
Property and equipment, net .............. 255,206 220,602
Franchise rights, net..................... 103,282 107,962
Goodwill, net............................. 46,817 49,803
Film costs, net........................... 43,208 11,470
Investments............................... 8,393 6,628
Other assets.............................. 34,266 40,950
Total Assets ............................. $546,117 $505,013
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term debt ...................... $70,500 $ __
Accounts payable and accrued liabilities 30,924 43,379
Payable to COMSAT..................... 4,605 7,217
Deferred income....................... 28,758 35,435
Total current liabilities......... 134,787 86,031
Long-term debt............................ 72,000 70,000
Deferred income taxes..................... 8,119 4,436
Other long-term liabilities............... 15,079 13,843
Total liabilities................. 229,985 174,310
Minority interest......................... 28,567 27,867
Stockholders' equity:
Common stock......................... 297 297
Additional paid-in capital........... 303,771 303,771
Accumulated deficit.................. (18,000) (1,232)
Unrealized gain on available for
sale securities, net of taxes..... 1,497 __
Total stockholders' equity...... 287,565 302,836
Total Liabilities and Stockholders' equity $ 546,117 $ 505,013
See accompanying notes to these condensed unaudited consolidated financial
statements.
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ASCENT ENTERTAINMENT GROUP, INC.
Condensed Consolidated Statements of Operations
(Unaudited)
(In thousands, except per share amounts)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1996 1995 1996 1995
<S> <C> <C> <C> <C>
Revenues...................... $33,940 $37,548 $152,583 $134,283
Operating expenses:
Cost of services.......... 21,533 27,205 114,138 92,467
Depreciation and amortization 17,042 14,759 48,946 39,389
Provision for restructuring _ 10,866 _ 10,866
General and administrative 2,599 3,279 7,723 8,123
Total operating expenses.. 41,174 56,109 170,807 150,845
Operating income (loss)....... (7,234) (18,561) (18,224) (16,562)
Other income (expense), net... 728 (643) 491 (1,800)
Interest expense.............. (2,282) (156) (5,905) (365)
Loss before taxes and minority
interest................... (8,788) (19,360) (23,638) (18,727)
Income tax benefit............ 2,738 5,928 7,186 5,734
Loss before minority interest. (6,050) (13,432) (16,452) (12,993)
Minority interest............. (52) (440) (316) (564)
Net loss...................... $(6,102) $(13,872) $(16,768) $(13,557)
Net loss per share............ $ (0.21) $ (0.58) $ (0.56) $ (0.56)
Weighted Average number of
common shares outstanding..... 29,752 24,000 29,752 24,000
See accompanying notes to these condensed unaudited consolidated financial
statements.
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<TABLE>
ASCENT ENTERTAINMENT GROUP, INC.
Condensed Consolidated Cash Flow Statements
(Unaudited)
(In thousands)
<CAPTION>
Nine Months Ended September 30,
1996 1995
<S> <C> <C>
Cash flows from operating activities:
Net loss.............................. $(16,768) $(13,557)
Adjustments for non-cash expenses:
Depreciation and amortization.... 48,946 39,389
Amortization of film inventory... 5,380 4,434
Provision for restructuring...... _ 10,866
Provision for loss on investment. 1,800 _
Changes in operating assets and liabilities (11,079) (7,506)
Other................................. _ 2,505
Net cash provided by operating
activities.......................... 28,279 36,131
Cash flows from investing activities:
Payments on note receivable........... 2,900 _
Proceeds from sale of investment...... 1,892 _
Purchase of property and equipment.... (73,421) (59,271)
Investments in unconsolidated businesses (4,125) (3,625)
Net expenditures for film production costs (33,432) (11,719)
Acquisitions.......................... _ (76,027)
Other................................. _ 553
Net cash used in investing activities. (106,186) (150,089)
Cash flows from financing activities:
Repayment of long-term debt........... (208) (742)
Net short-term borrowings ............ 68,000 -
Net transfer from COMSAT and subsidiaries _ 114,927
Other................................. 576 -
Net cash provided by financing activities 68,368 114,185
Net increase (decrease) in cash and cash
equivalents............................... (9,539) 227
Cash and cash equivalents, beginning of period 11,012 3,358
Cash and cash equivalents, end of period.. $ 1,473 $ 3,585
See accompanying notes to these condensed unaudited consolidated financial
statements.
</TABLE>
<PAGE>
ASCENT ENTERTAINMENT GROUP, INC.
Notes to Condensed Consolidated Financial Statements (Unaudited)
1. General
The accompanying unaudited condensed consolidated financial statements have
been prepared by Ascent Entertainment Group, Inc. ("Ascent" or the "Company")
pursuant to the rules and regulations of the Securities and Exchange Commission
(the "Commission"). These financial statements should be read in the context of
the financial statements and notes thereto filed with the Commission in the
Company's 1995 Annual Report on Form 10-K. Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted
pursuant to such regulations. The accompanying condensed consolidated financial
statements reflect all adjustments and disclosures which are, in the opinion of
management, necessary for a fair presentation. All such adjustments are of a
normal recurring nature. The results of operations for the interim periods are
not necessarily indicative of the results of the entire year. Certain December
31, 1995 balance sheet amounts have been reclassified to conform with the
September 30, 1996 presentation.
The accompanying financial statements include the accounts of Ascent and its
majority-owned subsidiaries which include On Command Video ("OCV") , Ascent
Network Services, Inc. ("ANS") (formerly COMSAT Video Enterprises, Inc.), the
Denver Nuggets Limited Partnership (the "Nuggets"), Beacon Communication Corp.
("Beacon") and since July 1, 1995 the Colorado Avalanche LLC (the "Avalanche").
Intercompany transactions have been eliminated.
2. Business Combination
On October 10, 1996, Ascent through its newly formed subsidiary, On Command
Corporation ("OCC"), consummated the previously announced acquisition (the
"Acquisition") of the assets and properties (including, but not limited to,
copyrights, patents, personal property, real property, equipment and records)
and certain liabilities of SpectraVision, Inc. ("SpectraVision"), with an
effective closing date of October 8, 1996 (the "Closing Date"). The Acquisition
was consummated pursuant to an Acquisition Agreement dated August 13, 1996,
among Ascent, OCC, SpectraVision and the other parties named therein (the
"Acquisition Agreement"). Pursuant to the Acquisition Agreement, OCC acquired
all of the outstanding capital stock of SpectraDyne, Inc. the primary operating
subsidiary of SpectraVision, together with certain other assets of SpectraVision
and its affiliates. Prior to the Closing Date, OCV, formerly an 83% owned
subsidiary of Ascent (approximately 79% owned on a fully diluted basis - see
Note 6), was merged (the "Merger") into a subsidiary of OCC and became a wholly
owned subsidiary of OCC pursuant to an Agreement and Plan of Merger (the "Merger
Agreement") by and among OCC, OCV and On Command Merger Corporation dated August
13, 1996. The Acquisition Agreement and the Merger Agreement were entered into
to effect the terms of the Agreement dated April 19, 1996 entered into among
Ascent, OCV and the other parties named therein and to effectuate the
transactions contemplated thereby.
As of the Closing Date, Ascent and the minority stockholders of OCV received
21,750,000 shares of OCC common stock (72.5% of the initial outstanding OCC
common stock). Of these shares, Ascent received 17,149,766 shares. In
consideration of the acquisition of the assets and properties of SpectraVision
by OCC, 8,041,618 shares of OCC common stock were issued to the SpectraVision
bankruptcy estate for distribution to SpectraVision's creditors. Additionally,
208,382 shares were held in reserve pursuant to the Acquisition Agreement for
potential adjustments. This reserved stock will either be distributed to Ascent
and the OCV minority stockholders or to the SpectraVision bankruptcy estate for
the benefit of SpectraVision's creditors. Assuming no OCV stockholders exercise
their appraisal rights in connection with the transaction and without giving
effect to the Reserve Stock, Ascent owns approximately 57.2% of the outstanding
common stock of OCC.
In connection with the Acquisition and the Merger, OCC also issued warrants
representing the right to purchase a total of 7,500,000 shares of OCC common
stock (20% of the outstanding common stock of OCC, after exercise of the
warrants). The warrants have a term of 7 years and an exercise price of $15.27
per share of OCC Common Stock. Series A Warrants to purchase on a cashless basis
an aggregate of 1,425,000 shares of OCC common stock were issued to the former
OCV stockholders, of which Ascent received warrants to purchase 1,124,325
shares; Series B Warrants to purchase for cash an aggregate of 2,625,000 shares
of OCC common stock were issued to the SpectraVision bankruptcy estate for
distribution to creditors; and, at the direction of Ascent and OCV, Series C
Warrants were issued to OCC's investment advisors to purchase for cash an
aggregate of 3,450,000 shares of OCC common stock in consideration of certain
investment banking and advisory services provided in connection with the
transactions.
3. Investments and Denver Arena Development Project
As discussed in Note 15 to the Company's 1995 financial statements, on March
28, 1996, the Company entered into an agreement with The Anschutz Corporation
("TAC") pursuant to which the Company purchased all of TAC's interests in the
proposed arena development project in Denver and related goodwill, rights,
plans, specifications, drawings, contracts, relationships, approvals, permits
and other work product of every kind that had been generated by the efforts of
TAC and Ascent with respect to the proposed arena (the "Arena Assets"), and TAC
agreed to use reasonable efforts to facilitate the development and construction
of the proposed arena. Ascent and TAC had worked together on the proposed arena
development from early 1994 until September 1995. In consideration for TAC's
interest in the Arena Assets and its agreement to facilitate development of the
proposed arena, Ascent paid TAC $6,600,000 in cash. On a contingent and
non-interest bearing basis Ascent agreed to pay TAC an additional $5,000,000 and
grant a paid-up suite license, both linked to the construction and occupancy of
the proposed arena. This obligation, net of discount, has been accrued and is
included in the accompanying balance sheet in short-term debt ($2,500,000) and
long-term debt ($2,000,000) at September 30, 1996.
Also pursuant to the agreement with TAC, as of March 30, 1996, Ascent
purchased all of TAC's interests in New Elitch Gardens, Ltd. ("Elitch Gardens"),
a company which owns and operates an amusement park in downtown Denver, for
$4,100,000 in cash. This purchase increased Ascent's limited partnership
interest in Elitch Gardens from 13% to 26% of the outstanding partnership units.
On March 28, 1996, the Company entered into a Land Purchase Agreement (the
"Agreement") with Southern Pacific Transportation Company ("SPT") pursuant to
which the Company would purchase approximately 49 acres in Denver as the site
for the proposed arena for $20,000,000. Pursuant to the Agreement, the closing
of the land purchase had to have occurred on or before June 28, 1996. The
closing did not take place by this time and the Agreement terminated. It is
management's belief that SPT will reinstate the Agreement and the closing date
for the Agreement will be extended. If the Agreement is reinstated, consummation
of the transaction would be subject to several conditions, including obtaining
satisfactory financing and reaching agreements with the City and County of
Denver regarding the construction of the proposed arena and the release of the
Nuggets and the Avalanche from their existing leases at their current arena,
McNichols Arena. The Agreement also provides for SPT to effect a state-approved
environmental clean-up plan on the site, and provide continuing indemnification
with regard to certain environmental liabilities.
In September, 1996, the Company recorded a $1,800,000 reserve on its limited
partnership investment in Elitch Gardens, based on the announced sale of the
amusement park to Premier Parks, Inc. The Company's share of proceeds from the
sale, which closed on October 30, 1996, may be subject to certain future
adjustments, including future contingencies.
4. Debt
In conjunction with the SpectraVison acquisition, OCC obtained a $125 million
credit facility with a bank, (the "OCC Credit Facility") dated as of October 8,
1996. The OCC Credit Facility consists of (i) a 364-day revolving credit and
competitive advance facility which, subject to certain conditions, will be
renewable for four 364-day periods, and (ii) a five year revolving credit and
competitive advance facility; provided, however, that any amounts borrowed under
the five year facility will reduce the amount available under the 364-day
facility. Revolving loans extended under the OCC Credit Facility generally will
bear interest at the London Interbank Offering Rate ("LIBOR") plus a spread that
may range from 0.50% to 0.75% depending on certain operating ratios of OCC. The
OCC Credit Facility contains customary covenants, including, among other things,
compliance by OCC with certain financial covenants. The OCC Credit Facility
limits OCC's ability to incur indebtedness or pay dividends, but does not
preclude OCC from paying cash dividends on its Common Stock. Upon the closing of
the SpectraVision acquisition, OCC borrowed $92.0 million under its credit
facility to (i) pay-off debt obligations of SpectraVision of approximately $40.0
million, (ii) pay-off intercompany obligations of OCV to Ascent and other OCC
obligations of approximately $43.6 million and (iii) to pay certain
administrative claims and other bankruptcy costs of SpectraVision and its
affiliated debtors of approximately $8.4 million.
On the Closing Date, Ascent also entered into a new credit agreement (the
"Ascent Credit Facility") with the same bank as OCC. The Ascent Credit Facility
provides for borrowings of up to $200 million, consisting of a 364-day secured
revolving credit facility. This facility, subject to certain conditions, will be
renewable for two 364-day periods. Revolving loans extended under the Ascent
Credit Facility generally will bear interest at LIBOR plus a spread that may
range from 2.00% to 2.50% depending on certain operating ratios of Ascent. The
Ascent Credit Facility provides that at no time will amounts outstanding under
the facility exceed (a) $125.0 million, until Ascent shall have received consent
from the NBA and NHL to pledge Ascent's interests in the Nuggets and Avalanche,
respectively, and thereafter (b) the sum of (i) up to $100 million secured by
first priority pledges of, and liens on, the equity interests in all of Ascent's
subsidiaries (excluding OCC), plus (ii) 50% of the value of the OCC Common Stock
owned by Ascent, secured by a pledge of such stock. The company expects to
obtain the consents from the NBA and NHL prior to December 31, 1995. The Ascent
Credit Facility also contains covenants requiring Ascent to maintain certain
financial covenants, limits Ascent's ability to incur indebtedness and precludes
Ascent from paying cash dividends on its Common Stock. Upon the closing of the
Ascent Credit Facility, Ascent extinguished borrowings of $145.0 million
outstanding under its then existing $175.0 million credit facility with a
different bank. The Company utilized funds received from OCC of $39.3 million
and borrowed $110.0 million under its new credit facility to extinguish its
outstanding bank obligations, including accrued interest, and other Ascent
obligations. The Company will record an extraordinary loss of approximately
$500,000 during the fourth quarter of 1996 in connection with the extinguishment
of its previous credit facility.
5. Restructuring
During the third quarter of 1995, management of the Company decided to
discontinue the Satellite Cinema scheduled movie operations. As a result of this
decision, a restructuring charge of $10,866,000 was recorded in the third
quarter of 1995. The components of this restructuring charge included a
write-down of property and equipment of $5,140,000 to their estimated salvage
value, an accrual for severance costs of $1,010,000 and a charge of $4,716,000
for costs related to contractual commitments that would not be fulfilled.
Through September 30, 1996, the Company has made cash payments for severance
costs and contractual commitment costs totaling $4,936,000 and has written-off
other assets of $129,000 relating to contractual commitments. The Company has
$661,000 remaining in restructuring accruals as of September 30, 1996, which is
primarily for severance and contractual obligations to be paid through July,
1997. Although subject to future adjustment, management of Ascent believes it
has adequate reserves as of September 30, 1996, to complete the restructuring
plan of Satellite Cinema's operations. During the nine month period ended
September 30, 1995, Satellite Cinema operations reflected revenues of
$20,204,000 and an operating loss, before allocation of general and
administrative expenses, of $5,662,000.
In December 1995, the assets and contracts relating to Satellite Cinema
rooms not transitioned to OCV were sold for a $4,000,000 promissory note due in
June 1996. The assets sold consisted principally of installed video systems and
related equipment inventory with payment of the note dependent on the buyer's
ability to deploy the purchased assets profitably. Accordingly, as of December
31, 1995, Ascent did not record the note receivable due to the uncertainty of
its collection and included the net book value of the assets sold of $1,689,000
in Other Long Term Assets in the accompanying balance sheet. Payments totaling
$2,900,000 were received on the note in July and August of 1996 with collection
of the remaining balance dependent upon the buyer obtaining additional sources
of cash. During the quarter ended September 30, 1996, the Company reflected the
sale of the assets and recorded a gain of $400,000, net of disposal costs.
6. Other Matters
In August 1996, the Company, OCV and Hilton Hotels Corporation ("Hilton")
entered into a letter agreement providing for the cancellation of 470,588 shares
of OCV common stock issued to Ascent pursuant to the Contribution Agreement
entered into between OCV and the Company in September, 1995 ("Contribution
Agreement"). The Contribution Agreement set forth the terms and conditions of
the transaction whereby OCV acquired certain assets from Ascent. As a result of
the cancellation of these shares, Ascent's ownership interest in OCV was reduced
from 84% to 83% (prior to the consummation of the SpectraVision transaction see
Note 2). Pursuant to the Corporate Agreement between COMSAT Corporation (COMSAT)
and Ascent, COMSAT had indemnified Ascent with respect to the adjustment
effected by the August 1996 letter agreement.
The August 1996 letter agreement also provided for an extension of the date
on which the exercise price of 410,561 warrants previously issued to Hilton by
OCV would increase from June 1, 1996 to the later of (i) 90 days after the
closing or the abandonment of the proposed transaction with SpectraVision or
(ii) December 1, 1996. On October 7, 1996, Hilton exercised its warrants under
the terms of the letter agreement and OCV received consideration of
approximately $10,685,000. In turn, OCV distributed a pro rata dividend to its
stockholders, consisting of a cash dividend to its minority stockholders of
$1,781,000 and a promissory note in the amount of $8,904,000 (which OCV had
received from Hilton) for Ascent's portion of the dividend, pursuant to the
letter agreement. The letter agreement provides Hilton the right to put to
Ascent all, but not less than all, of the warrant shares of OCV common stock
held by Hilton (or OCC Common Stock into which they were converted) which Hilton
still owns on the date 90 days after the closing of the transaction with
SpectraVision at the same exercise price at which Hilton exercised its warrants.
Accordingly, if Hilton elects to sell its current shares of OCC Common Stock to
Ascent, Hilton could cancel the promissory note assigned to Ascent and demand
payment for the balance of its warrant shares of OCC common stock.
7. New Accounting Pronouncements
As discussed in Note 1 to the Company's 1995 financial statements, Statement
of Financial Accounting Standard (SFAS) No. 123, "Accounting for Stock-Based
Compensation" was issued in 1995 and was effective beginning January 1, 1996.
SFAS No. 123 requires expanded disclosures of stock-based compensation
arrangements with employees and encourages (but does not require) compensation
cost to be measured based on the fair value of the equity instrument awarded.
Companies are permitted, however, to continue to apply APB Opinion No. 25,
"Accounting for Stock Issued to Employees", which recognizes compensation based
on the intrinsic value of the equity instrument awarded. The Company has elected
to apply APB No. 25 to its stock based compensation awards to employees and will
disclose the required proforma effect on net income and earnings per share in
the Company's 1996 annual financial statements.
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Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
ANALYSIS OF OPERATIONS
Consolidated Operations
Three months ended September 30, 1996 compared to Three months Ended
September 30, 1995
Revenues for the third quarter of 1996 were $33.9 million, a decrease of
$3.6 million or 10%, as compared to $37.5 million in revenues for the third
quarter of 1995. Third quarter 1995 revenues included $6.4 million of revenue
from the Company's Satellite Cinema business, which ceased operations on
December 31, 1995. Excluding this 1995 revenue source, the Company reported an
increase in revenues of $2.8 million during the third quarter of 1996 over the
comparable period in 1995. This increase is primarily attributable to a $3.7
million increase in revenues at OCV within the Multimedia segment. The
Entertainment segment reflected a decrease in revenues of $1.3 million during
the third quarter of 1996 from the comparable period in 1995. During the third
quarter of 1995, Beacon generated revenues from 3 motion pictures. During the
third quarter of 1996, Beacon had no movie releases and generated minimal
revenues from prior movie releases.
Cost of services for the third quarter of 1996 were $21.5 million, a
decrease of $5.7 million or 21% compared to the third quarter of 1995. This
decrease is attributable to the elimination of $7.8 million in costs from the
termination in 1995 of the Satellite Cinema pay-per-view operations partially
offset by the overall increase in the number of pay-per-view rooms served by
OCV.
Depreciation and amortization for the third quarter of 1996 was $17.0
million, an increase of $2.3 million or 15% compared to the third quarter of
1995. This increase reflects a higher installed room base and the resulting
increase in depreciation at OCV, and the amortization of the intangible assets
associated with the Avalanche acquisition in July 1995.
General and Administrative expenses for the third quarter of 1996 were $2.6
million, a decrease of $700,000 or 21% compared to the third quarter of 1995.
This decrease primarily reflects the reduction of approximately $1.0 million in
certain general and administrative service charges from COMSAT offset by an
increase in costs associated with the relocation of the Company's headquarters
to Denver and the costs associated with being a publicly traded corporation in
1996.
The provision for restructuring during the third quarter of 1995 resulted
from the discontinuation of Satellite Cinema's lower margin, scheduled,
satellite-delivered pay-per-view service. (See note 5 to the accompanying
condensed consolidated financial statements).
Other income (expense) increased by $1.4 million in the third quarter of
1996 as compared to the same period last year. During the third quarter of 1996,
the Company recorded a $1.8 million reserve on the Company's limited partnership
investment in Elitch Gardens (see Note 3 to the accompanying condensed
consolidated financial statements), as compared to a $900,000 charge recorded in
the third quarter of 1995 for expenses related to the new arena in Denver. The
improvement in other income during the quarter was also attributable to the
Company's recognition of gains of $1.9 million from the sale of investment
securities and $400,000 realized from the sale of certain Satellite Cinema
assets.
Interest expense increased $2.1 million in the third quarter of 1996 as
compared to the third quarter of 1995. This increase is the result of the
borrowings incurred in conjunction with the Company's initial public offering
(the "Offering") in December 1995 (see Note 5 to the Company's 1995 financial
statements) and the additional borrowings incurred by the Company during 1996 to
meet capital expenditure and investment requirements.
The Company recorded an income tax benefit of $2.7 million in the third
quarter of 1996 as compared to an income tax benefit of $5.9 million in the
third quarter of 1995, reflecting an effective tax rate of 31% in both periods.
Minority interest reflects the earnings attributable to the minority
interest in the Company's 83% owned subsidiary, OCV.
Nine Months ended September 30, 1996 compared to Nine Months ended September
30, 1995
Revenues for the nine months ended September 30, 1996 were $152.6 million,
an increase of $18.3 million or 14% over the $134.3 million in revenues for the
nine months ended September 30, 1995. The increase in the Multimedia
Distribution segment is primarily attributable to an increase of $20.0 million
in revenues from OCV and a $1.6 million increase in revenues at ANS. The
increase in the Entertainment segment is primarily attributable to the inclusion
of revenues of $24.2 million from the Avalanche, which was acquired in July 1995
and was not included in the consolidated results until the second half of last
year. These increases are offset by the recognition in 1995 of revenues from the
receipt of a non-recurring $8.8 million NBA expansion fee payment and $20.2
million of revenue from the Company's discontinued Satellite Cinema business.
Cost of services for the nine months ended September 30, 1996 were $114.1
million, an increase of $21.7 million or 23% over the nine months ended
September 30, 1995. The significant increase is primarily attributable to the
inclusion of the Avalanche, the overall increase in the number of pay-per-view
rooms served by OCV and the amortization of film costs at Beacon. These
increases were partially offset by a decline in costs from the termination in
1995 of the Satellite Cinema pay-per-view operations. The decline in margin is
primarily attributable to the absence of NBA expansion fees in 1996 and the
negative operating margins of Beacon, the Nuggets and the Avalanche in 1996.
Depreciation and amortization for the nine months ended September 30, 1996
was $48.9 million, an increase of $9.6 million or 24% over the nine months ended
September 30, 1995. This increase reflects a higher installed room base and the
resulting increase in depreciation at OCV, and the amortization of the
intangible assets associated with the Avalanche acquisition in July 1995.
General and administrative expenses for the nine months ended September 30,
1996 were $7.7 million, a decrease of $400,000 or 5% compared to the nine months
ended September 30 of 1995. This decrease reflects the reduction of
approximately $2.2 million in certain general and administrative charges from
COMSAT during the nine months ended September 30, 1996, offset by an increase in
costs associated with the relocation of the Company's headquarters to Denver and
the costs associated with being a publicly traded corporation in 1996.
Other income (expense) improved by $2.3 million during the nine months ended
September 30, 1996, as compared to the same period last year. During the nine
months ended September 30, 1996, the Company recorded $2.6 million of losses
relating to its limited partnership investment in Elitch Gardens. Of these
losses, $1.8 million reflects a reserve taken on the Company's investment in
Elitch's due to the sale (see Note 3 to the condensed consolidated financial
statements) and $500,000 for its equity in the losses of Elitch's prior to sale.
The nine months ended September 30, 1995, included a $1.5 million charge for
settlement of a lawsuit brought by a former employee of OCV and a $900,000
charge recorded for expenses related to the new arena in Denver. The improvement
in other income during the nine months ended September 30, 1996 was also
attributable to the Company's recognition of gains of $1.9 million from the sale
of investment securities and $400,000 realized from the sale of certain
Satellite Cinema assets.
Interest expense increased $5.5 million in the nine months ended September
30, 1996, as compared to the nine months ended September 30, 1995. This increase
is the result of the borrowings incurred in conjunction with the Offering in
December 1995 (see Note 5 to the Company's 1995 financial statements) and the
additional borrowings incurred by the Company during the nine months ended
September 30, 1996 to meet capital expenditure and investment requirements.
The Company recorded an income tax benefit of $7.2 million in the nine
months ended September 30, 1996 as compared to an income tax expense of $5.7
million during the same period last year, reflecting a effective tax rate of 30%
in both periods.
Minority interest reflects the earnings attributable to the minority
interest in the Company's 83% owned subsidiary, OCV.
Segment Operating Results
As discussed in Note 12 to the Company's 1995 financial statements, Ascent
reports operating results in two segments: multimedia distribution and
entertainment. Results by segment and certain information regarding the
pay-per-view customer base and certain statistical data affecting pay-per-view
rooms follows:
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended September 30, Nine Months ended
September 30,
1996 1995 1996 1995
(dollars in millions)
Income Statement Data:
<S> <C> <C> <C> <C>
Revenues:
Multimedia Distribution (1) $ 31.5 $ 33.8 $ 97.4 $ 96.0
Entertainment............. 2.4 3.7 55.2 38.3
Total Revenues (1)........ $ 33.9 $ 37.5 $152.6 $ 134.3
Operating Income (Loss):
Multimedia Distribution... $ .4 $ (11.2) $ 4.6 $ (9.5)
Entertainment............. (5.0) (4.1) (15.1) 1.0
General & Administrative.. (2.6) (3.3) (7.7) (8.1)
Total operating
income (loss) $ (7.2) $(18.6) $(18.2) $ (16.6)
Other Data:
EBITDA: (2)
Multimedia Distribution... $ 14.6 $ 11.8 $ 44.5 $ 34.7
Entertainment ............ (2.2) (1.4) (6.1) 7.1
General & Administrative.. (2.6) (3.3) (7.7) (8.1)
Total EBITDA........... $ 9.8 $ 7.1 $ 30.7 $ 33.7
Capital Expenditures:
Multimedia Distribution... $ 24.3 $ 14.5 $ 64.2 $ 56.8
Entertainment............. .5 .5 9.2 2.5
Total capital expenditures $ 24.8 $ 15.0 $ 73.4 $ 59.3
OCV installed rooms with On Demand Service (3) 441,000 333,000
OCV On Demand backlog rooms (3) 85,000 116,000
</TABLE>
(1) In connection with the acquisition by OCC of OCV and SpectraVision (see
Note 2 to the condensed consolidated financial statements), OCC will
reclassify certain income statement amounts in OCV's historical financial
statements to be consistent with the presentation used by SpectraVision,
Inc. and to conform to a more common presentation used by providers of
in-room entertainment to the lodging industry. Specifically, OCV has
historically reflected certain costs as a reduction of Revenues and will
now classify such costs as a Cost of Service. This reclassification will
have no impact on either OCC's or Ascent's operating income (loss).
Accordingly, Ascent will conform its presentation to that of OCC's during
the fourth quarter of 1996 in conjunction with its annual report on Form
10-K. If Ascent would have made these reclassifications as of September
30, 1996, consolidated Revenues and Cost of Services would have both
increased by $3.3 million and $2.4 million for the three months ended
September 30, 1996 and 1995, respectively, and $9.6 million and $5.9
million for the nine months ended September 30, 1996 and 1995,
respectively. Accordingly, Revenues for the Multimedia Distribution
segment would have increased to $34.8 million and $36.2 million for the
three months ended September 30, 1996 and 1995, respectively, and $107.0
million and $101.9 million for the nine months ended September 30, 1996
and 1995, respectively.
(2) Earnings before interest expense, income taxes, depreciation and
amortization ("EBITDA") is presented because it is a widely accepted
financial indicator used by certain investors and analysts to analyze and
compare companies on the basis of operating performance. EBITDA is not
intended to represent cash flows for the period, nor has it been presented
as an alternative to operating income as an indicator of operating
performance and should not be considered in isolation or as a substitute
for measures of performance prepared in accordance with generally accepted
accounting principles, which are presented in the financial statements
presented in Item 1 above, and discussed in "Liquidity and Capital
Resources" below.
(3) OCV installed rooms with On Demand Service represents the approximate
number of hotel rooms served by OCV's on demand pay-per-view movie system
as of the end of the period. OCV backlog represents the approximate number
of hotel rooms which are awaiting installation of OCV equipment.
Multimedia Distribution
The Multimedia Distribution segment includes the results of OCV and ANS. The
segment's third quarter revenues for 1996 decreased $2.3 million over last
year's third quarter. Excluding the revenue of $6.4 million from Satellite
Cinema, which ceased operations at the end of 1995, revenue increased $4.0
million or 15% in the third quarter of 1996 over the third quarter of 1995.
Year-to-date revenues for Multimedia Distribution increased $1.4 million over
the nine months ended September 30, 1995. Absent the 1995 revenues from
Satellite Cinema of $20.2 million, revenue increased $21.6 million or 28% on a
year-to-date basis in 1996 over the nine months ended September 30, 1995. OCV's
year-to-date revenues grew $20.0 million due to the growth in total rooms served
by OCV, approximately 441,000 rooms on September 30, 1996 versus approximately
333,000 rooms one year earlier. ANS's year-to-date revenues grew by $1.6 million
over the nine months ended September 30, 1995 due to an increase in support
services for network customers.
Operating income for the segment increased by $11.6 million and $14.1 million
for the third quarter and nine months ended September 30, 1996, respectively, as
compared to the same periods last year. During the third quarter of 1995, the
Company recorded a $10.9 million restructuring charge for the discontinuance of
its Satellite Cinema operations. The improvements in operating income are
primarily attributable to the elimination of unprofitable Satellite Cinema
operations, which reflected operating losses, before restructuring charges, of
$2.9 million and $5.7 million in the third quarter and the nine months ended
September 30, 1995, respectively.
EBITDA of the Multimedia Distribution segment increased by $2.8 million and
$9.8 million for the third quarter and nine months ended September 30, 1996,
respectively, as compared to the same periods last year. This increase reflects
a higher installed room base and the resulting increase in depreciation, the
elimination of the Satellite Cinema operations and the overall improvement in
operating income during the nine months ended September 30, 1996.
Capital expenditures for the segment increased by $9.8 million and $7.4
million for the third quarter and nine months ended September 30, 1996,
respectively, as compared to the same periods last year. The significant
increase during the three month period ended September 30, 1996 is attributable
to the procurement by ANS of equipment of approximately $5.9 million for a
project to support the Microsoft-NBC (MSNBC) network to provide a partial
digital upgrade of the NBC satellite transmission network. In addition, OCV
continued to install approximately 9,000 - 10,000 rooms per month during the
nine months ended September 30, 1996.
As discussed in Note 2 of the condensed consolidated financial statements, in
October 1996 OCV was combined with the assets of SpectraVision into OCC, as a
result of which the Multimedia Distribution segment in the future will consist
of OCC and ANS. It is anticipated that in the near term the acquisition of the
SpectraVision assets will increase revenues of the segment, but will result in
operating losses at OCC.
Entertainment
The Entertainment segment includes the results of the Nuggets, the Avalanche,
and Beacon. Revenues of the Entertainment segment for the third quarter of 1996
decreased by $1.3 million over the same quarter last year. This decrease in
revenues is attributable to the lower revenues from Beacon. During the third
quarter of 1995, Beacon generated significant revenues from three movies, The
Baby-Sitters Club, The Road to Wellville and Princess Caraboo. During the third
quarter of 1996, Beacon had no movie releases and generated minimal revenues
from prior movie releases. These lower movie revenues were offset partially by
revenues from four 1996 pre-season Colorado Avalanche home games, versus one in
1995. Year-to-date revenues for the Entertainment segment increased $16.9
million over the nine months ended September 30, 1995. This increase is
attributed to the inclusion of Avalanche revenues of $24.2 million and ticket
price increases for the Nuggets during the 1995/1996 playing season offset by
the NBA expansion fee recognized during the nine months ended September 30,
1995.
Operating losses for this segment increased by $1.0 million and $16.1 million
in the third quarter of 1996 and the nine months ended September 30, 1996 as
compared to the same periods last year. These declines are primarily
attributable to the losses incurred by Beacon, the Avalanche and the Nuggets and
the absence of NBA expansion fees in 1996.
EBITDA for the Entertainment segment declined by $.8 million and $13.2
million for the third quarter and nine months ended September 30, 1996,
respectively, as compared to the same periods last year. Once again, this
decline primarily reflects the operating losses incurred by Beacon, the
Avalanche and the Nuggets and the absence of the NBA expansion fees in 1996.
Capital expenditures for the Entertainment segment during the third quarter
of 1996 decreased by $.3 million over the same quarter last year. This decrease
is primarily attributable to the incurrence of leasehold improvements at
McNichols Arena in Denver for hockey operations during the third quarter of
1995. Capital expenditures for the nine months ended September 30, 1996
increased by $6.5 million over the same period last year. This increase is
attributable to the purchase in March 1996 of TAC's interests in the proposed
arena and development project in Denver (see Note 3 to the condensed
consolidated financial statements).
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
The primary sources of cash during the nine-months ended September 30, 1996
were cash from operations of $28.4 million, short-term borrowings of $68.0
million under Ascent's then existing credit facility (see Note 5 of the
Company's 1995 financial statements), proceeds of $1.9 million from the sale of
investment securities and the collection of $2.9 million on a note receivable.
Cash was expended primarily for property and equipment, including capital
expenditures of $57.5 million for the continuing installation by OCV of
on-demand systems, $6.6 million for the development of the proposed arena in
Denver and the funding of $32.3 million incurred by Beacon for the initial costs
relating to the development and production of three motion pictures. During the
nine months ended September 30, 1996, the Company funded 100% of the production
costs of these motion pictures as the distribution and financing agreements for
these pictures with Beacon's film distributors and other financing sources had
not been finalized or the payments under those agreements are not due until the
pictures are delivered. During October and November, 1996, the Company received
approximately $25.2 million with respect to these production cost expenditures
pursuant to the terms of the related distribution and financing agreements, the
majority of which constitutes funds advanced against delivery of the films.
The Company's negative working capital position increased by $61.4 million
from December 31, 1995 to September 30, 1996. This is primarily attributable to
an increase in short-term debt of $70.5 million used mainly for the acquisition
of long-term assets of $54.0 million Excluding the short-term debt increase, the
working capital position improved by $9.1 million reflecting a reduction in
deferred revenue related to both the Nuggets and the Avalanche due to the
completion of their respective playing seasons.
The Company has access to short-term financing and OCC has access to
short-term and long-term financing under their respective Credit Facilities. In
conjunction with the closing of the Company's and OCC's new credit facilities
(see Note 4 to the condensed consolidated financial statements) the Company has
available bank borrowings sufficient to meet both its capital and operating
requirements.
The Company's cash requirements through the remainder of 1996 are expected to
include (i) the continuing installation by OCC of on-demand systems, (ii)
funding the working capital requirements of the operating subsidiaries of Ascent
(excluding OCC), and (iii) the payment of interest under the Ascent and OCC
Credit Facilities. The Company anticipates that capital expenditures for the
continued installation by OCC of on-demand services will be funded primarily
through cash flows from OCC's operations and financed under the OCC Credit
Facility. While the Company continues to plan to finance the construction of the
new arena in Denver, whereby the Company's equity participation will consist of
expenditures totaling $20-$25 million, of which approximately $12.0 million has
been incurred, any additional cash expenditures for such participation will be
delayed until calendar 1997 due to continued delays in reaching an agreement
with the City and County of Denver. Beacon's capital requirements with respect
to the funding of its current movie productions will be minimal through the
remainder of 1996.
Management of the Company believes that available cash and funds available
under the Ascent Credit Facility and the OCC Credit Facility will be sufficient
for the Company and its subsidiaries to satisfy their growth and finance working
capital requirements through the remainder of 1996.
Pursuant to the Company's Corporate Agreement with COMSAT, the Company has
agreed not to incur any indebtedness, other than that under Ascent's $175
million revolving credit facility (and refinancings thereof) and indebtedness
incurred in the ordinary course of business which together shall not exceed $175
million in the aggregate, without COMSAT's consent. The Corporate Agreement also
provides that, for so long as COMSAT owns at least 50% of Ascent's outstanding
Common Stock, Ascent will utilize reasonable cash management procedures and use
its reasonable best efforts to minimize its excess cash holdings.
In connection with the closing of the SpectraVision transaction, and in
consideration of Ascent's other capital requirements, COMSAT consented to permit
Ascent to incur consolidated indebtedness (including indebtedness of OCC) of up
to $216 million under the Corporate Agreement; provided, that: (i) no more than
$50 million of such indebtedness may constitute long term debt; and (ii)
indebtedness in excess of $175 million may only be incurred to satisfy funding
requirements for 1996. Also in connection with the SpectraVision transaction,
Ascent and OCC entered into a Corporate Agreement (the "OCC Corporate
Agreement"), pursuant to which OCC agreed, among other things, that for so long
as Ascent owns the largest percentage (and at least 40%) of the outstanding OCC
Common Stock, OCC will not incur any indebtedness, without Ascent's prior
written consent, other than under the OCC Credit Facility (and refinancings
thereof) and indebtedness incurred in the ordinary course of business which
together shall not exceed $100 million in the aggregate; provided that not more
than $50 million of such indebtedness may constitute long term debt. The OCC
Corporate Agreement will also provide that, for so long as Ascent owns the
largest percentage (and at least 40%) of the outstanding OCC Common Stock, OCC
will utilize reasonable cash management procedures and use its reasonable best
efforts to minimize its excess cash holdings. As a consequence, the ability of
Ascent and OCC to utilize the Ascent Credit Facility and the OCC Credit
Facility, respectively, will be subject to the limitations described above.
A primary purpose of the COMSAT Corporate Agreement is, and a primary purpose
of the OCC Corporate Agreement will be, to require Ascent to coordinate its
consolidated capital requirements with COMSAT so that COMSAT can monitor
compliance with the regulations of the Federal Communications Commission ("FCC")
applicable to the capital structure and debt financing activities of COMSAT and
its consolidated subsidiaries. COMSAT is required to submit a financial plan to
the FCC for review annually. Under existing FCC guidelines, COMSAT is subject to
a limit of $200 million in short-term debt, a maximum long-term debt to total
capital ratio of 45%, and an interest coverage ratio of 2.3 to 1. The latter two
guidelines are measured at year end. In October 1996, the FCC approved a
temporary decrease in the interest coverage ratio to a minimum of 1.9 to 1, and
an increase in the short-term debt limit to $325 million for the 1996 plan year
and until the FCC acts on COMSAT's 1997 capital plan. COMSAT has informed Ascent
that COMSAT was in compliance with the short-term debt limit at September 30,
1996, and expects to be in compliance with that guideline and the other
guidelines, as modified, at year end 1996.
Ascent management believes that the $216 million aggregate limit and related
restrictions on Ascent's consolidated indebtedness will be adequate to fund its
consolidated operations through the end of 1996. A number of factors could cause
Ascent's funding requirements to differ materially from those projected,
including, but not limited to, the operating performance of Ascent's
subsidiaries, unanticipated costs associated with the integration of
SpectraVision's and OCV's businesses, the level of ticket sales and other
revenues by Ascent's professional sports franchises, and other market
conditions. Prior to 1997, it will be necessary for Ascent to seek approval from
COMSAT to increase its debt limit, and for OCC to seek approval from Ascent to
increase its debt limit. As part of Ascent's 1997 operating and capital planning
process, Ascent management will request that COMSAT increase Ascent's debt limit
beginning in January 1997. There can be no assurance, however, that COMSAT will
approve an increase in Ascent's debt limit. If Ascent were not to obtain
approval to increase its debt limit, Ascent would be required to reduce or
reschedule planned capital investments, reduce cash outlays, reduce debt, sell
assets or sell equity, and it is highly unlikely that Ascent would approve an
increase in OCC's debt limit. If OCC's debt limit were not increased, OCC may be
required to reduce or reschedule planned capital investments, reduce cash
outlays, reduce debt, sell assets or sell equity.
COMSAT has also informed Ascent that if COMSAT were to fail to satisfy one or
more of the FCC guidelines as of an applicable measurement date, COMSAT would be
required to seek advance FCC approval of future financing activities on a case
by case basis. If such approval were not granted, Ascent could be required to
reduce or reschedule planned capital investments, reduce cash outlays, reduce
debt or sell assets or equity.
Finally, on October 18, 1996 COMSAT announced that it intends to divest its
80.67% percent ownership interest in Ascent through a sale, spin-off or other
transaction. COMSAT has engaged Morgan Stanley & Co. Incorporated to act as its
financial advisor for the divestiture.
<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
None.
Item 2. Change in Securities
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 5. Other Information
None.
Item 6. Exhibits and Reports on Form 8-K
(A) Exhibits
2.1 Agreement and Plan of Merger, dated as of August 13, 1996,
by and among On Command Corporation, On Command Merger
Corporation and On Command Video Corporation. (Incorporated
by reference to Exhibit 2.1 of the Registration Statement on
Form S-4 (File No.
333-10407) of On Command Corporation.)
2.2 Acquisition Agreement, dated as of August 13, 1996, by and
among On Command Corporation, Ascent Entertainment Group,
Inc., the Official Creditors Committee for SpectraVision,
Inc. and certain of its subsidiaries, SpectraVision, Inc.,
SpectraDyne,Inc. and the other parties named therein.
(Incorporated by reference to Exhibit 2.2 of the
Registration Statement on Form S-4 (File No. 333-10407) of
On Command Corporation.)
10.1 Amended and Restated SpectraVision and Interactive Services
National Agreement, dated August 31, 1993, by and between
Hyatt Corporation and SpectraDyne, Inc. (Confidential
treatment granted) (Incorporated by reference to Exhibit
10.2 of the Registration Statement on Form S-4 (File No.
333-10407) of On Command Corporation.)
10.2 Amended and Restated SpectraMax National Agreement, dated
August 31, 1993, by and between Hyatt Corporation and
SpectraDyne, Inc. (Confidential treatment granted)
(Incorporated by reference to Exhibit 10.3 of the
Registration Statement on Form S-4 (File No. 333-10407) of
On Command Corporation.)
10.3 Employment Agreement dated as of September 11, 1996 between
On Command Corporation and Robert M. Kavner.
10.4 Second Amendment to Development, Production and Domestic
Development Agreement between Beacon Communications Corp.
and Sony Pictures Entertainment dated as of July 22, 1996.
(Confidential treatment requested).
<PAGE>
10.5 Development, Production and Domestic Development Agreement
between Beacon Communications Corp. and Universal City
Studios, Inc. dated as of July 10, 1996. (Confidential
treatment requested)
10.6 Letter Agreement, dated as of August 13, 1996, among Ascent
Entertainment Group, Inc., Ascent Network Services, Inc., On
Command Video Corporation, COMSAT Corporation and Hilton
Hotels Corporation. (Incorporated by reference to Exhibit
10.7(c) of the Registration Statement on Form S-4 (File No.
333-10407) of On Command Corporation.)
10.7 Credit Agreement dated as of October 8, 1996 among Ascent
Entertainment Group, Inc., the Lenders named therein and
NationsBank of Texas, N.A., as the Administrative Agent.
10.8 Credit Agreement dated as of October 8, 1996 among On
Command Corporation, the Lenders named therein and
NationsBank of Texas, N.A., as the Administrative Agent.
27.0 Financial Data Schedule
(B) Reports on Form 8-K:
1. The Registrant filed with the Commission on September 26, 1996
a Form 8-K (as amended by a Form 8-K/A filed on October 17,
1996) describing (i) the election of Allen E. Flower to the
Board of Directors of the Company and (ii) anticipated changes
to the Registrant's liquidity and capital resources as a result
of the proposed acquisition of SpectraVision, Inc. and other
capital requirements of the Company.
2. The Registrant filed with the Commission on October 25, 1996 a
Form 8-K, describing the acquisition of the assets and certain
liabilities of SpectraVision, Inc. by On Command Corporation, a
subsidiary of the Registrant. Financial Statements included in
this Form 8-K are as follows:
(1) The following financial statements of SpectraVision, Inc.
were incorporated by reference from Amendment No. 3 to
the On Command Registration Statement on Form S-4,
commission file no. 333-10407, filed with the Commission on
October 7, 1996:
Audited Financial Statements for the years ended December 31,
1995, 1994 and 1993, including:
Independent Auditors' Report
Consolidated Statements of Financial Position at December 31,
1995 and 1994
Consolidated Statements of Operations for the years ended
December 31,1995, 1994 and 1993
Consolidated Statements of Stockholders' Deficit for the years
ended December 31, 1995, 1994 and 1993
Consolidated Statements of Cash Flows for the years ended
December 31, 1995, 1994 and 1993
Notes to Consolidated Financial Statements
Unaudited Interim Financial Statements for the six months ended
June 30, 1996 and 1995
Condensed Consolidated Balance Sheets at June 30, 1996 and
December 31, 1995
Condensed Consolidated Statements of Operations for the six
months ended June 30, 1996 and 1995
Condensed Consolidated Statements of Cash Flows for the six
months ended June 30, 1996 and 1995
Notes to Condensed Consolidated Financial Statements
(2) The following financial statements of OCV, were incorporated
by reference from Amendment No. 3 to the On Command
Registration Statement on Form S-4, commission file
no. 333-10407, filed with the Commission on October 7, 1996:
Audited Financial Statements for the years ended December 31,
1995, 1994 and 1993
Report of Deloitte & Touche LLP
Report of Ernst & Young LLP, Independent Auditors
Balance Sheets at December 31, 1995 and 1994
Statements of Income for the years ended December 31, 1995,
1994 and 1993
Statements of Stockholders' Equity for the years ended December
31, 1995, 1994 and 1993.
Statements of Cash Flows for the years ended December 31, 1995,
1994 and 1993
Notes to Financial Statements
Unaudited Interim Financial Statements for the six months
ended June 30, 1996 and 1995
Condensed Consolidated Balance Sheets at June 30, 1996 and
December 31, 1995
Condensed Consolidated Statements of Income for the six
months ended June 30, 1996 and 1995
Condensed Consolidated Statements of Cash Flows for the six
months ended June 30, 1996 and 1995
Notes to Condensed Consolidated Financial Statements
SIGNATURES
Pursuant to the requirements on the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Ascent Entertainment Group, Inc.
By: /s/ David A. Holden
David A. Holden
Controller
Date: November 13, 1996
Exhibit 10.3 to
Form 10-Q
EXECUTION COPY
EMPLOYMENT AGREEMENT
This AGREEMENT is made as of September 11, 1996, by and between On
Command Corporation, a Delaware corporation ("NEWCO"), and Robert M. Kavner, a
resident of the State of California (the "Executive").
WHEREAS, Ascent Entertainment Group, Inc., a Delaware corporation
("Ascent"), has entered into agreements with SpectraVision, Inc.
("SpectraVision") to combine (the "Combination") the assets and certain
liabilities of SpectraVision with the assets of Ascent's majority owned
subsidiary, On Command Video Corporation ("OCV");
WHEREAS, Ascent has created NEWCO as a holding company to own and
operate the combined assets and businesses of SpectraVision and OCV; and
WHEREAS, NEWCO desires to employ the Executive as President and
Chief Executive Officer of NEWCO, and the Executive desires to accept such
employment, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements made herein, and intending to be legally bound hereby, NEWCO and the
Executive agree as follows:
1. Employment; Duties.
(a) Employment and Employment Period. NEWCO shall employ the
Executive to serve as President and Chief Executive Officer of NEWCO for a
period (the "Employment Period") commencing on September 11, 1996 (the
"Effective Date") and continuing thereafter for a term of four years until the
fourth anniversary of the Effective Date unless terminated in accordance with
the provisions of this Agreement. In the event that Newco desires to extend the
employment of the Executive, it must give written notice of such desire by the
third anniversary of the Effective Date, and after such notice the parties shall
enter into an exclusive negotiation period of not less than six months, unless
otherwise mutually agreed upon by the parties in writing. The Executive may also
continue to serve as a director of Ascent but would not receive any compensation
for such position in addition to the compensation provided in this Agreement.
Each 12 month period ending on the anniversary date of the Effective Date is
sometimes referred to herein as a "year of the Employment Period."
Notwithstanding the foregoing, if the Combination has not been consummated by
October 31, 1996 on terms reasonably similar to those set forth in the On
Command Corporation Registration Statement on Form S-4 filed with the Securities
and Exchange Commission on August 16, 1996, and if either party desires to
terminate this Agreement as a result of the failure to so consummate the
Combination, then the parties agree to negotiate in good faith an equitable
basis for such termination in light of all of the circumstances then existing.
(b) Offices, Duties and Responsibilities. Effective on the Effective
Date, Executive shall be elected President and Chief Executive Officer of NEWCO.
The Executive shall report directly and solely to the Board of Directors of
NEWCO (the "Board"). Throughout the Employment Period, NEWCO shall cause
Executive to be a member of the Board. In addition, the Executive shall be a
member of all committees of the Board (including any executive committee or
nominating committee) other than the Audit Committee and the Compensation
Committee, and other than any special committees on which he might be regarded
as a self-interested member. The Executive's offices initially shall be located
at OCV's present headquarters. The Executive shall have all duties and authority
customarily accorded a chief executive officer, including, without limitation,
the lead responsibility with full autonomy, subject to the customary authority
and direction of the Board, to direct and develop the capabilities and
performance of NEWCO. The Executive shall be a member and the chairman of any
senior executive/management committees which may be established from time to
time by the Board. All employees of NEWCO shall report, directly or indirectly,
to the Executive and the Executive shall have the authority to hire and fire all
such employees within established budget parameters, provided that the Board
shall approve (i) any salary actions (including hiring decisions) for employees
of NEWCO which result in an annual salary in excess of the amount established by
the Board from time to time, but in no event less than $150,000, and (ii) any
bonuses to be awarded to employees of NEWCO, in excess of the amount established
by the Board from time to time, and provided further that the Board reserves the
right to take any such salary or bonus actions to the Compensation Committee of
the Board (the "Compensation Committee") for approval. The Executive's
management of NEWCO shall be (x) in accordance with the policies of the Board
and NEWCO's policies and procedures, both as in effect from time to time, and
(y) within the limits of an annual budget for NEWCO which shall be approved by
the Board at least 30 days before the beginning of the fiscal year to which such
budget relates. The annual budget shall provide adequate resources for Executive
to operate the businesses of NEWCO (the "Business") in a manner substantially
consistent with the customary day to day operations of comparable first-class
businesses in the United States. If the Executive proposes the expenditure of
any amounts which exceed the applicable annual budgets for NEWCO, such excess
amounts shall not be committed to Executive's authority unless and until
specifically authorized and approved by the Board.
(c) Devotion to Interests of NEWCO. During the Employment Period,
the Executive shall render his business services solely in the performance of
his duties hereunder. The Executive shall use his best efforts to promote the
interests and welfare of NEWCO. Notwithstanding the foregoing, the Executive
shall be entitled to undertake such outside activities (e.g., charitable,
educational, personal interests, board of directors membership, and so forth,
that do not compete with the Business) as do not unreasonably or materially
interfere with the performance of his duties hereunder as reasonably determined
by the Board in consultation with the Executive.
2. Compensation and Fringe Benefits.
(a) Base Compensation. NEWCO shall pay the Executive a base salary
("Base Salary") at the rate of $500,000 per year during the Employment Period
with payments made in installments in accordance with NEWCO's regular practice
for compensating executive personnel, provided that in no event shall such
payments be made less frequently than twice per month. The Base Salary for the
Executive shall be reviewed for increases each year during the Employment Period
commencing the second year of the Employment Period. Any Base Salary increases
shall be approved by the Board in its sole discretion.
(b) Bonus Compensation. The Executive will be eligible to receive
bonuses ("Annual Bonus") during the Employment Period in accordance with the
following parameters: (i) the target bonus for each fiscal year during the
Employment Period shall be 70% of Base Salary for achieving 100% of the target
level for the performance measures; and (ii) the performance measures, the
relative weight to be accorded each performance measure and the amount of bonus
payable in relation to the target bonus for achieving more or less than 100% of
the target level for the performance measures shall be determined for each year
during the Employment Period by the Compensation Committee after consultation
with the Executive. As part of the consultation process set forth in the
preceding sentence, the Executive shall prepare before the end of each fiscal
year ending during the Employment Period a business plan for NEWCO with respect
to at least the following three year period. The Board shall consider and
approve such plans on an annual basis, subject to such modifications as are
otherwise consistent with this Agreement, and each fiscal year the current plan
shall be considered by the Compensation Committee as the basis for establishing
the bonus standards for such year with such reasonable modifications as the
Compensation Committee may reasonably determine and which are consistent with
this Agreement. In addition, in connection with awarding the bonus for any
fiscal year, the Compensation Committee will consider whether the achievement of
the standards established for that year have been materially affected by
circumstances beyond the Executive's reasonable control, such as acquisitions,
dispositions, or limitations on NEWCO's ability to raise or deploy adequate
capital to accomplish the business plan approved by the Board. For the period
from the Effective Date through December 31, 1996, the Executive shall receive
an Annual Bonus to be determined in the sole discretion of the Compensation
Committee and which may be equal to 70% of Base Salary pro rated for the period
during which the Executive is employed, but absent the standards described above
will take into consideration achievement of reasonable goals and objectives for
such period. During the final partial fiscal year of the Employment Period, the
Annual Bonus shall be based on the standards set by the Compensation Committee
for that fiscal year and pro rated for the period during which the Executive is
employed.
(c) Fringe Benefits. The Executive also shall be entitled to
participate in group health, dental and disability insurance programs, and any
group profit sharing, deferred compensation, life insurance or other benefit
plans as are generally made available by NEWCO to the senior executives of NEWCO
on a favored nations basis, which benefits shall be comparable, in the
aggregate, to the benefits available to senior executives of similarly situated
companies; provided, however, for as long as Ascent owns at least 50% of the
voting equity of NEWCO, such benefits shall not be greater in the aggregate than
those available to the senior executives of Ascent, specifically the President
and Chief Executive Officer and Executive Vice President, Finance and Chief
Operating Officer. Such benefits in all events shall include payment or
reimbursement of (i) documented expenses reasonably incurred in connection with
travel and entertainment related to NEWCO's business and affairs, (ii)
documented expenses incurred in connection with the sale of the Executive's home
in Los Angeles, California, the acquisition of a home in the greater San
Francisco or San Jose areas and relocation of Executive and his family to that
area (with such expenses to include, but not be limited to, closing costs,
seller's broker's fees, title insurance, interest costs associated with
maintaining more than one residence while the other residence is in the process
of being sold, prepayment penalties and reasonable temporary living expenses,
and any loss on such sale, without regard to such expenses, not to exceed
$200,000)) with such similar documented expenses as described in this subsection
(ii) to be paid in connection with any subsequent relocation of the Executive by
NEWCO during the Employment Period, (iii) a monthly payment for or reimbursement
of automobile and other transportation related expenses of $1,100 per month,
(iv) documented expenses reasonably incurred, for a period of one year from the
Effective Date or until the Executive has purchased and has occupied with
Executive's family a home in the greater San Francisco or San Jose area,
whichever is earlier, in connection with (x) travel between Executive's home in
Los Angeles and NEWCO's principal offices, and (y) local lodging expenses not
otherwise accounted for in (i) above, and (v) Executive's reasonable legal fees
and costs incurred in connection with the drafting, negotiation and execution of
this Agreement. All benefits described in the foregoing (i), (ii), (iv) and (v)
that are reportable as earned or unearned income will be "grossed up" by NEWCO
in connection with federal and state tax obligations to provide Executive with
appropriate net tax coverage so that the benefits received by the Executive from
the foregoing clauses (i), (ii), (iv) and (v) shall be net of income and
employment taxes thereon. NEWCO reserves the right to modify or terminate from
time to time the fringe benefits provided to the senior management group,
provided that the fringe benefits provided to the Executive shall not be
materially reduced on an overall basis during the Employment Period and provided
further that the benefits provided in clauses (i) through (v) above shall not be
reduced at all. Notwithstanding the foregoing, until such time as NEWCO shall
implement group health, dental and disability insurance plans for its
executives, or for a period of one year following the Combination, whichever is
less, Executive will be entitled to participate in the group health, dental, and
disability insurance plans made available to the senior management group of OCV
immediately prior to the Effective Date.
(d) [Intentionally omitted]
(e) Stock Options. NEWCO hereby grants to Executive as of the
Effective Date, options ("Options") to purchase 1,041,562 shares of NEWCO's
common stock, par value $0.01 per share (the "Common Stock"). NEWCO will use its
best efforts to register the shares of Common Stock underlying the Options by
filing and exercising best efforts to make and keep effective for the entire
period of exercise of the Options, a Registration Statement on the pertinent
form within a reasonable period of time after the Combination. The Options shall
be exercisable in the following amounts at the following per-share prices: (i)
eighty percent (80%) of the Options (833,250 shares) shall be exercisable at a
per-share price of $15.33 and (ii) twenty percent (20%) of the Options (208,312
shares) shall be exercisable at a per-share price of $17.63; provided, however,
that if the average of the daily high and low bid prices of the Common Stock on
the NASDAQ Stock Exchange for the twenty trading days following the third
trading day after NEWCO's public release of financial results for the third
quarter of 1996 is less than $17.63, then the exercise price shall be such
average. The Options shall be exercisable by the Executive according to the
following schedule:
(i) with respect to 25% of the Option shares on or after
the commencement of the second year of the Employment Period;
(ii) with respect to an additional 25% of the Option
shares on or after the commencement of the third year of the Employment Period;
and
(iii) with respect to an additional 50% of the Option shares
on or after the commencement of the fourth year of the Employment Period.
Notwithstanding the foregoing, 100% of the Options shall immediately vest and
become immediately exercisable, without any further action by the Executive,
upon the occurrence of any "NEWCO change of control" or a "Change of Control
Event," each as defined in Section 7(a) below, or upon the occurrence of any
event that results in NEWCO's Common Stock no longer being traded on any of the
New York Stock Exchange, American Stock Exchange or NASDAQ National Market
System (including, without limitation, as a result of any "going private"
transaction with Ascent). The Options, to the extent they remain unexercised,
shall automatically and without further notice terminate and become of no
further force and effect at the time of the earliest of the following to occur:
(x) Three months after the date upon which a
termination for cause by NEWCO (as provided in Section 5(b)) shall have become
effective and final; or
(y) Ten years after the Effective Date.
The Options shall have anti-dilution provisions identical to those
contained in the Warrant Agreement between NEWCO and the Warrant Agent related
to the Warrants, except (i) for anti-dilution provisions, if any, related to
sales of Common Stock of NEWCO to non-affiliates, and (ii) there shall be no
adjustment for dividends or distributions of cash or assets unless the aggregate
amount thereof exceeds 15% of the fair market value per share, rather than the
5% provided in the Warrant Agreement, and the Options shall additionally contain
provisions permitting Executive's cashless exercise thereof by paying the
exercise price through the delivery of Options valued at the difference between
the exercise price of the Options delivered and the market value of the shares
of Common Stock underlying such Options. The Options shall be represented by a
stock option agreement between Executive and NEWCO containing only terms
consistent in all material respects with the provisions of this Agreement, which
stock option agreement shall be prepared by NEWCO and presented for Executive's
review at least ten (10) business days prior to the Effective Date, shall
otherwise qualify under Rule 16b-3 of the Securities and Exchange Commission,
and may be included under a Stock Option Plan adopted by NEWCO, which shall not
alter the terms herein related to the option or the Option shares. In addition,
if NEWCO adopts a stock option plan that in Executive's sole judgment provides
for any term(s) more favorable to the grantee than any term(s) set forth above,
Executive will be entitled to the benefit of such more favorable term(s) with
respect to the Options, other than with respect to the vesting schedule thereof,
but in no event will any term(s) applicable to the Options be less favorable to
Executive than those set forth above.
During the Employment Period, the Executive may be granted additional
non-statutory stock options but only as determined by the Compensation Committee
in its sole discretion, provided that the Executive acknowledges that he has
been advised by NEWCO that it is NEWCO's current intention not to issue any
additional options to the Executive during the three year period following the
Effective Date. Notwithstanding any other provision of this Agreement except
Section 5(b), the Compensation Committee may provide in its discretion that any
stock options granted to the Executive which have not vested prior to his
termination of employment shall continue to vest in accordance with their
original terms as if the Executive's employment had not terminated.
(f) Ascent Benefits. After the Effective Date, the Executive shall
cease to participate in Ascent's Non-Employee Directors Stock Plan, and shall
forfeit any and all rights and interests under such plan; provided, however,
that the Executive shall retain the stock options and stock awards previously
granted to him thereunder, which shall continue to vest in accordance with their
original terms as long as the Executive remains employed by NEWCO or is a member
of the Ascent Board of Directors.
(g) Consulting Compensation. If the Executive is still employed by
NEWCO on the date preceding the fourth anniversary of the Effective Date, and if
by such date the Executive and NEWCO have not executed a written agreement for
an additional term of employment, then the Employment Period shall expire and,
in addition to and without limitation of any rights of either party under this
Agreement or otherwise, NEWCO shall retain the Executive as a non-exclusive
consultant and, as compensation for such consulting services, shall pay the
Executive an amount equal to twenty-five percent (25%) of his then current Base
Salary for an additional period of twelve (12) months (the "Consulting Period"),
and during the Consulting Period the Executive shall continue to receive Fringe
Benefits (as defined below), and to vest in any employee stock options
previously awarded to the Executive, but the Executive shall not be entitled to
receive any Base Salary increases, bonuses, or further awards of stock options.
Without limiting any of the Executive's other rights under this Agreement or
otherwise, if the Executive is still employed by NEWCO on the date preceding the
fourth anniversary of the Effective Date and is retained as a consultant and is
entitled to the compensation and benefits set forth in the immediately preceding
sentence, then such compensation and benefits shall constitute the Executive's
sole compensation resulting from the expiration of this Agreement, and the
Executive waives any claims to any additional compensation other than as a
result of NEWCO's breach of this Agreement.
(h) Performance-Based Compensation; Conflicting Provisions. The
parties agree to use their best efforts in the administration of this Agreement
to take actions so as to comply with the requirements of Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code") to ensure, to the extent
possible consistent with the other terms of this Agreement and the Options, the
Federal tax deductibility under that section of compensation paid to the
Executive pursuant to performance-based compensation. Solely to the extent of
any conflict between the provisions of this Agreement and the provisions of any
agreement between Executive, on the one hand, and Ascent, NEWCO and/or any
affiliated or related entity of either of them, on the other hand, relating to
stock options (including the Options), life insurance, health insurance, any
other employee equity participation, profit sharing or retirement plan, group
health plan or other employee benefits (individually and collectively, together
with the Ascent stock awards, referred to herein as the "Fringe Benefits"), the
provisions of this Agreement will control.
3. Trade Secrets; Return of Documents and Property.
(a) Executive acknowledges that during the course of his employment
he will receive secret, confidential and proprietary information ("Trade
Secrets") of NEWCO and of other companies with which NEWCO does business on a
confidential basis and that Executive will create and develop Trade Secrets for
the benefit of NEWCO. Trade Secrets shall include, without limitation, (a)
literary, dramatic or other works, screenplays, stories, adaptations, scripts,
treatments, formats, scenarios, characters, titles of any kind and any rights
therein, "know-how," formulae, secret processes or machines, inventions,
computer programs (including documentation of such programs) (collectively,
"Technical Trade Secrets") and (b) matters of a business nature, such as
customer data and proprietary information about costs, profits, markets and
sales, customer databases, and other information of a similar nature to the
extent not available to the public, and plans for future development
(collectively, "Business Trade Secrets"). All Trade Secrets disclosed to or
created by Executive shall be deemed to be the exclusive property of NEWCO (as
the context may require). Executive acknowledges that Trade Secrets have
economic value to NEWCO due to the fact that Trade Secrets are not generally
known to the public or the trade and that the unauthorized use or disclosure of
Trade Secrets is likely to be detrimental to the interests of NEWCO and its
subsidiaries. During the Employment Period, Executive therefore agrees to hold
in strict confidence and not to disclose to any third party any Trade Secret
acquired or created or developed by Executive during the term of the Employment
Period except (i) when Executive is required to use or disclose any Trade Secret
in the proper course of the Executive's rendition of services to NEWCO
hereunder, (ii) when such Trade Secret becomes public knowledge other than
through a breach of this Agreement, or (iii) when Executive is required to
disclose any Trade Secret pursuant to any valid court order in which the
Executive is compelled to disclose such Trade Secret. The Executive shall notify
NEWCO immediately of any such court order in order to enable NEWCO to contest
such order's validity. For a period of two (2) years after termination of the
Employment Period for all Business Trade Secrets and for a period of five (5)
years after termination of the Employment Period for all Technical Trade
Secrets, the Executive shall not use or otherwise disclose Trade Secrets unless
such information (x) becomes public knowledge or is generally known in any
industry in which NEWCO conducts business among executives comparable to the
Executive other than through a breach of this Agreement, (y) is disclosed to the
Executive by a third party who is entitled to receive and disclose such Trade
Secret, or (z) is required to be disclosed pursuant to any valid court order, in
which case the Executive shall notify NEWCO immediately of any such court order
in order to enable NEWCO to contest such order's validity.
(b) Upon the effective date of notice of the Executive's or NEWCO's
election to terminate this Agreement, or at any time upon the request of NEWCO,
the Executive (or his heirs or personal representatives) shall deliver to NEWCO
(i) all documents and materials containing or otherwise relating to Trade
Secrets or other information relating to NEWCO's business and affairs, and (ii)
all other documents, materials and other property belonging to NEWCO, which in
either case are in the possession or under the control of the Executive (or his
heirs or personal representatives). The Executive shall be entitled to keep his
personal records relating to NEWCO's business and affairs except to the extent
those contain documents or materials described in clause (i) or (ii) of the
preceding sentence, in which case Executive may retain copies for his personal
and confidential use.
4. Discoveries and Works. All discoveries and works made or conceived by
the Executive during his employment by NEWCO pursuant to this Agreement, jointly
or with others, that relate to NEWCO's activities ("Discoveries and Works")
shall be owned by NEWCO, it being understood that the Discoveries and Works
referred to in this paragraph are limited to those that are made, disclosed,
reduced to tangible or written form or description, or are reduced to practice
by the Executive in the course of his performing services for NEWCO. Discoveries
and Works shall include, without limitation, literary, dramatic or other works,
screenplays, stories, adaptations, scripts, treatments, formats, scenarios,
characters, titles of any kind and any rights therein, other works of
authorship, inventions, computer programs (including documentation of such
programs), technical improvements, processes and drawings. The Executive shall
(i) promptly notify, make full disclosure to, and execute and deliver any
documents reasonably requested by, NEWCO to evidence or better assure title to
such Discoveries and Works in NEWCO, (ii) assist NEWCO in obtaining or
maintaining for itself at its own expense United States and foreign copyrights,
trade secret protection or other protection of any and all such Discoveries and
Works, and (iii) promptly execute, whether during his employment by NEWCO or
thereafter, all applications or other endorsements necessary or appropriate to
maintain copyright and other rights for NEWCO and to protect their title
thereto. Any Discoveries and Works which, within sixty days after the
termination of the Executive's employment by NEWCO, are made, disclosed, reduced
to a tangible or written form or description, or are reduced to practice by the
Executive and which pertain to work performed by the Executive while with NEWCO
shall, as between the Executive and NEWCO be presumed to have been made during
the Executive's employment by NEWCO.
5. Termination. During the Employment Period, Executive's employment
with NEWCO may be terminated only as follows:
(a) By the Executive (an "Executive Election") at any time upon
sixty (60) days advance written notice to NEWCO upon an "Executive Election
Event" (as defined below). In such event or if the Executive's employment is
terminated by NEWCO without "cause" (as defined below), there will be no
forfeiture, penalty, reduction or other adverse effect upon any rights or
interests relating to any Fringe Benefits, all of which will fully vest, to the
extent not previously vested, immediately upon such termination becoming
effective and final. Without limiting the foregoing, in the event of an
Executive Election or if the Executive's employment is terminated without
"cause," the Executive shall be entitled to receive the following benefits
through the longer of (A) the remainder of the Employment Period as if this
Agreement had remained in effect until the end of the Employment Period and (B)
one year following the date of such termination (the "Duration Period"): (i) his
then current Base Salary; (ii) an Annual Bonus equal to seventy percent (70%) of
his then current Base Salary for each year during the Duration Period; and (iii)
all other benefits provided pursuant to Sections 2(c), (d) and (e) of this
Agreement. The Executive shall have no obligation to seek other employment in
the event of his termination pursuant to this paragraph (a), provided, however,
that his compensation from any such employment obtained shall offset up to fifty
percent (50%) of NEWCO's obligations under clauses (i) and (ii) above, but only
after payments pursuant to clauses (i) and (ii) are made with respect to a one
year period following termination. NEWCO shall have the option at any time
during the Duration Period, after prior written notice to the Executive, to pay
to the Executive in a lump sum the net present value, assuming a discount rate
equivalent to the yield to maturity of United States Treasury Bonds maturing on
the same date as the end of the Duration Period, of the amounts remaining under
clauses (i) and (ii) of this paragraph (a), and the amount of such lump sum
payment shall be reduced by compensation actually paid or payable to the
Executive from other employment for the time period remaining on NEWCO's payment
obligation under this Agreement at the time such payment is made on the basis
set forth in the preceding sentence. If NEWCO pays such lump sum, NEWCO shall
have no further compensation payment obligations under clauses (i) and (ii)
above. The Executive shall have the right to instruct NEWCO to decrease any such
payment or other benefit due under this paragraph (a) to an amount not to exceed
an amount to be designated by the Executive in writing for the purpose of
providing that such payment (together with any other benefits provided to the
Executive) shall not constitute a "parachute payment" as defined in Section 280G
of the Code; provided, however, that NEWCO's agreement to decrease such payment
shall not result in any liability from NEWCO to the Executive with respect to
any excise tax under Section 4999 of the Code (or any similar state or local
provision), or any penalties or interest with respect to such excise tax. NEWCO
shall place an amount equivalent to its obligations owed to the Executive in
connection with this Section 5(a) in an escrow account to be administered by an
unrelated third party, or shall provide some other comparable form of security
(e.g., an irrevocable letter of credit) for such obligations reasonably
acceptable to the Executive. In all circumstances of termination under this
Section 5(a), NEWCO shall remain obligated under clause (iii) and all stock
options (including the Option) will remain exercisable for the maximum period
provided in each applicable grant.
An "Executive Election Event" shall be any of the following: (I) any
change in the reporting structure set forth in Section 1(b) above; (II) any
requirement that the Executive perform material services of lesser stature than
those typically performed by the president and CEO of comparably sized
companies; (III) any reduction in Executive's title; (IV) a "Change of Control
Event" (as defined in Section 7(a) below); provided that in such event, the 50%
offset from subsequent employment set forth in the preceding paragraph shall be
increased to 100% and such offset shall apply during the first year after
termination as well; (V) any other material default of this Agreement which
continues for ten (10) business days following NEWCO's receipt of written notice
from the Executive specifying the manner in which NEWCO is in default of this
Agreement; (VI) the Board's requiring Executive to be based at any office
location other than the principal offices of NEWCO, or the relocation, without
Executive's consent, of such principal offices to a location outside the greater
San Francisco and San Jose areas prior to the second anniversary of the
Effective Date; (VII) any purported termination of Executive's employment
otherwise than as expressly permitted by the Agreement; or (VIII) an action by
the Board, without the prior written consent of the Executive, which results in
NEWCO materially diminishing the scope or magnitude of those operations in which
it is expected to engage immediately following the Combination.
(b) By NEWCO at any time for "cause." For purposes of this
Agreement, NEWCO shall have "cause" to terminate the Executive's employment
hereunder upon (i) the continued and deliberate failure of the Executive to
perform those material duties reasonably prescribed by the Board and in
accordance with the terms of this Agreement (other than any such failure
resulting from his incapacity due to physical or mental illness), which failure
continues for ten (10) business days following the Executive's receipt of
written notice from the Board specifying those duties which the Executive is so
failing to perform, (ii) the engaging by the Executive in intentional serious
misconduct that is materially and demonstrably injurious to NEWCO or its
reputation, which misconduct, if it is reasonably capable of being cured, is not
cured by the Executive within ten (10) business days following the Executive's
receipt of written notice from the Board specifying the serious misconduct
engaged in by the Executive, (iii) the conviction of the Executive of commission
of a felony involving a crime of moral turpitude, whether or not such felony was
committed in connection with NEWCO's business, or (iv) any material breach by
the Executive of Section 8 hereof. If NEWCO shall terminate the Executive's
employment for "cause," there will be no forfeiture, penalty, reduction or other
adverse effect upon any vested rights or interests relating to any Fringe
Benefits. In such event, NEWCO, in full satisfaction of all of NEWCO's
obligations under this Agreement and in respect of the termination of the
Executive's employment with NEWCO, shall pay the Executive his Base Salary, a
prorated Annual Bonus and all other compensation, benefits and reimbursement
through the date of termination of his employment, provided that the Option and
any other stock options granted to the Executive under the NEWCO option or any
successor plan or under Ascent's Non-Employee Director Stock Plan shall
terminate three months after the date of termination of his employment for
"cause".
6. Disability; Death.
(a) If, prior to the expiration or termination of the Employment
Period, the Executive shall be unable to perform substantially his duties by
reason of disability or impairment of health for at least six consecutive
calendar months, NEWCO shall have the right to terminate Executive's employment
by giving sixty (60) days written notice to the Executive to that effect, but
only if at the time such notice is given such disability or impairment is still
continuing. Following the expiration of the notice period, (i) the Employment
Period shall terminate with the payment of the Executive's Base Salary for the
month in which notice is given and a prorated Annual Bonus through such month,
(ii) there will be no forfeiture, penalty, reduction or other adverse effect
upon any vested rights or interests relating to any Fringe Benefits and (iii)
the Option shall vest in its entirety and shall remain exercisable for its full
term as if the Executive had not become disabled, notwithstanding the
limitations of Section 2(e) of this Agreement. In the event of a dispute as to
whether the Executive is disabled within the meaning of this paragraph (a), or
the duration of any disability, either party may request a medical examination
of the Executive by a doctor appointed by the Chief of Staff of a hospital
selected by mutual agreement of the parties, or as the parties may otherwise
agree, and the written medical opinion of such doctor shall be conclusive and
binding upon the parties as to whether the Executive has become disabled and the
date when such disability arose. The cost of any such medical examinations shall
be borne by NEWCO.
(b) If, prior to the expiration or termination of the Employment
Period, the Executive shall die, NEWCO shall pay to the Executive's estate his
Base Salary and a prorated Annual Bonus through the end of the month in which
the Executive's death occurred, at which time the Employment Period shall
terminate without further notice and there will be no forfeiture, penalty,
reduction or other adverse effect upon any vested rights or interests relating
to any Fringe Benefits; provided that upon the Executive's death the Option and
any other stock options granted to the Executive under the NEWCO option plan or
any successor plan shall become fully vested and shall terminate one year after
the date of termination of the Executive's employment for death, notwithstanding
the limitations of Section 2(e) of this Agreement.
(c) Nothing contained in this Section 6 shall impair or otherwise
affect any rights and interests of the Executive under any compensation plan or
arrangement of NEWCO which may be adopted by the Board.
7. Change of Control.
(a) If, prior to the termination of the Employment Period, there is
a "Change of Control Event" (as hereinafter defined in this paragraph (a)), the
Executive shall have the right to exercise his Executive Election in accordance
with Section 5(a), but shall not have the right to give notice in accordance
with Section 5(a) in any event later than 120 days following such Change of
Control Event. Prior to any "change of control" (as hereinafter defined in this
paragraph (a)), and from time to time thereafter at the Executive's request upon
relevant changed circumstances in the ownership or management of NEWCO, the
Executive and the Board will mutually determine whether such "change of control"
or changed circumstances would be reasonably likely to have a materially
detrimental effect on the condition, reputation or future prospects of NEWCO or
its successor entity, the day-to-day circumstances of the Executive's employment
or the compensation payable to the Executive hereunder. An affirmative
determination with respect to any of the foregoing by the Executive and the
Board, or by an arbitrator as provided below, shall be referred to herein as a
"Change of Control Event", it being agreed that the arbitrator shall award the
Executive costs and attorneys' fees under Section 11(c) if the Executive has
submitted the matter to arbitration with a reasonable basis for doing so, even
if the Executive is not the prevailing party therein. If the Executive and the
Board are unable to agree on such determination, the Executive shall have the
right: (i) to submit to arbitration pursuant to Section 11 below the
determination of whether the "change of control" or changed circumstances would
be reasonably likely to have any of the materially detrimental effects mentioned
above, and an affirmative determination by the arbitrator shall constitute a
"Change of Control Event"; (ii) to accept continued employment with NEWCO or its
successor entity on the terms of this Agreement; or (iii) to terminate his
employment by giving sixty (60) days written notice to NEWCO to that effect. If
the Executive elects to terminate his employment pursuant to clause (iii) of
this paragraph (a), following the expiration of the notice period provided
therein, the Employment Period shall terminate with the payment of the
Executive's Base Salary for the month in which notice is given. "Change of
control" for purposes of this paragraph (a) shall mean either, any event as a
result of which a single third party, or "group" as defined in Rule 13d-3 of the
Securities Exchange Act of 1934, as amended, other than Ascent or its affiliates
owns more than fifty percent (50%) of the voting stock of NEWCO (a "NEWCO change
of control"), or, any event as a result of which a single third party, or
"group" (as defined above) other than COMSAT Corporation or its affiliates
directly or indirectly owns more than fifty percent (50%) of Ascent.
(b) In the event that NEWCO adopts any "change of control"
provisions applicable to any NEWCO benefits plans, respectively, providing for
the accelerated vesting and/or payment of any benefits for its senior management
group, to the extent that such provisions give Executive greater rights than
those provided in paragraph (a) above, such provisions shall apply to the
Executive to the same extent as other NEWCO senior executives on a favored
nations basis with respect to the benefits affected by such NEWCO provisions.
8. Non-Competition.
(a) As an inducement for NEWCO to enter into this Agreement, the
Executive agrees that for a period commencing as of the Effective Date and
running through the earlier of (i) the end of the Employment Period if the
Executive remains employed by NEWCO for the entire Employment Period or (ii) one
year following termination of the Executive's employment by NEWCO for "cause" as
defined in Section 5(b) hereof, or by the Executive for any reason (other than
an Executive Election Event or an event described in Section 7(a)(iii) above, in
which case the provisions of this paragraph (a) shall not apply) (the
"Non-Competition Period"), the Executive shall not, without the prior written
consent of the Board, undertake employment or services for a company engaged in
a business which is or has publicly announced its intention to become directly
competitive with the business then being primarily conducted by NEWCO, with
respect to any geographic area in which NEWCO then engages in such business, if
the loyal and complete fulfillment of the duties of the competitive employment
or services would call upon Executive to reveal, to make judgments on or
otherwise to use Trade Secrets of NEWCO (as defined in Section 3 above) to which
Executive had access by reason of his employment by NEWCO.
(b) Non-Solicitation of Employees. During the Non-Competition
Period, the Executive will not (for his own benefit or for the benefit of any
person or entity other than NEWCO) solicit, or assist any person or entity other
than NEWCO to solicit, any officer, director, executive or employee (other than
an administrative or clerical employee) of NEWCO to leave his or her employment.
(c) Reasonableness; Interpretation. The Executive acknowledges and
agrees, solely for purposes of determining the enforceability of this Section 8
(and not for purposes of determining the amount of money damages or for any
other reason), that (i) the markets served by NEWCO are national and
international and are not dependent on the geographic location of executive
personnel or the businesses by which they are employed; (ii) the length of the
Non-Competition Period is linked to the term of the Employment Period and the
severance benefit provided for in Section 5(a); and (iii) the above covenants
are manifestly reasonable on their face, and the parties expressly agree that
such restrictions have been designed to be reasonable and no greater than is
required for the protection of NEWCO. In the event that the covenants in this
Section 8 shall be determined by any court of competent jurisdiction in any
action to be unenforceable by reason of their extending for too great a period
of time or over too great a geographical area or by reason of their being too
extensive in any other respect, they shall be interpreted to extend only over
the maximum period of time for which they may be enforceable, and/or over the
maximum geographical area as to which they may be enforceable and/or to the
maximum extent in all other respects as to which they may be enforceable, all as
determined by such court in such action.
(d) Investment. Nothing in this Agreement shall be deemed to
prohibit the Executive from owning equity or debt investments in any
corporation, partnership or other entity which is competitive with NEWCO,
provided that such investments (i) are passive investments and constitute five
percent (5%) or less of the outstanding equity securities of such an entity the
equity securities of which are traded on a national securities exchange or other
public market, or (ii) are approved by the Board.
9. Indemnification; Liability Insurance. The Executive shall be entitled
to indemnification and coverage under NEWCO's liability insurance policy for
directors and officers to the same extent as other directors and officers of
NEWCO. During and after the term of employment, NEWCO hereby agrees to indemnify
and hold Executive harmless against any and all claims arising from or in
connection with his employment by or service to NEWCO to the full extent
permitted by law and, in connection therewith, to advance the expenses of
Executive incurred in defending against such claims subject to such limitations
as may actually be required by law.
10. Enforcement; Joint and Several Liability. The Executive acknowledges
that a breach of the covenants or provisions contained in Sections 3, 4 and 8 of
this Agreement will cause irreparable damage to the Business and NEWCO, the
exact amount of which will be difficult to ascertain, and that the remedies at
law for any such breach will be inadequate. Accordingly, the Executive agrees
that if the Executive breaches or threatens to breach any of the covenants or
provisions contained in Sections 3, 4 and 8 of this Agreement, in addition to
any other remedy which may be available at law or in equity, NEWCO shall be
entitled to seek specific performance and injunctive relief.
11. Arbitration. (a) Subject to NEWCO's right to enforce Sections 3, 4 and
8 hereof by an injunction issued by a court having jurisdiction (which right
shall prevail over and supersede the provisions of this Section 11), any dispute
relating to this Agreement, including the enforceability of this Section 11,
arising between the Executive and NEWCO shall be settled by arbitration which
shall be conducted in the greater San Francisco and San Jose, California area,
or any other location where the Executive then resides at NEWCO's request,
before a single arbitrator in accordance with the commercial arbitration rules
of the American Arbitration Association ("AAA"). Within 90 days after the
Effective Date, the parties shall mutually agree upon three possible
arbitrators, one of whom shall be selected by the AAA within 2 days after notice
of a dispute to be arbitrated under this Section 11. The parties shall instruct
the arbitrator to use his or her best efforts to conclude the arbitration within
60 days after notice of the dispute to AAA.
(b) The award of any such arbitrator shall be final. Judgment upon
such award may be entered by the prevailing party in any federal or state court
sitting in the greater San Francisco and San Jose, California area or any other
location where the Executive then resides at NEWCO's request.
(c) Subject to Section 7(a), the parties will bear their own costs
associated with arbitration and will each pay one-half of the arbitration costs
and fees of AAA; however, the arbitrator may in his sole discretion determine
that the costs of the arbitration proceedings, including attorneys' fees, shall
be paid entirely by one party to the arbitration if the arbitrator determines
that the other party is the prevailing party in such arbitration.
12. Severability. Should any provision of this Agreement be determined to
be unenforceable or prohibited by any applicable law, such provision shall be
ineffective to the extent, and only to the extent, of such unenforceability or
prohibition without invalidating the balance of such provision or any other
provision of this Agreement, and any such unenforceability or prohibition in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13. Assignment. The Executive's rights and obligations under this
Agreement shall not be assignable by the Executive. NEWCO's rights and
obligations under this Agreement shall not be assignable by NEWCO except as
incident to the transfer, by merger or otherwise, of all or substantially all of
the business of NEWCO. In the event of any such assignment by NEWCO, all rights
of NEWCO hereunder shall inure to the benefit of the assignee.
14. Notices. All notices and other communications which are required or
may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when received if personally delivered; when transmitted if
transmitted by telecopy, electronic or digital transmission method, provided
that in such case it shall also be sent by certified or registered mail, return
receipt requested; the day after it is sent, if sent for next day delivery to a
domestic address by recognized overnight delivery service (e.g., Federal
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. Unless otherwise changed by notice, in each case notice shall
be sent to:
If to Executive, addressed to:
Robert M. Kavner
331 S. Cliffwood
Los Angeles, CA 90049
With a copy to:
Robert Adler, Esq.
Munger, Tolles & Olson
355 South Grand Ave.
35th Floor
Los Angeles, CA 90071
Telecopier No. (213)687-3702
If to NEWCO, addressed to:
On Command Corporation c/o
Ascent Entertainment Group, Inc.
1200 Seventeenth Street
Denver, CO 80202
Attention: Charlie Lyons
Telecopier No. (303) 595-0823
<PAGE>
With a copy to:
Ascent Entertainment Group, Inc.
1200 Seventeenth Street
Denver, CO 80202
Attention: Arthur M. Aaron, Esq.
Telecopier No. (303) 595-0127
15. Miscellaneous. This Agreement constitutes the entire agreement, and
supersedes all prior agreements, of the parties hereto relating to the subject
matter hereof, and there are no written or oral terms or representations made by
either party other than those contained herein. No amendment, supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. The validity, interpretation,
performance and enforcement of the Agreement shall be governed by the laws of
the State of California. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
/THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK/
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
October 10, 1996.
/s/_____________________________
Robert M. Kavner, Executive
ON COMMAND CORPORATION
By:___________________________
Title:
Exhibit 10.4 to
Form 10-Q
SECOND AMENDMENT TO DEVELOPMENT, PRODUCTION AND
DOMESTIC DISTRIBUTION AGREEMENT
This Second Amendment to Development, Production and Domestic Distribution
Agreement ("Amendment") is entered into as of July 22, 1996 between Beacon
Communications Corp. ("Beacon") and Sony Pictures Entertainment, Inc. ("SPE")
and amends that certain Development, Production and Domestic Distribution
Agreement ("Agreement") between the parties dated as of April 15, 1993, as
amended.
Unless otherwise noted, all terms defined in the Agreement shall have the same
meanings in this Amendment.
1. Acquisition Term. Paragraph 1(a) of the Agreement is amended to
provide that the "Acquisition Term" shall end on August 31, 1996.
2. Overhead Reimbursement for "Playing God." Notwithstanding any contrary
provision of Paragraph 13(b) of the Agreement, Beacon shall
Overhead Reimbursement to SPE with respect to motion picture entitled "Playing
God."
3. Overhead Reimbursement - "AFO." Notwithstanding any contrary provision
of the Agreement, SPE shall be entitled to recoup
of "Unrecouped Overhead" (in lieu of
) under Paragraph 9(b)(i)(c) of the Agreement in connection with the Picture
tentatively entitled "AFO," which has been acceptedby SPE for co-financing and
distribution under the Agreement.
4. Unproduced Projects at End of Acquisition Term. Paragraph 18(a) of the
Agreement is modified as follows: Beacon shall furnish to SPE a preliminary list
of Developed Projects, containing the information and documentation required by
Paragraph 18(a) of the Agreement, immediately following the date of this
Amendment and shall furnish SPE with a final list of Developed Projects,
including all information and documentation required under Paragraph 18(a) of
the Agreement, as soon as practicable after August 31, 1996, but in no event
later than 30 days after such date.
<PAGE>
b. Further Development of Projects Accepted by SPE. Paragraph
18.C(ii) shall be deleted and replaced with the following:
"(A) Joint Development Projects. If SPE accepts a Developed Project for
joint development (a "Joint Development Project"), SPE shall pay to Beacon
an amount equal to
of all previously incurred development costs for such
Developed Project, and
of going forward development costs on such project
(with the balance of such costs to be paid by Beacon) until such time, if
ever, as SPE or Beacon elects to abandon further development of such Joint
Development Project. Beacon and SPE shall co-own all rights (including the
copyright) in and to each such project and Beacon shall execute such
documents as may be necessary to reflect and perfect SPE's co-ownership.
(B) Control of Further Development. Beacon shall control the further
development of each Joint Development Project in the same manner as
Pictures developed during the Acquisition Term. Beacon shall consult fully
and meaningfully with SPE on an on-going basis regarding the development
of all Joint Development Projects (including full consultation, in
advance, as to creative direction and with respect to each and every
proposed spending commitment with respect to each Joint Development
Project), with Beacon's decision being final.
(C) Abandonment by SPE. If at any time SPE gives Beacon written notice of
SPE's election to abandon any Joint Development Project, Beacon shall have
no further obligation to SPE with respect to such Joint Development
Project, and SPE shall have no further obligation to fund further
development costs with respect to such Joint Development Project. SPE
shall quitclaim its interest in such abandoned Joint Development Project
to Beacon, subject to a first priority lien to secure reimbursement of
SPE's investment with respect to such Joint Development Project plus
interest thereon, payable in full upon commencement of principal
photography of such Joint Development Project by Beacon or a third party.
(D) Abandonment by Beacon. If at any time Beacon elects to abandon further
development of any Joint Development Project, Beacon shall give SPE
written notice thereof. If within 30 days thereafter SPE gives Beacon
written notice of SPE's desire to continue developing such Joint
Development Project, Beacon shall quitclaim such Joint Development Project
to SPE (prior to putting the project into turnaround or reversion to any
third party). Beacon shall have no obligation to fund further development
costs and SPE shall have no further obligation to Beacon with respect to
such Joint Development Project, provided that Beacon shall have a first
priority lien to secure reimbursement of Beacon's
<PAGE>
investment with respect to such Joint Development Project plus interest
thereon, payable in full upon commencement of principal photography of the
applicable Joint Development Project by SPE or a third party.
(E) Submission by Beacon. At such time, if ever, as Beacon deems any Joint
Development Project to be ready for production and the required elements
are known, Beacon shall submit such Joint Development Project to SPE for
possible co-financing and distribution by SPE pursuant to the terms of
this Agreement, notwithstanding the expiration of the Acquisition Term.
SPE shall have no obligation to accept any Picture for co-financing and/or
distribution (i.e. there shall be no "puts") after the expiation of te
Acquisition Term. If SPE accepts (i.e. agrees to co-finance and
distribute) a Joint Development Project submitted by Beacon for
co-financing and distribution under the Agreement, Beacon shall produce
and co-finance and SPE shall co-finance and distribute such Picture (and
the revenues from such distribution shall be applied) in the same manner
as a Picture submitted under this Agreement during the Acquisition Term.
If SPE rejects a Joint Development Project submitted by Beacon for
possible co-financing distribution, all rights in such Joint Development
Project shall be owned by Beacon (and SPE shall quitclaim its interest
therein to SPE), subject to Beacon's obligation (secured by a first
priority lien, which shall be subordinate only to prior development liens,
if any) to repay SPE an development costs advanced b SPE if and when the
Picture is accepted by a third party for further development, production
or distribution and subject to subparagraph 18(3) below.
5. Limitation on Post Term Overhead Recoupment. Paragraph 18(e)
shall be deleted and replaced by the following:
"SPE shall be entitled to receive the sum of
as a reimbursement for Unrecouped Overhead, with respect to the
motion picture entitled "A Thousand Acres" and the sum of
as a reimbursement for Unrecouped Overhead, with respect to the first
motion picture co-financed and distributed by SPE after the end of the
Acquisition Term based upon a Developed Project. With respect to the first
Picture based upon Joint Development Projects which are co-financed and
distributed by SPE, SPE shall recoup such amount in the manner provided
for in Paragraph 9(b)(i)(c) of the Agreement. With respect to "A Thousand
Acres" such
shall be payable on commencement of principal photography
<PAGE>
thereof (such obligation to be secured by a first priority lien, which
shall be subordinate only to prior development liens, if any)."
SONY PICTURES ENTERTAINMENT, INC.
By: /s/ Jared Jessum
Its: Executive Vice President, Legal Affairs
BEACON COMMUNICATIONS CORP.
By: /s/ Thomas Bliss
Its: Executive Vice President
Exhibit 10.5 to
Form 10-Q
MCA
UNIVERSAL CITY STUDIOS, INC., 100 UNIVERSAL CITY PLAZA, UNIVERSAL CITY,
CALIFORNIA 91608
as of July 10, 1996
Armyan Bernstein, Chairman
BEACON PICTURES
c/o Warner-Hollywood Studios
1041 N. Formosa Avenue
Hollywood, CA 90046
Dear Armyan:
This letter sets forth the basic terms of the agreement reached between
Universal Pictures, a division of Universal City Studios, Inc. ("Universal"),
and Beacon Pictures ("Beacon"), with respect to the acquisition by Universal of
exclusive distribution rights to all theatrical motion pictures produced by
Beacon.
1. TERM: Five (5) years commencing on September 1, 1996 ("Term").
2. PICTURES: Beacon will deliver to Universal and Universal will
accept up to twenty (20) theatrical motion pictures during the
Term (individually "Picture" and collectively "Pictures"), but
Universal will not be obligated to accept delivery of more than
four (4) Pictures per year, and each Picture must conform to
Universal's customary production specifications (including,
without limitation, MPAA rating, running time, cover shots for
television and other versions, compliance with laws, timely
delivery and delivery requirements). With respect to running
time requirements, each Picture must have a running time of not
less than ninety (90) minutes and not more than one hundred
twenty (120) minutes (exclusive of main and end titles);
provided, however, that not more than once per year Universal
will consider increasing the running time for a Picture directed
by a director who has previously been accorded final cutting
rights by a major studio, and on an occasional basis during the
Term, Universal will consider Beacon's request to increase a
Picture's running time due to the Picture's scope and/or subject
matter. Universal will only be obligated to accept Pictures
which commence principal photography during the Term; provided,
however, that in no event will Universal be obligated to accept
a Picture which is delivered more than one (1) year after the
conclusion of the Term. Attached hereto as Exhibit "1" is a
list of theatrical motion pictures (for which the distribution
rights for the Territory [as defined below] are owned or
controlled by a third party) which shall be deemed excluded from
this agreement.
3. PRODUCER SERVICES: Armyan Bernstein must actually and actively
render producing services on each Picture (it being acknowledged
that the parties contemplate Beacon delivering four (4) Pictures
per year to Universal, each of which will be produced by Mr.
Bernstein), and must receive appropriate producer or executive
producer in connection with each Picture. If at any time, for
any reason, Mr. Bernstein ceases or fails to render producer
services on a Picture, or becomes incapable of rendering
producer services on future pictures, or is no longer an
employee or principal of Beacon, Universal shall have the right
in its sole discretion to terminate this agreement.
4. DISTRIBUTION TERRITORY: United States, Canada and their
respective territories and possessions (including without
limitation, Guam, American Samoa, U.S. Virgin Islands, British
Virgin Islands, Netherland Antilles, West Indies, Saipan,
Bahamas Islands, Bermuda and Puerto Rico) ("Territory"). The
Territory shall include, without limitation, any and all
military and diplomatic installations or facilities, common
carriers, (e.g. airlines, ships at sea, trains, etc.),
industrial installations (e.g. drilling platforms, oil rigs,
construction sites, company theaters etc.), educational
institutions, libraries, prisons, museums and churches flying
the flag of any nation within the Territory (regardless of where
situated) or located in any nation within the Territory, and
catalog rental companies shipping from a fulfillment site within
the Territory. Beacon agrees to advise all licensees of
distribution rights outside the Territory of the specific
territories which have been licensed to Universal hereunder as
part of the Territory.
5. DISTRIBUTION TERM: For each Picture, a minimum of two (2) full television
syndication cycles (based on Universal's customary sequential pattern of
release), extendible for such period as is necessary for Universal to
recoup the Advance (see Paragraph 10. below) with respect to the Picture,
but not to exceed twenty-one (21) years from the theatrical release of
each Picture.
6. DISTRIBUTION RIGHTS: The sole and exclusive motion picture,
television, video, allied and ancillary distribution rights
(including, without limitation, the publishing, derivative
distribution and commercial tie-up rights) in and to the
Pictures, during the Distribution Term, in the Territory,
subject to the Reserved Rights (see Paragraph 7. below)
("Distribution Rights"). The rights granted to Universal include
the right to exploit the Pictures on hotel pay-per-view services
(excluding hotels serviced by the "On Command" service [see
Paragraph 7.d. below]).
7. RESERVED RIGHTS:
a. Soundtrack Album: Beacon will retain all soundtrack album
rights in the Pictures; provided, however, that MCA
Records will be accorded a right of first refusal to
distribute the soundtrack album for each Picture, in the
<PAGE>
Territory, during the Term, and in such other territories in which
Beacon desires to distribute a soundtrack album. If MCA Records
distributes the soundtrack album, the revenues derived therefrom
will be accounted for separately.
b. Music Publishing: Beacon will retain all music publishing
rights in the Pictures; provided, however, that MCA's
music publishing company will administer such rights for
each Picture in the Territory, during the Term, for which
it will receive
administrative fee. All revenue
derived from the exploitation of music publishing rights
will be paid to Beacon, on a separate accounting basis,
after the deduction of (i) the administrative fee, (ii)
all out-of-pocket costs and expenses and (iii) all third
party royalties. The parties agree to negotiate in good
faith an appropriate advance of music publishing revenue.
c. Merchandising: Beacon will retain all merchandising rights
in the Pictures; provided, however, that Universal's
merchandising affiliate will administer such rights for
each Picture in the Territory, during the Term, for which
it will receive
administrative fee. All revenue
derived from the exploitation of merchandising rights will
be paid to Beacon, on a separate accounting basis, after
the deduction of (i) the administrative fee, (ii) all
out-of-pocket costs and expenses and (iii) all third party
royalties.
d. Hotels Utilizing On Command Pay-Per-View Service: Beacon
will retain the right to exploit the Pictures in hotel
rooms in the Territory utilizing the On Command
pay-per-view service. Upon execution of this agreement,
Beacon will provide Universal with a list of the hotel
rooms serviced by On Command. Beacon's gross proceeds
from the exercise of such rights shall be included in
calculating (i) the escalation of Universal's Non-Video
Distribution Fee under Paragraph 12.b and (ii) Beacon's
Non-Video Participation (as defined in Paragraph 13.) from
which Universal may be entitled to recoup the Advance (as
defined in Paragraph 13.)
8. OVERHEAD/DEVELOPMENT CONTRIBUTION: Beacon will receive
during each year of the Term, payable monthly in
arrears, as an overhead/development contribution ("Overhead
Contribution"). The Overhead Contribution will be recoupable by
Universal during each year of the Term as a distribution expense
If during any
year of the Term Beacon does not deliver four (4) Pictures, the unrecouped
portion of the Overhead Contribution will be reallocated to Pictures
delivered in subsequent years; provided, however, that such reallocation
shall not exceed an additional .
<PAGE>
9. CONCEPT APPROVAL: As a condition precedent to Universal's
obligation to accept delivery of a Picture hereunder, Beacon
agrees to obtain Universal's approval of the concept of each
theatrical motion picture project ("Project") Beacon
contemplates producing during the Term ("Concept Approval"). To
obtain Concept Approval, at such time as Beacon chooses in its
sole discretion, Beacon agrees to submit to the Motion Picture
Group Chairman (presently Casey Silver) or his designee, the
concept of the Project, plus any additional material information
about the project then known. Universal agrees to approve or
disapprove the Project based on the information provided within
. If Universal disapproves, Beacon will have the
right to offer the Project to another distributor. If the
concept as presented to Universal materially changes, Beacon
will resubmit the Project to Universal for Concept Approval.
10. ADVANCE: Upon delivery to Universal of a Picture which meets the
production specifications and delivery requirements set forth in
Paragraph 2. above, Universal will advance to Beacon an amount
equal to . The actual amount advanced to
Beacon for each Picture plus interest thereon at
is hereinafter referred to as "the Advance". The budget for
each Picture hereunder may not include a producing fee for
Beacon in excess of . Notwithstanding the
foregoing, if prior to the commencement of principal
photography, Beacon provides Universal with evidence that a
Picture is bonded and has adequate insurance coverage, Beacon
may elect to have Universal cash flow such Picture up to the
amount of the Advance (exclusive of interest), in lieu of paying
the Advance upon acceptance of delivery of the Picture. If
Universal does not cash flow the Picture, the actual production
cost of the Picture may include interest at a rate not to exceed
Universal's (or MCA's) then applicable internal rate of
borrowing. With respect to Pictures for which the total
"all-in" direct cost budget exceeds the parties will
negotiate in good faith an appropriate adjustment of the Advance.
11. BEACON PARTICIPATION: With respect to each Picture, Beacon will
receive all proceeds from the exercise by Universal of the
Distribution Rights after the deduction by Universal of (i) the
applicable distribution fee (see Paragraph 12. below), (ii)
customary distribution expenses (including, without limitation,
marketing, manufacturing and distribution expenses with respect
to home video), and subject further to Universal's recoupment of
the Advance (see Paragraph 13. below). In calculating customary
distribution expenses, Universal agrees .
<PAGE>
At Beacon's request, Universal will act as the paymaster for all third
party participations which will be deducted as a distribution expense
(non-video and video on a fully cross-collateralized basis) from the
proceeds payable to Beacon. In addition, as an accommodation to Beacon,
Universal will advance all guild residuals due, and will deduct all
residuals advanced from the proceeds payable to Beacon as a distribution
expense (on a non-cross-collateralized basis). Universal will provide
appropriate documentation to the applicable guild or labor union.
12. DISTRIBUTION FEES:
for all media (including home video distribution) escalating as follows:
a. Video Distribution Fee: The distribution fee for home
video will escalate
the applicable Picture.
b. Non-Video Distribution Fee: The distribution fee for all
other media will escalate
the applicable Picture.
13. RECOUPMENT OF ADVANCE: In connection with each Picture, the
Advance will be deemed initially an advance against Beacon's
participation in the proceeds
If Universal determines based on internal projections (calculated in a
manner consistent with generally accepted accounting principles) that the
Advance will not be fully recouped from , Universal will be entitled to
recoup the Advance from Beacon's
participation in as follows:
a. Universal will be entitled to establish appropriate reserves from
Beacon's
which will be used to enable Universal to recoup the
Advance, such reserves to be subject to liquidation on a periodic
basis.
b. Solely for purposes of determining whether Universal can
to recoup the Advance,
will be re-calculated without the deduction of the
distribution fee or interest on the Advance.
c. Universal will be entitled to recoup the Advance from
d. Universal will not be entitled to recoup the Advance or
its distribution expenses from one Picture from Beacon's
on any other Picture hereunder.
e. Beacon will be entitled to review the documentation upon which
Universal's projections are based at such time Universal determines
(if ever) that a reserve should be established, and thereafter at
reasonable times and intervals.
14. CONSULTATION: Beacon will consult with Universal with respect to all
material creative and production matters, including, without limitation,
screenplay, budget, director, principal cast, production schedule, filming
location, post-production schedule, and delivery date.
Universal will consult fully and in good faith with Beacon with respect to
all material marketing and distribution matters, including, without
limitation, the advertising/publicity campaign, marketing budget and
release pattern for the initial theatrical and home video release of each
Picture in the Territory. Universal agrees that each Picture will have a
print and advertising budget comparable to that expended by Universal, on a
non-discriminatory basis, for comparable pictures that are fully financed
by Universal, and in an amount sufficient to qualify for Universal's output
arrangements. Universal will also consult with Beacon with respect to
television syndication arrangements and the initial sale of the home video
units for each Picture (i.e. rental vs. sell through).
15. CREDIT: In addition to the producer credit which must be
accorded to Armyan Bernstein pursuant to Paragraph 3. above,
Beacon will be accorded a presentation credit (including logo
credit) on screen and in paid advertising in connection with
each Picture accepted for delivery by Universal, whenever and
wherever Universal's credit (including logo credit) appears.
All other credits will be accorded by Beacon in its sole
discretion subject to guild requirements and Universal's
customary credit policies.
16. KEY ART: Beacon will be accorded free access to all available
key art and related advertising material (including trailer
materials) created by Universal for use by Beacon in connection
with the exploitation of the Pictures outside the Territory.
<PAGE>
17. REMAKES AND SEQUELS: If Beacon intends to produce a remake or sequel of
any Picture for release in the Territory after the expiration of Term,
Beacon will accord Universal a right of first negotiation/last refusal to
acquire Distribution Rights in the Territory to each such remake or
sequel.
18. COPYRIGHT: As between Universal and Beacon, Beacon will be the
sole and exclusive owner of the copyright in the Pictures.
19. MUSIC: Universal and Beacon will discuss in good faith the
possibility of establishing a co-venture to exploit the
soundtrack album and music publishing rights in the Pictures,
but unless and until such co-venture is established (as to which
no commitment has been made by Universal), the provisions of
Paragraphs 7.a. and b. will govern the soundtrack album and
music publishing rights, respectively, in the Pictures.
20. PRESS RELEASE: Universal and Beacon will mutually approve all
press and publicity releases with respect to this agreement.
Since this letter will serve as our agreement until long form
documentation is prepared, please acknowledge your agreement to the foregoing by
signing where indicated below.
Sincerely,
Universal Pictures, a division of
Universal City Studios, Inc.
By:/s/ John Gumpert
Its:Executive Vice President
AGREED TO AND ACCEPTED:
BEACON PICTURES
By: /s/ B. Armyan Bernstein
Its: Chairman
Exhibit 10.7 to
Form 10-Q
$200,000,000
CREDIT AGREEMENT
Dated as of October 8, 1996
among
ASCENT ENTERTAINMENT GROUP, INC.
as the Borrower
and
THE LENDERS NAMED HEREIN
and
NATIONSBANK OF TEXAS, N.A.
as the Administrative Agent
<PAGE>
Exhibits and Schedules
Exhibits
Exhibit A - Form of Administrative Questionnaire
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Borrowing Request
Exhibit D - Form of Application for a Letter of Credit
Exhibit E - Form of Compliance Certificate
Schedules
Schedule 1.01 - Films Not Included in Film Cash Flow
Schedule 2.01 - Lenders and Commitments
Schedule 3.08 - Subsidiaries
Schedule 3.09 - Litigation
Schedule 3.10 - Restrictive Material Agreements
Schedule 3.18 - Insurance
Schedule 3.20 - Environmental Matters
Schedule 3.23 - Film Inventory
Schedule 6.01 - Subsidiary Indebtedness
Schedule 6.02 - Liens
Schedule 6.04 - Investments
Schedule 6.03 - Permitted Sale Leaseback
Schedule 6.05 - Capital Stock owned by the Borrower Permitted
to be Sold
<PAGE>
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3
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TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................... 1
SECTION 1.02. Terms Generally.................................... 23
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................ 23
SECTION 2.02. Loans.............................................. 23
SECTION 2.03. Borrowing Procedure................................ 25
SECTION 2.04. Evidence of Debt; Repayment of Loans............... 26
SECTION 2.05. Fees............................................... 26
SECTION 2.06. Interest on Loans.................................. 28
SECTION 2.07. Default Interest................................... 28
SECTION 2.08. Alternate Rate of Interest......................... 28
SECTION 2.09. Termination and Reduction of
Commitments; Extension of Maturity Date............ 29
SECTION 2.10. Conversion and Continuation of Borrowings.......... 30
SECTION 2.11. Prepayment......................................... 31
SECTION 2.12. Reserve Requirements; Change in
Circumstances.................................................. 32
SECTION 2.13. Change in Legality................................. 34
SECTION 2.14. Indemnity.......................................... 35
SECTION 2.15. Pro Rata Treatment................................. 35
SECTION 2.16. Sharing of Setoffs................................. 35
SECTION 2.17. Payments........................................... 36
SECTION 2.18. Taxes.............................................. 36
SECTION 2.19. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate.................... 40
SECTION 2.20. Letters of Credit.................................. 41
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers............................... 45
SECTION 3.02. Authorization...................................... 46
SECTION 3.03. Enforceability..................................... 46
SECTION 3.04. Governmental Approvals............................. 46
SECTION 3.05. Financial Statements............................... 46
SECTION 3.06. No Material Adverse Change......................... 47
SECTION 3.07. Title to Properties; Possession Under
Leases 47
SECTION 3.08. The Subsidiaries and On Command Corp............... 47
SECTION 3.09. Litigation; Compliance with Laws................... 47
SECTION 3.10. Agreements......................................... 48
SECTION 3.11. Federal Reserve Regulations........................ 48
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act................................ 48
SECTION 3.13. Use of Proceeds.................................... 48
SECTION 3.14. Tax Returns........................................ 48
SECTION 3.15. No Material Misstatements.......................... 49
SECTION 3.16. Employee Benefit Plans............................. 49
SECTION 3.17. Solvency........................................... 49
SECTION 3.18. Insurance.......................................... 50
SECTION 3.19. Labor Matters...................................... 50
SECTION 3.20. Environmental Matters.............................. 50
SECTION 3.21. Ownership of the Franchises........................ 51
SECTION 3.22. Strikes............................................ 51
SECTION 3.23. Film Inventory..................................... 52
SECTION 3.24. Survival of Representations and
Warranties, etc................................................ 52
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events.................................. 52
SECTION 4.02. First Credit Event................................. 53
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties............... 56
SECTION 5.02. Insurance.......................................... 56
SECTION 5.03. Obligations and Taxes.............................. 56
SECTION 5.04. Financial Statements, Reports, etc................. 57
SECTION 5.05. Litigation and Other Notices....................... 58
SECTION 5.06. Employee Benefits.................................. 58
SECTION 5.07. Maintaining Records; Access to
Properties and Inspections......................... 59
SECTION 5.08. Use of Proceeds.................................... 59
SECTION 5.09. Compliance with Environmental Laws................. 59
SECTION 5.10. Compliance with Material Contracts................. 60
SECTION 5.11. Arena/Complex Construction......................... 60
SECTION 5.12. NBA and NHL Obligations............................ 60
SECTION 5.13. Operation of Franchises............................ 60
SECTION 5.14. Services Contracts................................. 60
SECTION 5.15. Key Man Life Insurance/NBA and NHL
Financial Information.............................. 60
SECTION 5.16. Arena/Complex Notice............................... 61
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness....................................... 61
SECTION 6.02. Liens.............................................. 62
SECTION 6.03. Sale and Lease Back Transactions................... 64
SECTION 6.04. Investments, Acquisitions, Loans and
Advances 64
SECTION 6.05. Mergers, Consolidations and Sales of
Assets 65
SECTION 6.06. Dividends and Distributions;
Restrictions on Ability of Subsidiaries
to Pay Dividends................................... 66
SECTION 6.07. Transactions with Affiliates....................... 66
SECTION 6.08. Limitation on Restrictive Agreements............... 67
SECTION 6.09. Coverage Ratio..................................... 67
SECTION 6.10. Financial Covenants Regarding On Command
Corp 68
SECTION 6.11. Film Inventory..................................... 68
SECTION 6.12. Amendments to Organizational Documents. .......... 69
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................ 77
SECTION 9.02. Survival of Agreement.............................. 78
SECTION 9.03. Binding Effect..................................... 78
SECTION 9.04. Successors and Assigns............................. 79
SECTION 9.05. Expenses; Indemnity................................ 82
SECTION 9.06. Right of Setoff.................................... 83
SECTION 9.07. Applicable Law..................................... 83
SECTION 9.08. Waivers; Amendment................................. 84
SECTION 9.09. Interest Rate Limitation........................... 84
SECTION 9.10. NBA Consent Letter and NHL Consent Letter.......... 85
SECTION 9.11. ENTIRE AGREEMENT................................... 85
SECTION 9.12. WAIVER OF JURY TRIAL............................... 85
SECTION 9.13. Severability....................................... 86
SECTION 9.14. Counterparts....................................... 86
SECTION 9.15. Headings........................................... 86
SECTION 9.16. Jurisdiction; Consent to Service of
Process 86
SECTION 9.17. Confidentiality.................................... 87
SECTION 9.18. Proposed Merger of Ascent Network
Services, Inc.................................................. 87
<PAGE>
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ASCENT ENTERTAINMENT GROUP, INC.
$200,000,000
CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement"), dated as of October 8, 1996,
among ASCENT ENTERTAINMENT GROUP, INC., a Delaware corporation (the "Borrower"),
the Lenders (as defined in Article I hereof), and NATIONSBANK OF TEXAS, N.A., a
national banking association, as issuing bank (in such capacity, the "Issuing
Bank"), and as administrative agent (in such capacity, the "Administrative
Agent") for the Lenders.
The Borrower has requested the Lenders to (a) extend secured credit in the
form of Revolving Loans (such term and each other capitalized term used but not
defined herein having the meaning given it in Article I hereof), at any time and
from time to time prior to the Maturity Date, in an aggregate principal amount
at any time outstanding not in excess of $200,000,000, (b) issue letters of
credit, in an aggregate face amount at any time outstanding not in excess of
$15,000,000 and (c) support payment obligations incurred in the ordinary course
of business by the Borrower and its Subsidiaries. The proceeds of the Revolving
Loans are to be used to refinance existing indebtedness and for general
corporate purposes of the Borrower and its Subsidiaries, including, without
limitation, working capital and strategic acquisitions permitted under the terms
hereof.
The Lenders are willing to extend such credit to the Borrower, and the
Issuing Bank is willing to issue letters of credit for the account of the
Borrower, in each case on the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at the Alternate Base Rate
in accordance with the provisions of Article II hereof.
<PAGE>
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"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, a simple per annum interest rate equal to the lesser of
(a) the Highest Lawful Rate and (b) the sum of (i) the quotient of (x) the LIBO
Rate divided by (y) one minus the LIBOR Reserve Percentage, stated as a decimal,
plus (ii) the Applicable Percentage. The Adjusted LIBO Rate shall apply to
Interest Periods of one, two, three or six months, or, if determined available
by the Administrative Agent, twelve months. The Adjusted LIBO Rate shall be
subject to availability with respect to the Lenders and to Section 2.13 hereof.
Once determined, the Adjusted LIBO Rate shall remain unchanged during the
applicable Interest Period, except for changes to reflect adjustments in the
LIBOR Reserve Percentage.
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"Administrative Agent Fees" shall have the meaning assigned to such term
in Section 2.05(b) hereof.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A hereto.
"Advertising Agreements" shall mean all material agreements between Ascent
Sports, Avalanche Sub or Nuggets Sub and any other Person in any manner relating
to signage or advertising in, around or relating to the Arena, or, after its
completion, the Arena/Complex.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the lesser of (a) the
Highest Lawful Rate and (b) sum of (i) the Applicable Percentage, plus (ii) the
greater of (A) the Prime Rate in effect on such day, and (B) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition thereof, the Alternate Base Rate shall be determined
without regard to clause (B) of the preceding sentence, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively. The term "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its office in Dallas, Texas;
each change in the Prime Rate shall be effective on the date such change is
publicly announced as being effective. The term "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of Dallas, Texas or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for the day for
such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Applicable Law" shall mean (a) in respect of any Person, all provisions
of Laws of tribunals applicable to such Person, and all orders and decrees of
all courts and arbitrators in proceedings or actions to which the Person in
question is a party and (b) in respect of contracts made or performed in the
State of Texas, "Applicable Law" also means the laws of the United States of
America, including, without limiting the foregoing, 12 USC Sections 85 and 86,
as amended to the date hereof and as the same may be amended at any time and
from time to time hereafter, and any other statute of the United States of
America now or at any time hereafter prescribing the maximum rates of interest
on loans and extensions of credit, and the laws of the State of Texas,
including, without limitations, Articles 5069-1.04 and 5069-1.07(a), Title 79,
Revised Civil Statutes of Texas, 1925, as amended ("Art. 1.04"), and any other
statute of the State of Texas now or at any time hereafter prescribing maximum
rates of interest on loans and extensions of credit; provided however, that
pursuant to Article 5069-15.10(b), Title 79, Revised Civil Statutes of Texas,
1925, as amended, the Borrower agrees that the provisions of Chapter 15, Title
79, Revised Civil Statutes of Texas, 1925, as amended, shall not apply to the
Loans hereunder.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Revolving Loan or ABR Loan, the applicable percentage set forth below
under the caption "Eurodollar Margin" or "ABR Margin", as the case may be, based
upon the ratio of (a) the product of the Borrower's and its consolidated
Subsidiaries' EBITDA for the most recently completed four fiscal quarters to (b)
Consolidated Cash Interest Expense for the most recently completed four fiscal
quarters (the "Determining Ratio"), then in effect for purposes hereof:
Eurodollar ABR
Determining Ratio Margin Margin
Category 1 2.50% 1.50%
Less than 1.10 to 1.00
Category 2 2.00% 1.00%
Greater than or equal to
1.10 to 1.00 but less than
2.00 to 1.00
Category 3
Greater than or equal to 1.75% 0.75%
2.00 to 1.00
Except as set forth below, the Determining Ratio utilized for purposes of
determining the Eurodollar Margin and ABR Margin shall be that in effect as of
the last day of the most recent fiscal quarter of the Borrower in respect of
which financial statements have been delivered pursuant to this Agreement. From
the date hereof until the earliest to occur of the initial delivery of financial
statements pursuant to Section 5.04(a) or (b) hereof, the Borrower's failure to
timely deliver such financial statements or the occurrence of an Event of
Default, the Determining Ratio shall be deemed to be within Category 1 above.
The Applicable Percentage from time to time in effect shall be based on the
Determining Ratio from time to time in effect, and each change in the Applicable
Percentage resulting from a change in (or the initial establishment of) the
Determining Ratio shall be effective with respect to all Loans, Commitments and
Letters of Credit outstanding on and after the date of delivery to the
Administrative Agent of the financial statements and certificates required by
Section 5.04(a) or (b) hereof indicating such change to and including the date
immediately preceding the next date of delivery of such financial statements and
certificates indicating another such change. Notwithstanding the foregoing, (a)
at any time during which the Borrower has failed to deliver the financial
statements and certificates required by Section 5.04(a) or (b) hereof, or (b) at
any time after the occurrence and during the continuance of an Event of Default,
the Determining Ratio shall be deemed to be in Category 1 above for purposes of
determining the Applicable Percentage.
"Application" shall mean any stand-by letter of credit application
delivered to the Administrative Agent for or in connection with any Letter of
Credit pursuant to Section 2.20 hereof, in the Administrative Agent's standard
form for stand-by letters of credit, the form of which, on the Closing Date, is
attached as Exhibit D hereto.
"Arena" shall mean the arena owned by the City and County of
Denver, in Denver, Colorado, commonly known as "William H. McNichols,
Jr. Sports Arena".
"Arena/Complex" shall mean the proposed multi-purpose sports arena and
entertainment complex which is expected to include, among other things,
facilities for basketball, hockey, live concerts and other shows, television and
audio production and post-production facilities and integrated office space,
retail stores and restaurants.
"Art. 1.04" has the meaning specified in the definition of
"Applicable Law".
"Ascent Sports" shall mean Ascent Sports, Inc., a Delaware corporation and
wholly owned Subsidiary of the Borrower.
"Ascent Sports Holdings" shall mean Ascent Sports Holdings,
Inc., a Delaware corporation and wholly owned Subsidiary of the
Borrower.
"Asset Disposition" shall mean the sale or disposition of assets (not
including Capital Stock owned by the Borrower or any Subsidiary of the Borrower)
for fair market value in cash outside the ordinary course of business.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B hereto or such other form as shall be approved
by the Administrative Agent.
"Avalanche Sub" shall mean Colorado Avalanche, LLC, a Colorado limited
liability corporation and wholly owned indirect Subsidiary of the Borrower,
which such Subsidiary owns and operates the Colorado Avalanche, a franchise of
the NHL.
"Avalanche License Agreement" shall mean the User Agreement, between the
City and County of Denver and Avalanche Sub, related to Avalanche Sub's rights
to use and occupancy of the Arena.
"Avalanche License Documents" shall mean the Avalanche License Agreement
and each other material agreement related to Avalanche Sub's rights to the use
and occupancy of the Arena, or, after its completion, the similar agreements
related to the Arena/Complex.
"Beacon" shall mean Beacon Communications Corp., a Delaware corporation
and wholly owned Subsidiary of the Borrower.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrowing" shall mean Loans of a single Type made by the Lenders in
accordance with the terms hereof on a single date and as to which a single
Interest Period is in effect.
"Borrowing Base" shall mean (a) until (i) the Borrower and the
Administrative Agent shall have received an executed NBA Consent Letter and an
executed NHL Consent Letter in form and substance reasonably acceptable to the
Administrative Agent and (ii) 100% of the Capital Stock of Ascent Sports,
Avalanche Sub, Nuggets Sub and Ascent Network Services, Inc. has been pledged to
the Administrative Lender on behalf of the Lenders to secure the Obligations
pursuant to documentation substantially similar in form to the pledge agreement
executed on the Closing Date (and all such Capital Stock and corresponding stock
powers executed in blank shall have been delivered to the Bank), $125,000,000
and (b) thereafter, on any date of determination, the sum of (i) $100,000,000,
plus (ii) 50% of the product of (A) the number of shares of the Borrower's
Capital Stock of On Command Corp. times (B) the most recently quoted public
price of such Capital Stock. Notwithstanding anything herein to the contrary,
(I) effective on any date of execution of any such Guarantee, the Borrowing Base
shall be automatically reduced by the maximum amount of any outstanding
completion Guarantee of the Borrower executed in accordance with the terms of
Section 6.01(f) hereof, and (II) effective on the date that is two Business Days
after the Administrative Agent gives the Borrower written notice thereof from
time to time (which such notice must be within seven Business Days after the
Administrative Agent's receipt of written notice from the Borrower regarding the
receipt of such amounts), the Borrowing Base shall be automatically reduced by
amounts equal to (x) the Net Cash Proceeds of each Asset Disposition consummated
by the Borrower or any Subsidiary of the Borrower during the term of this
Agreement which requires a reduction in the Borrowing Base in accordance with
the terms of Section 6.05(b) hereof, and (y) the difference between aggregate
cash proceeds received by the Borrower or any Subsidiary of the Borrower during
the term of this Agreement from any and each expansion of the NHL or NBA less
the amount, if any, of the Borrower's good faith best estimate of all taxes
attributable to such cash expansion proceeds which it in good faith expects to
be paid in such taxable year or in the next taxable year.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 hereof and substantially in the form of Exhibit C
hereto.
"Broadcast Rights" shall mean (a) any and all rights of Ascent Sports,
Avalanche Sub or Nuggets Sub to broadcast, disseminate or publish, or to permit
the broadcast, dissemination or publication of, by means of television, radio,
cable, satellite or other electronic transmissions or recordings, any activities
of either Franchise; (b) any and all rights to license, sell, lease, convey or
otherwise transfer any of the foregoing described in clause (a); (c) any and all
rights of Ascent Sports, Avalanche Sub or Nuggets Sub, pursuant to any
agreement, contract, transaction or understanding, as a result of which any
Person is or becomes entitled to broadcast, disseminate or publish such
activities; and (d) any and all renewals and extensions of any of the foregoing
and any and all amendments and supplements thereto.
"Broadcasting Agreements" shall mean all material agreements now or
hereafter granting the Broadcast Rights by and between Ascent Sports, Avalanche
Sub or Nuggets Sub and any other Person.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in Dallas, Texas or New York, New York are authorized or required by
Law to close; provided, however, that when used in connection with a Eurodollar
Revolving Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Lease Obligations" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" shall mean, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
of any Person that is a corporation and each class of partnership interests
(including without limitation, general, limited and preference units) in any
Person that is a partnership.
A "Change in Control" shall be deemed to have occurred if any Person or
group (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934
as in effect on the date hereof) shall (a) own directly or indirectly,
beneficially or of record, shares of Capital Stock of the Borrower representing
a majority of the aggregate ordinary voting power, or (b) control a majority of
the seats on the Board of Directors of the Borrower, or (c) have effective
voting control of the Borrower, unless (i) such Person or group is COMSAT or
(ii) such Person or group has a long term senior unsecured debt rating of A- or
A3 or better from Standard & Poor's Ratings Group, a Division of McGraw-Hill,
Inc. or from Moody's Investors Service, Inc., respectively, and such Person or
group is otherwise acceptable to the Administrative Agent as evidenced by its
prior written consent to such change (which such consent may not be unreasonably
withheld or delayed).
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean first priority and perfected Liens in (a) 100% of
the Capital Stock of all Subsidiaries of the Borrower, except Nuggets Sub and
the Avalanche Sub and (b) all of the Borrower's and each Subsidiary's interest
in the Capital Stock of On Command Corp.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender to make Loans hereunder as set forth on Schedule 2.01 hereto, or in
the Assignment and Acceptance pursuant to which such Lender assumed its
Commitment, as applicable, provided that, effective on any date of execution of
any such Guarantee, each Lender's Commitment shall be automatically reduced by
the amount of any such Lender's Pro Rata Percentage of the maximum amount of any
outstanding completion Guarantee of the Borrower executed in accordance with the
terms of Section 6.01(f) hereof, and further, as the same may be (a) reduced
from time to time pursuant to Section 2.09 hereof or pursuant to Section 2.19
hereof and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04 hereof.
"Commitment Fee" shall have the meaning assigned to such term in Section
2.05(d) hereof.
"Compliance Certificate" shall mean a compliance certificate,
substantially in the form of Exhibit E hereto, and certifying that there exists
no Default or Event of Default at the time of delivery thereof.
"COMSAT" shall mean COMSAT Corporation, a corporation organized under the
Laws of the District of Columbia.
"COMSAT Agreements" shall mean the Services Agreement, the Corporate
Agreement and the Tax Sharing Agreement, in each case between the Borrower and
COMSAT, in the forms delivered to the Lenders, as such agreements may hereafter
be amended as permitted by, and in accordance with, the provisions of this
Agreement.
"Concession Agreements" shall mean all material agreements now or
hereafter existing covering or affecting the sale of food, beverage, merchandise
or other goods at or near the Arena, or, after its completion, the
Arena/Complex, and any and all amendments thereto or substitutions therefor
between Ascent Sports, Avalanche Sub or Nuggets Sub and any other Person.
"Consolidated Cash Interest Expense" shall mean, for any period of
determination, the gross interest expense of the Borrower and its Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP,
excluding any amounts not paid or not required (whether during or after such
period) to be paid in cash. For purposes of the foregoing, gross interest
expense shall be determined after giving effect to any net cash payments made or
received by the Borrower with respect to rate protection agreements entered into
as a hedge against interest rate exposure. Gross interest expense shall be
calculated in accordance with GAAP as in effect and applied by the Borrower on
the date of this Agreement and, accordingly, shall exclude the effects of any
changes in GAAP or its application by the Borrower after the date hereof.
"Consolidated Total Indebtedness" shall mean, for any Person, all
Indebtedness of such Person and its consolidated subsidiaries (other than
Indebtedness referred to in clause (h) of the definition of such term),
determined on a consolidated basis in accordance with GAAP; provided, however,
that Consolidated Total indebtedness of the Borrower shall not include
Non-Recourse Arena Financing or Non-Recourse Film Indebtedness, in each case
incurred in compliance with the provisions of this Agreement.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have the meanings correlative thereto.
"Corporate Restructuring" shall mean that series of transactions described
in the S-4 Registration Statement.
"Coverage Ratio" shall mean, on any date for the Borrower and its
Subsidiaries on a consolidated basis, the ratio of (a) the sum of (i) EBITDA for
the four most recently completed consecutive fiscal quarters, plus (ii) the
Revolver Availability on the date of determination, to (b) the product of (i)
Consolidated Total Indebtedness of the Borrower and its Subsidiaries on such
date times (ii) the current weighted average rate of interest being charged to
the Borrower on such date.
"Credit Event" shall have the meaning assigned to such term in Section
4.01 hereto.
"Debtor Relief Laws" shall mean applicable bankruptcy, reorganization,
moratorium, or similar Laws, or principles of equity affecting the enforcement
of creditors' rights generally.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, with respect to any Person and its subsidiaries on a
consolidated basis for any period, the consolidated net income of such Person
and its subsidiaries for such period, computed in accordance with GAAP, plus, to
the extent deducted in computing such consolidated net income and without
duplication, the sum of (a) income tax expense, (b) interest expense, (c)
depreciation and amortization expense (but excluding the amortization of Film
Inventory), (d) allocation of income to minority interests in earnings of
consolidated subsidiaries and (e) extraordinary losses (including restructuring
provisions) during such period minus, to the extent added in computing such
consolidated net income and without duplication, (y) extraordinary gains during
such period and (z) allocation of losses to minority interests in earnings of
consolidated subsidiaries. EBITDA shall be calculated in accordance with GAAP as
in effect and applied by the Borrower on the date of this Agreement and,
accordingly, shall exclude the effects of any changes in GAAP or its application
by the Borrower after the date hereof.
"Environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, consent decree, cost
recovery action or other cause of action by, or on behalf of, any Governmental
Authority or any Person for damages, injunctive or equitable relief, personal
injury (including sickness, disease or death), Remedial Action costs, tangible
or intangible property damage, natural resource damages, nuisance, pollution,
any adverse effect on the Environment caused by any Hazardous Material, or for
fines, penalties or restrictions, resulting from or based upon: (a) the
existence, or the continuation of the existence, of a Release (including sudden
or non-sudden, accidental or non-accidental Releases); (b) exposure to any
Hazardous Material; (c) the presence, use, handling, transportation, storage,
treatment or disposal of any Hazardous Material; or (d) the violation or alleged
violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and future
treaties, Laws, codes, judgments, injunctions, notices or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating in
any way to the Environment, preservation or reclamation of natural resources,
the management, Release or threatened Release of any Hazardous Material or to
health and safety matters, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. " 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. " 6901 et seq., the Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 U.S.C. " 1251 et seq., the Clean Air Act of
1970, 42 U.S.C. " 7401 et seq., as amended, the Toxic Substances Control Act of
1976, 15 U.S.C. " 2601 et seq., the Occupational Safety and Health Act of 1970,
as amended by 29 U.S.C. " 651 et seq., the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. " 11001 et seq., the Safe Drinking Water
Act of 1974, as amended by 42 U.S.C. " 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. " 5101 et seq., and any similar or implementing
state or local law, and all amendments or regulations promulgated thereunder.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan; (b)
the adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (e) the incurrence of any liability under Title IV of ERISA
upon the termination of any Plan or the withdrawal or partial withdrawal of the
Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; (f)
the receipt by the Borrower or any ERISA Affiliate from the PBGC of any notice
relating to the intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (g) the receipt by the Borrower or any ERISA Affiliate
of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; and (h) the
occurrence of a "prohibited transaction" with respect to which the Borrower or
any of its Subsidiaries is a "disqualified person" (within the meaning of
Section 4975 of the Code) or with respect to which the Borrower or any such
Subsidiary could otherwise be liable.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Revolving Loans.
"Eurodollar Revolving Loans" shall mean Revolving Loans bearing interest
at a rate determined by reference to the Adjusted LIBO Rate in accordance with
the provisions of Article II hereof.
"Event of Default" shall have the meaning assigned to such term in Article
VII hereof.
"Facility Fee" shall have the meaning assigned to such term in Section
2.05(a) hereof.
"Fee Letters" shall mean that certain Fee Letter dated October 8, 1996,
between the Borrower and the Administrative Agent, and any other fee letters
executed from time to time among the Borrower, the Administrative Agent and the
Lenders, as each may be amended, extended, increased, revised or substituted
from time to time.
"Fees" shall mean the Facility Fees, the Commitment Fees, the
Administrative Agent Fees, the L/C Participation Fees and the Issuing
Bank Fees.
"Film Cash Flow" shall mean, for the period from the date hereof through
any date of determination, positive or negative earnings before interest and
taxes generated by Motion Picture projects included in Film Inventory on the
balance sheet of the Borrower and its Subsidiaries, provided that revenues and
losses attributable to those film projects listed on Schedule 1.01 hereto shall
not be included in the calculation of Film Cash Flow.
"Film Inventory" shall mean film inventory on the balance sheet of the
Borrower and its Subsidiaries from time to time.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Franchise" shall mean either the NBA Franchise or the NHL Franchise, and
"Franchises" means both such franchises.
"GAAP" shall mean generally accepted accounting principles.
"Game" shall mean any game participated in by either Franchise and
conducted pursuant to the governance of or consented to by the NBA or the NHL,
including any promotional, exhibition, regular season, playoff or championship
game.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any Person shall mean any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness, and (d) to guaranty the
obligations, payments by or performance of, a Person that is not a wholly owned
direct or indirect Subsidiary of the Borrower; provided, however, that the term
Guarantee shall not include (i) endorsements for collection or deposit in the
ordinary course of business, (ii) any obligation, contingent or otherwise,
incurred in the ordinary course of business, to pay any amounts pursuant to
valid and binding actor's agreements in respect of any Motion Pictures, whether
or not the Person to whom such obligation is owed uses the obligation to secure
Indebtedness or services, or (iii) any obligation, contingent or otherwise,
incurred in the ordinary course of business, to purchase any Motion Picture
after its completion pursuant to valid and binding production or distribution
agreements in respect of any Motion Pictures, whether or not the Person to whom
such obligation is owed uses the obligation to secure Indebtedness or services.
"Guarantors" shall mean: Ascent Network Services, Inc., Ascent Sports
Holdings, Ascent Sports, Ascent Arena Corporation, Beacon, Beacon Music
Publishing, Inc., Club Pictures, Inc. and Daily Double Music Co., and all other
wholly owned direct or indirect Subsidiaries of the Borrower from time to time.
"Hazardous Materials" shall mean all explosive or radioactive substances
or wastes, hazardous or toxic substances or wastes, pollutants, solid, liquid or
gaseous wastes, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Highest Lawful Rate" shall mean at the particular time in question the
maximum rate of interest which, under Applicable Law, any Lender is then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, any Lender is permitted to charge on the Obligations shall
change after the date hereof, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, from time to time as of the
effective time of each change in the Highest Lawful Rate without notice to the
Borrower. For purposes of determining the Highest Lawful Rate under Applicable
Law, the applicable rate ceiling shall be (a) the indicated rate ceiling
described in and computed in accordance with the provisions of Section (a)(1) of
Art. l.04; or (b) provided notice is given as required in Section (h)(1) of Art.
1.04, either the annualized ceiling or quarterly ceiling computed pursuant to
Section (d) of Art. 1.04; provided, however, that at any time the indicated rate
ceiling, the annualized ceiling or the quarterly ceiling, as applicable, shall
be less than 18% per annum or more than 24% per annum, the provisions of
Sections (b)(1) and (2) of said Art. 1.04 shall control for purposes of such
determination, as applicable.
"Indebtedness" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits with
such Person or advances to such Person of any kind, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property or assets purchased by such Person, (d) all
obligations of such Person issued or assumed as the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed, (f) all Guarantees by such Person, (g) all Capital Lease
Obligations of such Person, (h) all net obligations of such Person in respect of
interest rate protection agreements, foreign currency exchange agreements or
other interest or exchange rate hedging arrangements and (i) all obligations of
such Person as an account party in respect to letters of credit and bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any partnership in which such Person is a general partner.
"Interest Payment Date" shall mean, with respect to any Loan or other
amount payable hereunder, each March 31, June 30, September 30 and December 31
of each year during the term of this Agreement.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, or if
determined available by the Administrative Agent, 12 months thereafter, as the
Borrower may elect and (b) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Maturity Date and (iii)
the date such Borrowing is converted to a Borrowing of a different Type in
accordance with Section 2.10 hereof or repaid or prepaid in accordance with
Section 2.11 hereof; provided, however, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of a Eurodollar Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Issuing Bank" shall mean NationsBank (or any Affiliate thereof) or any
other Lender that may become an Issuing Bank pursuant to Section 2.20(i) hereof,
in each case with respect to Letters of Credit issued by it.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c) hereof.
"Law" shall mean any applicable constitution, statute, law, ordinance,
regulation, rule, order, writ, injunction, or decree of any tribunal.
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.20 hereof.
"L/C Disbursement" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
principal amount of all L/C Disbursements that have not yet been reimbursed at
such time. The L/C Exposure of any Lender at any time shall mean its Pro Rata
Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c) hereof.
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 hereto (other than any such financial institution that has ceased to be a
party hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.20 hereof.
"LIBO Rate" shall mean, for any Eurodollar Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest one-one hundredth (1/100th) of one percent (1%)) appearing on Telerate
Page 3750 (or any successor page) as the London interbank offered rate for
deposits in United States dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period. If for any reason
such rate is not available, the term "LIBO Rate" shall mean, for any Eurodollar
Borrowing for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest one-one hundredth (1/100th) of one percent (1%))
appearing on Reuters Screen LIBO page as the London interbank offered rate for
deposits in United States dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates.
"LIBOR Reserve Percentage" shall mean, with respect to any Interest
Period, the percentage which is in effect on the first day of such period under
Regulation D of the Board of Governors of the Federal Reserve System, as such
regulation may be amended from time to time, as the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency or marginal
reserves) applicable to any Lender with respect to eurocurrency liabilities (as
that term is defined in Regulation D). The Adjusted LIBO Rate for any Eurodollar
Borrowing shall be adjusted for any change in the LIBOR Reserve Percentage.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan" shall mean the Revolving Loans made in accordance with the terms of
this agreement.
"Loan Papers" shall mean this Agreement, the promissory notes evidencing
the Loans, all pledge agreements, guaranties of the Obligations executed by the
Guarantors, Fee Letters, financing statements, all Letters of Credit, all
Applications and all other agreements between the Borrower or any Subsidiary of
the Borrower and the Administrative Agent related to any Letter of Credit, all
Assignment and Acceptances, post-closing letters, and all other documents,
instruments, agreements, or certificates executed or delivered from time to time
by any Person in connection with this Agreement or as security for the
Obligations hereunder, granting Collateral or otherwise, as each such agreement
may be amended, modified, substituted, replaced or extended from time to time.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, or financial condition of the Borrower, the
Subsidiaries of the Borrower and On Command Corp. and its Subsidiaries taken as
a whole, (b) material impairment of the ability of the Borrower to perform any
of its obligations under this Agreement or under any other Loan Paper or (c)
material impairment of the enforceability of this Agreement, any other Loan
Paper or the Loans.
"Maturity Date" shall mean, subject to Section 2.09(e) hereof, the date
that is 364 days after the date hereof, or such earlier date as the Obligations
are due and payable in full (whether by scheduled reduction, acceleration,
termination or otherwise).
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, the Administrative Agent or any Lender is permitted to charge on
the Obligations.
"Motion Pictures" shall mean motion pictures produced for distribution
through theaters and broadcast or cable television.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"National Media Contracts" shall mean radio or television or other media
agreements now existing or entered into in the future respecting the broadcast
of the Games to audiences beyond the local areas in which games are played or
the local areas of the visiting team, whether such games are regular season
games or otherwise, and whether transmission of such broadcast is over-the-air,
over cable, by pay per view or by any other means of transmission (except for
those contracts that are the subject of a Superstation Agreement), including
each agreement between (a) the NBA or any Affiliate of the NBA, on its own
behalf and as agent for each of the Teams, and any other Person and (b) the NHL
or any Affiliate of the NHL, on its own behalf and as agent for each of the
Teams, and any other Person, in each case, as each may be supplemented,
modified, amended or restated from time to time in the manner provided therein
and all successor contracts that may in the future be entered into.
"NationsBank" shall mean NationsBank of Texas, N.A., a national
banking association.
"NBA" shall mean the National Basketball Association, a joint venture, and
each successor and assign thereof.
"NBA Consent Letter" shall mean the letter agreement among the Borrower
and certain of its Subsidiaries, the Administrative Agent (on behalf of itself
and the Lenders), NBA, NBA Properties, Inc. and NBA Market Extension
Partnership, approving the transactions evidenced by the Loan Papers and setting
forth certain restrictions with respect to the Administrative Agent and the
Lenders exercise of their rights hereunder.
"NBA Documents" shall mean, collectively, (a) the Amended and Restated
Joint Venture Agreement made as of January 1, 1989 among Nuggets Sub and the
other joint venturers in the NBA, and (b) the Constitution and Bylaws of the
NBA, as the same may be renewed, extended, modified or replaced from time to
time.
"NBA Franchise" shall mean the NBA franchise known as the "Denver Nuggets"
and all rights of Nuggets Sub and Ascent Sports pursuant to the agreements with
the NBA related thereto.
"NBC Contract" shall mean the Service Contract dated September 15, 1983,
between COMSAT General Corporation (now Ascent Network Services, Inc.) and
National Broadcasting Company, Inc., as amended from time to time.
"Net Cash Proceeds" shall mean with respect to any Asset Disposition (i)
the gross amount of any cash paid to or received by the Borrower or any of its
Subsidiaries in respect of such Asset Disposition (including (a) payments of
principal or interest, or cash proceeds from the sale or other disposition in
respect of noncash consideration permitted under Section 6.05 hereof, and (b)
insurance proceeds, condemnation awards and payments from time to time in
respect of installment obligations, if applicable), less (ii) the amount, if
any, of (x) the Borrower's good faith best estimate of all taxes attributable to
such Asset Disposition which it in good faith expects to be paid in the taxable
year in which such Asset Disposition shall occur or in the next taxable year,
(y) reasonable and customary fees, discounts, commissions, costs and other
expenses (other than those payable to the Borrower or any Affiliate of the
Borrower), which are incurred in connection with such Asset Disposition and are
payable by the Borrower or any of its Subsidiaries and (z) in the case of an
Asset Disposition that is a sale, transfer or other disposition of assets or
properties, proceeds required to discharge Liens in respect of such assets or
properties permitted by Section 6.02 hereof.
"NHL" shall mean the National Hockey League, an unincorporated
association, and each successor and assign thereof.
"NHL Consent Letter" shall mean the letter agreement among the Borrower
and certain of its Subsidiaries, the Administrative Agent, each Lender and the
NHL, approving the transactions evidenced by the Loan Papers and setting forth
certain restrictions with respect to the Administrative Agent and the Lenders
exercise of their rights hereunder.
"NHL Documents" shall mean, collectively, (a) the Consent Agreement, made
as of July 1, 1995 among National Hockey League, le Club de Hockey Les
Nordiques, Les Nordiques de Quebec 1988, 2627-9455 Quebec Inc., Marcel Aubut,
COMSAT Hockey Enterprises, COMSAT Video Enterprises, Inc., COMSAT Denver, Inc.,
COMSAT Entertainment Group, Inc., and COMSAT Corporation and the other joint
venturers in the NHL, and (b) the Constitution and Bylaws of the NHL, as the
same may be renewed, extended, modified or replaced from time to time.
"NHL Franchise" shall mean the NHL franchise known as the "Colorado
Avalanche" and all rights of Avalanche Sub and Ascent Sports pursuant to the
agreements with the NHL related thereto.
"Non-Recourse Arena Financing" shall mean Indebtedness incurred by the
Denver Arena Company, LLC in connection with the financing of the Arena/Complex
(i) as to which neither the Borrower nor any other Subsidiary of the Borrower
(A) provides credit support (including any undertaking, agreement or instrument
which would constitute Indebtedness) or has given or made other written
assurances regarding repayment (except with respect to the limited construction
Guarantee permitted by Section 6.01(f) hereof), (B) is directly or indirectly
personally liable (except with respect to the limited construction Guarantee
permitted by Section 6.01(f) hereof) or (C) constitutes the lender and (ii) the
obligees of which will have recourse solely against the assets comprising such
project (including rights of Denver Arena Company, LLC as a lessor under leases
thereto) for repayment of the principal of and interest on such Indebtedness and
fees, indemnities, expense reimbursements or other amounts of whatever nature
accrued or payable in connection with such Indebtedness and that has terms and
provisions reasonably satisfactory in form and substance to, and approved in
writing by, the Administrative Agent in respect of the matters referred to in
clause (i) or clause (ii) above.
"Non-Recourse Film Indebtedness" shall mean Indebtedness of Beacon
incurred solely for the purpose of financing Motion Pictures (i) as to which
neither the Borrower nor any other Subsidiary of the Borrower (A) provides
credit support (including any undertaking, agreement or instrument which would
constitute Indebtedness) or has given or made other written assurances regarding
repayment, (B) is directly or indirectly personally liable or (C) constitutes
the lender and (ii) the obligees of which will have recourse for repayment of
the principal of and interest on such Indebtedness and any fees, indemnities,
expense reimbursements or other amounts of whatever nature accrued or payable in
connection with such Indebtedness solely against (x) the negatives for such
Motion Pictures, (y) ownership, distribution or exploitation rights with respect
to such Motion Pictures or (z) standby letters of credit constituting
Indebtedness which itself qualifies as Non-Recourse Film Indebtedness.
"Nuggets License Agreement" shall mean the User Agreement, dated as of
July 15, 1992, as amended, between the City and County of Denver and Nuggets Sub
related to Nuggets Sub's right to use and occupancy of the Arena.
"Nuggets License Documents" shall mean the Nuggets License Agreement and
each other material agreement related to Nuggets Sub's rights to the use and
occupancy of the Arena, or, after its completion, the similar agreements related
to the Arena/Complex.
"Nuggets Sub" shall mean Denver Nuggets, L.P., a Delaware limited
partnership and wholly owned indirect Subsidiary of the Borrower, which such
Subsidiary owns and operates the Denver Nuggets, a franchise of the NBA.
"Obligations" shall mean all present and future obligations, indebtedness
and liabilities, and all renewals and extensions of all or any part thereof, of
the Borrower and each Obligor to the Lenders and the Administrative Agent
arising from, by virtue of, or pursuant to this Agreement, any of the other Loan
Papers and any and all renewals and extensions thereof or any part thereof, or
future amendments thereto, all interest accruing on all or any part thereof and
reasonable attorneys' fees incurred by the Administrative Agent for the
preparation of this Agreement and consummation of this credit facility,
execution of waivers, amendments and consents, and in connection with the
enforcement or the collection of all or any part thereof, and reasonable
attorneys' fees incurred by the Lenders in connection with the enforcement or
the collection of all or any part of the Obligations during the continuance of
an Event of Default, in each case whether such obligations, indebtedness and
liabilities are direct, indirect, fixed, contingent, joint, several or joint and
several. Without limiting the generality of the foregoing, "Obligations"
includes all amounts which would be owed by the Borrower, each other Obligor and
any other Person (other than the Administrative Agent or the Lenders) to the
Administrative Agent or the Lenders under any Loan Paper, but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower, any other Obligor
or any other Person (including all such amounts which would become due or would
be secured but for the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding of the Borrower, any other
Obligor or any other Person under any Debtor Relief Law).
"Obligor" shall mean (a) the Borrower, (b) each Guarantor, (c) each other
Person liable for performance of any of the Obligations and (d) each other
Person the Property of which now or hereafter secures the performance of any of
the Obligations.
"OCC Agreements" shall mean the Services Agreement and the Corporate
Agreement, in each case between the Borrower and On Command Corp., in the forms
delivered to the Lenders, as such agreements may hereafter be amended as
permitted by, and in accordance with, the provisions of this Agreement.
"On Command Corp." shall mean On Command Corporation, a Delaware
corporation, approximately 57.0% of whose outstanding Capital Stock is owned,
directly or indirectly, by the Borrower on the Closing Date.
"On Command Corp. Loan Facility" shall mean a revolving credit
facility made available to On Command Corp. pursuant to documentation
dated the Closing Date, in an amount not to exceed $125,000,000, by a
group of financial institutions with the Administrative Agent as the
administrative agent thereunder.
"Parking Agreements" shall mean all material agreements now or hereafter
existing covering or affecting Game patron parking at or near the Arena, or,
after its completion, the similar agreements related to the Arena/Complex
(including shuttle and remote parking), and any and all amendments thereto or
substitutions therefor and any and all other agreements of a similar nature or
providing similar services between Ascent Sports, Avalanche sub or Nuggets Sub
and any other Person.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's Ratings Group, a Division of McGraw-Hill, Inc. or from Moody's
Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and time
deposits maturing within one year from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank which bank or office is
organized under the Laws of the United States of America or any State thereof
which has a combined capital and surplus and undivided profits of not less than
$250,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for underlying securities of the type described in clause (a) above
entered into with any institution meeting the qualifications specified in clause
(c) above.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
112 of the Code or Section 307 of ERISA and in respect of which the Borrower or
any ERISA Affiliate is (or if such plan were terminated would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Player Contracts" shall mean any and all player contracts existing by and
between Nuggets Sub or Avalanche Sub and the professional basketball players or
professional hockey players whose aggregate annual compensation package is
contractually in excess of $1,000,000 from time to time employed by Nuggets Sub
or Avalanche Sub, respectively, and any and all material amendments,
modifications, restatements or replacements of or substitutions for any of the
foregoing.
"Preferred Stock", as applied to the Capital Stock of any corporation,
shall mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution or assets
upon any voluntary or involuntary liquidation or dissolution of any such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Pro Rata Percentage" of any Lender at any time shall mean the percentage
of the Total Commitment represented by such Lender's Commitment.
"Register" shall have the meaning given such term in Section 9.04(d)
hereof.
"Regulation G" shall mean Regulation G of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Related Contracts" shall mean all material contracts and agreements,
other than the License Agreements, Services Contracts and the Player Contracts,
by and between Ascent Sports, Avalanche Sub or Nuggets Sub and other Persons,
including, without limitation, leases and related agreements related to training
facilities, non-Arena training facilities, non-Arena offices, non-Arena realty,
suites and boxes, suites and boxes marketing, option agreements, and all
material amendments, modifications, restatements or replacements of or
substitutions for any of the foregoing.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the Environment.
"Remedial Action" shall mean (a) "remedial action" as such term is defined
in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) cleanup, remove, treat,
abate or in any other way address any Hazardous Material in the Environment;
(ii) prevent the Release or threat of Release, or minimize the further Release
of any Hazardous Material so it does not migrate or endanger or threaten to
endanger public health, welfare or the Environment; or (iii) perform studies and
investigations in connection with, or as a precondition to, (i) or (ii) above.
"Required Lenders" shall mean, at any time, (i) Lenders having Commitments
representing at least 51% of the sum of all Commitments at such time, (ii) for
purposes of acceleration pursuant to clause (ii) of the last paragraph of
Article VII, Lenders having Loans, L/C Exposures and unused Commitments
representing at least 51% of the sum of all Loans outstanding, L/C Exposure and
unused Commitments or (iii) if the Commitments have terminated, Lenders having
Loans and L/C Exposure representing at least 51% of the sum of all Loans
outstanding and L/C Exposure.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement and the other Loan Papers.
"Revolver Availability" shall mean, on any date of determination, the
lesser of (a) the difference between the Total Commitment minus the Total
Exposure, and (b) the difference between the Borrowing Base minus the Total
Exposure.
"Revolving Loans" shall mean the revolving loans made available
by the Lenders to the Borrower pursuant to the Total Commitments and
Section 2.01 hereof. Each Revolving Loan shall be a Eurodollar
Revolving Loan or an ABR Revolving Loan.
"Services Contracts" shall mean the Broadcasting Agreements, the
Concession Agreements, the Advertising Agreements, the Parking Agreements, and
any and all material extensions, amendments, modifications, replacements and
substitutions for any of the above.
"S-4 Registration Statement" shall mean that certain Form S-4 Registration
Statement, as filed by On Command Corp. with the Securities and Exchange
Commission on August 16, 1996, as amended on September 4, 1996, September 26,
1996 and as further amended on October 7, 1996.
"Sports Subs" shall mean Ascent Sports and Ascent Sports
Holdings.
"Subsidiary" shall mean, with respect to any Person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership interests are, at the time any determination is being
made, owned, controlled or held, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent, provided
that, so long as the On Command Corp. Loan Facility is in existence and the
Administrative Agent is the administrative agent thereunder, when the term
"Subsidiary" is used with respect to the Borrower, it shall be deemed by the
parties hereto not to include On Command Corp. and its Subsidiaries.
"Superstation Agreements" shall mean all material agreements now existing
or entered into in the future between the NBA or NHL and/or individual Teams
regarding the sharing with the other Teams of revenues received by the
individual Teams with respect to agreements to broadcast basketball games
outside of the local areas of such Teams or the local areas of the visiting
teams entered into by such Teams with individual broadcasters, as each may be
supplemented, modified, amended or restated form time to time in the manner
provided therein and all material successor contracts that may in the further be
entered into.
"Team" shall mean any joint venturer of the NBA, or of the NHL as
applicable in the context used.
"Total Commitment" shall mean, at any time, the aggregate amount of the
Lenders' Commitments, as in effect at such time.
"Total Exposure" shall mean, with respect to the Lenders at any time, the
aggregate principal amount at such time of all outstanding Revolving Loans of
the Lenders, plus the aggregate amount at such time of all Lenders' L/C
Exposure.
"Transactions" shall have the meaning assigned to such term in Section
3.02 hereof.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of such
Person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the outstanding Capital Stock or
partnership interests, as the case may be, are, at the time any determination is
being made, owned by such Person or one or more Wholly Owned Subsidiaries of
such Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Terms Generally. The definitions in Section 1.01 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided, however, that
for purposes of determining compliance with the covenants contained in Article
VI hereof, all accounting terms herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP as in effect on
the date of this Agreement and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.05 hereof.
ARTICLE II
The Credits
Commitments. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally
and not jointly, to make Revolving Loans to the Borrower, at any time and from
time to time on or after the date hereof, and until the earlier of (a) the
Maturity Date, and (b) the termination of the Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount at any time
up to the lesser of (i) such Lender's Commitment and (ii) such Lender's Pro Rata
Percentage of the Borrowing Base, provided that, the Borrower agrees that,
notwithstanding anything in this Agreement or in any other Loan Paper to the
contrary, (A) no Lender shall at any time be obligated to make any Loan if such
Loan would result in such Lender's Total Exposure exceeding such Lender's
Commitment, and (B) Total Exposure shall never exceed the Borrowing Base. Within
the limits set forth in the preceding sentence and subject to the terms,
conditions and limitations set forth herein, the Borrower may borrow, pay or
prepay and reborrow Revolving Loans.
Loans.N 2.02. Loans
(a) Each Loan shall be made as part of a Borrowing consisting of Loans
made by the Lenders ratably in accordance with their respective Commitments;
provided, however, that the failure of any Lender to make any Loan shall not in
itself relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). Except
for Loans deemed made pursuant to Section 2.02(f) hereof, the Loans comprising
any Borrowing shall be in an aggregate principal amount that is (i) an integral
multiple of $1,000,000 and not less than $3,000,000 or (ii) equal to the
remaining available balance of the applicable Commitments or the Borrowing Base.
(b) Subject to Sections 2.08 and 2.13 hereof, each other Borrowing shall
be comprised entirely of ABR Loans or Eurodollar Revolving Loans as the Borrower
may request pursuant to Section 2.03 hereof, as applicable; provided, however,
that Borrowings on the Closing Date shall be comprised entirely of ABR Loans.
Each Lender may at its option make any Eurodollar Revolving Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
Borrowings of more than one Type may be outstanding at the same time; provided,
however, that the Borrower shall not be entitled to request any Borrowing that,
if made, would result in more than twelve Eurodollar Borrowings outstanding
hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same
date, shall be considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in Dallas, Texas as the Administrative Agent may designate not later
than 12:00 noon, Dallas, Texas time, and the Administrative Agent shall by 3:00
p.m., Dallas, Texas time, credit the amounts so received to an account in the
name of the Borrower, maintained with the Administrative Agent and designated by
the Borrower in the applicable Borrowing Request or, if a Borrowing shall not
occur on such date because any condition precedent herein specified shall not
have been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) The Borrower acknowledges that if the Borrower requests any Borrowing
with an Interest Period that would end after the Maturity Date, a Breakage Event
(as defined in Section 2.14 hereof) will occur on the Maturity Date and the
Borrower will be obligated to indemnify the Lenders in accordance with the terms
of Section 2.14 hereof.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.20(e) hereof within the time specified
in such Section, the Issuing Bank will promptly notify the Administrative Agent
of the L/C Disbursement and the Administrative Agent will promptly notify each
Lender of such L/C Disbursement and its Pro Rata Percentage thereof. Each Lender
shall pay by wire transfer of immediately available funds to the Administrative
Agent not later than 2:00 p.m., Dallas, Texas time, on such date (or, if such
Lender shall have received such notice later than 12:00 (noon), Dallas, Texas
time, on any day, not later than 10:00 a.m., Dallas, Texas time, on the
immediately following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement (it being understood that such amount shall
be deemed to constitute an ABR Loan of such Lender and such payment shall be
deemed to have reduced the L/C Exposure), and the Administrative Agent will
promptly pay to the Issuing Bank amounts so received by it from the Lenders. The
Administrative Agent will promptly pay to the Issuing Bank any amounts received
by it from the Borrower pursuant to Section 2.20(e) hereof prior to the time
that any Lender makes any payment pursuant to this paragraph (f); any such
amounts received by the Administrative Agent thereafter will be promptly
remitted by the Administrative Agent to the Lenders that shall have made such
payments and to the Issuing Bank, as their interests may appear. If any Lender
shall not have made its Pro Rata Percentage of such L/C Disbursement available
to the Administrative Agent as provided above, such Lender and the Borrower
severally agree to pay interest on such amount, for each day from and including
the date such amount is required to be paid in accordance with this paragraph to
but excluding the date such amount is paid, to the Administrative Agent at (i)
in the case of the Borrower, a rate per annum equal to the interest rate
applicable to ABR Loans pursuant to Section 2.06 hereof, and (ii) in the case of
such Lender, for the first such day, the Federal Funds Effective Rate, and for
each day thereafter, the Alternate Base Rate.
Borrowing Procedure. In order to request a Borrowing (other than a deemed
Borrowing pursuant to Section 2.02(f) hereof, as to which this Section 2.03
shall not apply), the Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Borrowing Request (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., Dallas, Texas time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 10:00 a.m., Dallas, Texas on the date (which shall be
a Business Day) of a proposed Borrowing. Each Borrowing Request shall be
irrevocable, shall be signed by or on behalf of the Borrower and shall specify
the following information: (i) whether the Borrowing then being requested is to
be a Eurodollar Borrowing or an ABR Borrowing (it being understood that the
Borrowing on the Closing Date shall be an ABR Borrowing); (ii) the date of such
Borrowing (which shall be a Business Day); (iii) the number and location of the
account to which funds are to be disbursed (which shall be an account that
complies with the requirements of Section 2.02(c)) hereof; (iv) the amount of
such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto. If no election as to the Type of Borrowing
is specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration. The Administrative Agent shall
promptly advise the Lenders of any notice given pursuant to this Section 2.03
hereof (and the contents thereof), and of each Lender's portion of the requested
Borrowing.
Evidence of Debt; Repayment of Loans.epayment of Loans
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(e) As evidence of the Loans hereunder, on the Closing Date the Borrower
shall deliver to each Lender one promissory note evidencing its Pro Rata
Percentage of the Loans made hereunder. Such promissory note will evidence each
Lenders' Pro Rata Percentage of the Revolving Loan and L/C Exposure, and each
Lenders' exposure under any Competitive Loan, if any.
Fees.ON 2.05. Fees
(a) The Borrower agrees to pay to each Lender, through the Administrative
Agent, such Facility Fees as are set forth in any Fee Letters (the "Facility
Fees") in accordance with such terms set forth in the Fee Letters.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in its Fee Letter at the times and in
the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Lender, through the
Administrative Agent, on the last day of March, June, September and December of
each year and on the date on which the Commitment of such Lender shall be
terminated as provided herein, a fee (an "L/C Participation Fee") calculated on
such Lender's Pro Rata Percentage of the average daily aggregate L/C Exposure
(excluding the portion thereof attributable to unreimbursed L/C Disbursements)
during the preceding quarter (or shorter period commencing with the date hereof
or ending with the Maturity Date or the date on which all Letters of Credit have
been canceled or have expired and the Commitments of all Lenders shall have been
terminated) at a rate equal to the Applicable Percentage from time to time used
to determine the interest rate on Borrowings comprised of Eurodollar Revolving
Loans pursuant to Section 2.06 hereof, and (ii) to the Issuing Bank with respect
to each Letter of Credit the standard fronting, issuance and drawing fees
specified from time to time by the Issuing Bank (the "Issuing Bank Fees").
Subject to Section 9.09 hereof and Applicable Law, all L/C Participation Fees
and Issuing Bank Fees shall be computed on the basis of the actual number of
days elapsed in a year of 365 or 366 days, as applicable.
(d) Subject to Section 9.09 hereof, the Borrower agrees to pay to each
Lender, through the Administrative Agent, on the last day of March, June,
September and December of each year and on the date on which the Commitment of
such Lender shall be terminated as provided herein, the Borrower shall pay to
the Administrative Agent for the account of Lenders commitment fees (the
"Commitment Fees") equal to the sum of (i) on the average daily amount of the
excess, if any, of (A) the lesser of the Total Commitment or the Borrowing Base
over (B) the Total Exposure, at the per annum rate of .50%, plus (ii) to the
extent the Borrowing Base is less than the Total Commitment, the average daily
amount of the excess, of (A) the Total Commitment over (B) the Borrowing Base,
at the per annum rate of .25%, commencing with the first such date after the
Closing Date, and continuing until the Commitment has been reduced to zero or
terminated. Notwithstanding anything in this Agreement to the contrary, in each
determination of the Borrowing Base and the Total Commitment in connection with
this Section 2.05(d), the amount of any completion Guarantee deducted from the
Borrowing Base and the Total Commitment in accordance with the definition of
each such term shall be added back to the Borrowing Base and the Total
Commitment, respectively. Subject to Section 9.09 hereof and Applicable Law, all
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as applicable.
(e) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable, except in
accordance with the provisions of Section 9.09 hereof.
Interest on Loans.Interest on Loans
(a) Subject to the provisions of Section 2.07 hereof, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when
the Alternate Base Rate is determined by reference to the Prime Rate and over a
year of 360 days at all other times) at a rate per annum equal to the Alternate
Base Rate. If the amount of interest payable in respect of any interest
computation period is limited to the Highest Lawful Rate in accordance with the
definition of Alternate Base Rate, and the amount of interest payable in respect
of any subsequent interest computation period would be less than the Maximum
Amount, then the amount of interest payable in respect of such subsequent
interest computation period shall be automatically increased to the Maximum
Amount; provided that at no time shall the aggregate amount by which interest
paid has been increased pursuant to this sentence exceed the aggregate amount by
which interest has been reduced had the Alternate Base Rate not been limited to
the Highest Lawful Rate.
(b) Subject to the provisions of Section 2.07 hereof, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan and on the last day of each Interest Period except as
otherwise provided in this Agreement. The applicable Alternate Base Rate or
Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as
the case may be, shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
Default Interest. Notwithstanding any other provision of this Agreement
and the other Loan Papers except Section 9.09 hereof to the contrary, if there
shall exist any Event of Default hereunder, the Borrower shall pay interest on
the Obligations to but excluding the date of actual payment (after as well as
before judgment) at a rate per annum equal to the lesser of (a) the Highest
Lawful Rate and (b) a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) equal to the sum of the Alternate Base Rate plus 1.00%.
Alternate Rate of Interest. In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any Interest Period for a
Eurodollar Borrowing the Administrative Agent shall have determined that dollar
deposits in the principal amounts of the Loans comprising such Borrowing are not
generally available in the London interbank market, or that the rates at which
such dollar deposits are being offered will not adequately and fairly reflect
the cost to the Required Lenders of making or maintaining Eurodollar Revolving
Loans during such Interest Period, or that reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice of such determination to
the Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.03 hereof shall be
deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments;
ExtensTermination and Reduction of Commitments; Extension of Maturity
Date.
(a) The Commitments and the L/C Commitment shall automatically terminate
on the Maturity Date (and the same may be extended pursuant to paragraph (f) of
this Section).
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent (specifying the Commitments to be
terminated or reduced and the amount of reduction), the Borrower may at any time
in whole permanently terminate, or from time to time in part permanently reduce,
the Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000 and (ii) the Total Commitment shall not be reduced to an
amount that is less than the Total Exposure.
(c) If, as a result of a reduction described in paragraph (b) above, the
Total Exposure exceeds the Total Commitments, then the Borrower shall, on the
date of such reduction, repay Loans in accordance with this Agreement in an
aggregate principal amount sufficient to eliminate such excess.
(d) Each reduction in the Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments. The Borrower
shall pay, to the Administrative Agent for the account of the applicable
Lenders, on the date of each termination or reduction, the Commitment Fees on
the amount of the Commitments so terminated or reduced accrued to but excluding
the date of such termination or reduction.
(e) The Borrower may, by giving written notice to the Administrative Agent
(which shall promptly deliver a copy to each of the Lenders) not fewer than 15
days prior to the then current Maturity Date (the "Existing Maturity Date"),
extend the Maturity Date to the date that occurs 364 days after the Existing
Maturity Date (or if such 364th day is not a Business Day, the immediately
preceding Business Day); provided, however, that the Borrower may effect only
two extensions pursuant to this Section 2.09(e) hereof. Notwithstanding the
foregoing, the extension of the Existing Maturity Date shall not be effective
with respect to any Lender unless (i) no Default or Event of Default shall have
occurred and be continuing on both the date of the notice requesting such
extension and on the Existing Maturity Date and (ii) each of the representations
and warranties set forth in Article III hereof (including, without limitation,
those set forth in Section 3.06 hereof and Section 3.09 hereof) shall be true
and correct in all material respects on and as of each of the date of the notice
requesting such extension and the Existing Maturity Date with the same force and
effect as if made on and as of each such date, except to the extent such
representations and warranties expressly relate to an earlier date.
Conversion and Continuation of Borrowings.ion of Borrowings
(a) The Borrower shall have the right at any time upon prior irrevocable
notice to the Administrative Agent (x) not later than 12:00 (noon), Dallas,
Texas time, one Business Day prior to conversion, to convert any Eurodollar
Borrowing into an ABR Borrowing, (y) not later than 10:00 a.m., Dallas, Texas
time, three Business Days prior to conversion or continuation, to convert any
ABR Borrowing into a Eurodollar Borrowing or to continue any Eurodollar
Borrowing as a Eurodollar Borrowing for an additional Interest Period, and (z)
not later than 10:00 a.m., Dallas, Texas time, three Business Days prior to
conversion, to convert the Interest Period with respect to any Eurodollar
Borrowing to another permissible Interest Period, subject in each case to the
following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and 2.08(b)
hereof regarding the principal amount and maximum number of Borrowings of
the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Revolving Loan (or
portion thereof) being converted shall be paid by the Borrower at the time
of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.14
hereof;
(v) any portion of a Borrowing maturing or required to
be repaid in less than one month may not be converted into or
continued as a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing; and
(vii) after the occurrence and during the continuance of a Default
or an Event of Default, no outstanding Loan may be converted into, or
continued for an additional interest period as, a Eurodollar Revolving
Loan.
(b) Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
Prepayment. . Prepayment
(a) The Borrower shall have the right at any time and from time to time to
prepay any Borrowing, in whole or in part, upon at least two Business Days'
prior written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) to the Administrative Agent before 11:00 a.m.,
Dallas, Texas time; provided, however, that each partial prepayment shall be in
an amount that is an integral multiple of $1,000,000 and not less than
$3,000,000.
(b) In the event of any termination of the Commitments, the Borrower shall
repay or prepay all its outstanding Borrowings (and irrevocably cash
collateralize the L/C Exposure in the manner contemplated by Section 2.20(j)
hereof) on the date of such termination. In the event of any partial reduction
of the Commitments, then (i) at or prior to the effective date of such reduction
or termination, the Administrative Agent shall notify the Borrower and the
Lenders of the aggregate amount of outstanding Revolving Loans or Total
Exposure, as the case may be, after giving effect thereto and (ii) if the sum of
the aggregate amount of outstanding Revolving Loans or Total Exposure, as the
case may be, at the time would exceed the lesser of the Total Commitments and
the Borrowing Base, after giving effect to such reduction or termination, then
the Borrower shall, on the date of such reduction or termination, repay or
prepay Borrowings in an amount sufficient to eliminate such excess.
(c) Whenever and on each occasion that the Total Exposure exceeds the
lesser of (i) the Total Commitments and (ii) the Borrowing Base, the Borrower
will immediately prepay the Revolving Loans by the amount necessary to reduce
the Total Exposure to an amount less than or equal to the Total Commitments and
the Borrowing Base.
(d) In the event the amount of any prepayment required to be made above
shall exceed the aggregate principal amount of the applicable outstanding ABR
Loans (the amount of any such excess being called the "Escrow Amount"), the
Borrower shall have the right, in lieu of making such prepayment in full, to
prepay all the outstanding applicable ABR Loans and to deposit an amount equal
to the Escrow Amount with the Administrative Agent in a cash collateral account
maintained by and in the sole dominion and control of the Administrative Agent.
Any amounts so deposited shall be held by the Administrative Agent as collateral
for the Obligations and applied to the prepayment of outstanding Eurodollar
Revolving Loans at the end of the current Interest Periods applicable thereto.
On any Business Day on which (x) collected amounts remain on deposit in or to
the credit of such cash collateral account after giving effect to the payments
made on such day and (y) the Borrower shall have delivered to the Administrative
Agent a written request or telephonic request (which shall be promptly confirmed
in writing) that such remaining collected amounts be invested in the Permitted
Investments specified in such request, the Administrative Agent shall use its
reasonable efforts to invest such remaining collected amounts in such Permitted
Investments; provided, however, that the Administrative Agent shall have
continuous dominion and full control over any such investments (and over any
interest that accrues thereon) to the same extent that it has dominion and
control over such cash collateral account and no Permitted Investment shall
mature after the end of the Interest Period for which it is to be applied. The
Borrower shall not have the right to withdraw any amount from such cash
collateral account until such Eurodollar Revolving Loans and accrued interest
thereon are paid in full or if a Default or Event of Default then exists or
would result.
(e) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.11 shall be subject to Section 2.14 hereof but otherwise without premium or
penalty. All prepayments under this Section 2.11 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
SECTION 2.12. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision of this Agreement, if after the
date of this Agreement any change in any Law or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
Law) shall change the basis of taxation of payments to any Lender or the Issuing
Bank of the principal of or interest on any Eurodollar Revolving Loan made by
such Lender or any Fees or other amounts payable hereunder (other than changes
in respect of taxes imposed on the overall net income (including without
limitation franchise taxes on net income, branch profit taxes and alternate
minimum income taxes) of such Lender or the Issuing Bank by the jurisdiction in
which such Lender or the Issuing Bank is incorporated or has its principal
office or by any political subdivision or taxing authority therein), or shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
extended by any Lender or the Issuing Bank (except any such reserve requirement
which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or
the Issuing Bank or the London interbank market any other condition affecting
this Agreement or Eurodollar Revolving Loans made by such Lender or any Letter
of Credit or participation therein, and the result of any of the foregoing shall
be to increase the cost to such Lender or the Issuing Bank of making or
maintaining any Eurodollar Revolving Loan or increase the cost to any Lender of
issuing or maintaining any Letter of Credit or purchasing or maintaining a
participation therein or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder whether of principal, interest or
otherwise, by an amount deemed by such Lender or the Issuing Bank to be
material, then the Borrower will pay to such Lender or the Issuing Bank, as the
case may be, upon demand such additional amount or amounts as will compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any Law, agreement or guideline regarding
capital adequacy, or any change after the date hereof in any such Law, agreement
or guideline (regardless of whether the change in such Law, agreement or
guideline has been adopted) or in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
the Issuing Bank or any Lender's or the Issuing Bank's holding company with any
request or directive regarding capital adequacy (whether or not having the force
of Law) of any Governmental Authority has or would have the effect of reducing
the rate of return on such Lender's or the Issuing Bank's capital or on the
capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made or participations in Letters of
Credit purchased by such Lender pursuant hereto or the Letters of Credit issued
by the Issuing Bank pursuant hereto to a level below that which such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company could
have achieved but for such applicability, adoption, change or compliance (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy) by an amount deemed by such Lender or the Issuing Bank to be material,
then from time to time the Borrower shall pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in
reasonable detail the basis for computation of the amount or amounts necessary
to compensate such Lender or the Issuing Bank or its holding company, as
applicable, as specified in paragraph (a) or (b) above shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Bank the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided,
however, that in no event shall the Borrower be obligated to make any payment
under this Section 2.12 in respect of increased costs incurred prior to the
period commencing 90 days prior to the date on which demand for compensation in
respect of such increased costs is first made. In addition, the Borrower shall
not incur liability for additional amounts with respect to changes in the basis
of taxation described above for periods of time before such Lender or Issuing
Bank becomes aware of the change in such basis except in the case of any
retroactive application of such a change. The protection of this Section shall
be available to each Lender and the Issuing Bank regardless of any possible
contention of the invalidity or inapplicability or the Law, agreement, guideline
or other change or condition that shall have occurred or been imposed.
Change in Legality.hange in Legality
(a) Notwithstanding any other provision of this Agreement, if, after the
date hereof, any change in any Law or regulation or in the interpretation
thereof by any Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender to make or maintain
any Eurodollar Revolving Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Revolving Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Revolving Loans will not
thereafter (for the duration of such unlawfulness) be made by such Lender
hereunder (or be continued for additional Interest Periods and ABR Loans
will not thereafter (for such duration) be converted into Eurodollar
Revolving Loans), whereupon any request for a Eurodollar Borrowing (or to
convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional interest Period) shall, as to such
Lender only, be deemed a request for an ABR Loan (or a request to continue
an ABR Loan as such for an additional Interest Period or to convert a
Eurodollar Revolving Loan into an ABR Loan, as the case may be), unless
such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar
Revolving Loans made by it be converted to ABR Loans, in which event all
such Eurodollar Revolving Loans shall be automatically converted to ABR
Loans as of the effective date of such notice as provided in paragraph (b)
below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Revolving Loans that would have been made by such Lender or
the converted Eurodollar Revolving Loans of such Lender shall instead be applied
to repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Revolving Loans.
(b) For purposes of this Section 2.13, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Revolving Loan made by such
Lender, if lawful, on the last day of the Interest Period currently applicable
to such Eurodollar Revolving Loan; in all other cases such notice shall be
effective on the date of receipt by the Borrower.
Indemnity. The Borrower shall indemnify each Lender against any loss or
expense that such Lender may sustain or incur as a consequence of (a) any event,
other than a default by such Lender in the performance of its obligations
hereunder, which results in (i) such Lender receiving or being deemed to receive
any amount on account of the principal of any Eurodollar Revolving Loan prior to
the end of the Interest Period in effect therefor, (ii) the conversion of any
Eurodollar Revolving Loan to an ABR Loan, or the conversion of the Interest
Period with respect to any Eurodollar Revolving Loan, in each case other than on
the last day of the Interest Period in effect therefor, or (iii) any Eurodollar
Revolving Loan to be made by such Lender (including any Eurodollar Revolving
Loan to be made pursuant to a conversion or continuation under Section 2.10
hereof) not being made after notice of such Loan shall have been given by the
Borrower hereunder for any reason other than default by a Lender (any of the
events referred to in this clause (a) being called a "Breakage Event") or (b)
any default in the making of any payment or prepayment required to be made
hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its cost of
obtaining funds for the Eurodollar Revolving Loan that is the subject of such
Breakage Event for the period from the date of such Breakage Event to the last
day of the Interest Period in effect (or that would have been in effect) for
such Loan over (ii) the amount of interest likely to be realized by such Lender
in redeploying the funds released or not utilized by reason of such Breakage
Event for such period. A certificate of any such Lender shall be delivered to
the Borrower and shall be conclusive absent manifest error, so long as such
certificate sets forth in reasonable detail any amount or amounts which such
Lender is entitled to receive pursuant to this Section 2.14 and the basis of
computation of the amount or amounts necessary to compensate such Lender.
Pro Rata Treatment. Except as required under Section 2.13 hereof, each
Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each payment of the Facility Fees and
Commitment Fees, each reduction of the Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Loans). Each Lender agrees that in computing such Lender's portion
of any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender's percentage of such Borrowing to the next higher
or lower whole dollar amount.
Sharing of Setoffs. Each Lender agrees that if it shall, through the
exercise of a right of banker's lien, setoff or counterclaim against the
Borrower, or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any Debtor Relief Law or other
similar Law or otherwise, or by any other means, obtain payment (voluntary or
involuntary) in respect of any Loan or Loans or L/C Disbursement as a result of
which the unpaid principal portion of its Revolving Loans and participations in
L/C Disbursements shall be proportionately less than the unpaid principal
portion of the Revolving Loans and participations in L/C Disbursements of any
other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Revolving Loans and L/C Exposure of
such other Lender, so that the aggregate unpaid principal amount of the
Revolving Loans and L/C Exposure and participations in Revolving Loans and L/C
Exposure held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount of all Revolving Loans and L/C Exposure then outstanding
as the principal amount of its Revolving Loans and L/C Exposure prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Revolving Loans and L/C Exposure outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.16 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Revolving Loan or L/C Disbursement deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing by the Borrower to such Lender by reason thereof as fully
as if such Lender had made a Loan directly to the Borrower in the amount of such
participation.
Payments..17. Payments
(a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any L/C Disbursement or any Fees or other amounts)
hereunder not later than 12:00 (noon), Dallas, Texas time, on the date when due
in immediately available dollars, without setoff, defense or counterclaim. Each
such payment (other than Issuing Bank Fees, which shall be paid directly to the
Issuing Bank,) shall be made to the Administrative Agent at its offices at 901
Main, 64th Floor, Dallas, Texas 75202.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.
Taxes.N 2.18. Taxes
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.17 hereof, free and clear of and without deduction for
any and all current or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto excluding (i) income
taxes imposed on the net income (including without limitation, branch profit
taxes and alternative minimum income taxes of the Administrative Agent, any
Lender or the Issuing Bank (or any transferee or assignee thereof, including a
participation holder (any such entity a "Transferee")), (ii) franchise taxes
imposed on the net income of the Administrative Agent, any Lender or the Issuing
Bank (or Transferee), in each case by the jurisdiction under the Laws of which
the Administrative Agent, such Lender or the Issuing Bank (or Transferee) is
organized or any political subdivision thereof or by the jurisdiction in which
the applicable lending or issuing office of the Administrative Agent, such
Lender, or the Issuing Bank (or Transferee) is located or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, being
called "Taxes"). If the Borrower shall be required to deduct any Taxes from or
in respect of any sum payable hereunder to the Administrative Agent, any Lender
or the Issuing Bank (or and Transferee), (i) the sum payable shall be increased
by the amount (an "additional amount") necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.18) the Administrative Agent, such Lender or the Issuing
Bank or Transferee), as the case may be, shall receive an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with Applicable
Law.
(b) In addition, the Borrower agrees to pay to the relevant Governmental
Authority in accordance with Applicable Law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from and payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent, each Lender and
the Issuing Bank (or Transferee) for the full amount of Taxes and Other Taxes
paid by the Administrative Agent, such Lender or the Issuing Bank (or
Transferee), as the case may be, and any liability, (including penalties,
interest and expenses (including reasonable attorney's fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability prepared by the
Administrative Agent, a Lender or the Issuing Bank (or Transferee), or the
Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Administrative Agent, any Lender or the
Issuing Bank (or Transferee), as the case may be, makes written demand therefor.
(d) If the Administrative Agent, a Lender or the Issuing Bank (or
Transferee) receives a refund in respect of any Taxes or Other Taxes as to which
it has been indemnified by the Borrower or with respect to which the Borrower
has paid additional amounts pursuant to this Section 2.18, it shall within 30
days from the date of such receipt pay over to the Borrower (a) such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section 2.18 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the Issuing Bank (or Transferee) and (b)
interest paid by the relevant Governmental Authority with respect to such
refund; provided, however, that the Borrower, upon the request of the
Administrative Agent, such Lender or the Issuing Bank (or Transferee), shall
repay the amount paid over to the Borrower (plus penalties, interest or other
charges) to the Administrative Agent, such Lender or the Issuing Bank (or
Transferee) in the event the Administrative Agent, such Lender or the Issuing
Bank (or Transferee) is required to repay such refunds to such Governmental
Authority. If the Borrower determines in good faith that a reasonable basis
exists for contesting any Tax or Other Tax, the Administrative Agent, the
Lender, Issuing Bank or Transferee, as applicable, shall cooperate with the
Borrower in challenging such Tax or Other Tax at the Borrower's expense if
requested by the Borrower (it being understood and agreed that the
Administrative Agent, the Lender, Issuing Bank or Transferee, as applicable,
shall have no obligation to contest or responsibility for contesting such Tax or
Other Tax).
(e) As soon as practicable after the date of any payment of Taxes or Other
Taxes by the Borrower to the relevant Governmental Authority, the Borrower will
deliver to the Administrative Agent, at its address referred to in Section 9.01
hereof, the original or a certified copy of any receipt actually issued by such
Governmental Authority evidencing payment thereof.
(f) Each Lender (or Transferee) that is organized under the Laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, a certificate containing representations regarding the status of such
Non-U.S. Lender as not being a bank for purposes of Section 881(c) of the Code,
as not being a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and as not being a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code)), properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or reduced rate of, U.S. Federal withholding
tax on payments by the Borrower under this Agreement. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of a Transferee that is a participation holder,
on or before the date such participation holder becomes a Transferee hereunder)
and on or before the date, if any, such Non-U.S. Lender changes its applicable
lending office by designating a different lending office (a "New Lending
Office"). In addition, each Non-U.S. Lender shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered by such
Non-U S. Lender. Notwithstanding any other provision of this Section 2.18(f), a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
Section 2.18(f) that such Non-U.S. Lender is not legally able to deliver.
(g) The Borrower shall not be required to indemnify any Non-U.S. Lender or
to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed on the date such Non-U.S. Lender became a party
to this Agreement (or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; provided, however,
that this paragraph (g) shall not apply (x) to any Transferee or New Lending
Office that becomes a Transferee or New Lending Office as a result of an
assignment, participation, transfer or designation made at the request of the
Borrower and (y) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee), acting through a New Lending Office,
would be entitled to receive (without regard to this paragraph (g)) do not
exceed the indemnity payment or additional amounts that the Person making the
assignment, participation or transfer to such Transferee, or the Lender (or
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts would not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (g) above.
(h) Nothing contained in this Section 2.18 shall require any Lender or the
Issuing Bank (or any Transferee) or the Administrative Agent to make available
any of its tax returns (or any other information that it deems to be
confidential or proprietary).
(i) Each Bank represents that, to the best of its knowledge, it is not a
party to any "conduit financing arrangement" as defined under applicable
Treasury Regulations promulgated under the Code.
(j) Any Non-U.S. Lender that could become completely exempt from
withholding of any tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof ("U.S.
Taxes") in respect of payment of any obligations due to such Non-U.S. Lender
under this Agreement ("Lender Obligations") if the Lender Obligations were in
registered form for U.S. Federal income tax purposes may request the Borrower
(through the Administrative Agent), and the Borrower agrees thereupon, to
exchange any promissory note(s) evidencing such Lender Obligations for
promissory note(s) registered as provided in subsection (k) below (each, a
"Registered Note"). Registered Notes may not be exchanged for promissory notes
that are not Registered Notes.
(k) From and after the time, if any, when any Lender requests a Registered
Note, the Borrower shall maintain, or cause to be maintained, a register (the
"Register") on which it enters the name of the registered owner of the Lender
Obligation(s) evidenced by each Registered Note. A Registered Note and the
Lender Obligation(s) evidenced thereby may be assigned or otherwise transferred
in whole or in part only by registration of such assignment or transfer of such
Registered Note and the Lender Obligation(s) evidenced thereby on the Register
(and each Registered Note shall expressly so provide). Any assignment or
transfer of all or part of such Lender Obligation(s) and the Registered Note(s)
evidencing the same shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Registered Note(s) evidencing such
Lender Obligation(s), duly endorsed by (or accompanied by a written instrument
of assignment or transfer duly executed by) the Registered Noteholder thereof,
and thereupon one or more new Registered Note(s) in the same aggregate principal
amount shall be issued to the designated assignee(s) or transferee(s) pursuant
to, in accordance with, and subject to the restrictions of, Section 9.04 hereof.
Prior to the due presentment for registration of assignment or transfer of any
Registered Note, the Borrower and the Administrative Agent shall treat the
Person in whose name such Lender Obligation(s) and the Registered Note(s)
evidencing the same is registered as the owner thereof for the purpose of
receiving all payments thereon and for all other purposes, notwithstanding any
notice to the contrary. The Register shall be available for inspection by the
Administrative Agent and any Lender at any reasonable time upon reasonable prior
notice.
SECTION 2.19. Assignment of Commitments Under Certain
CircumAssignment of Commitments Under Certain Circumstances; Duty to
Mitigate.
(a) In the event (i) any Lender or the Issuing Bank delivers a certificate
requesting compensation pursuant to Section 2.12 hereof, (ii) any Lender or the
Issuing Bank delivers a notice described in Section 2.13 hereof or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.18 hereof, the Borrower may, at its sole expense and
effort (including with respect to the processing and recordation fee referred to
in Section 9.04(b) hereof), upon notice to such Lender or the Issuing Bank and
the Administrative Agent, require such Lender or the Issuing Bank to transfer
and assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04 hereof), all of its interests, rights and obligations
under this Agreement to an assignee that shall assume such assigned obligations
which assignee may be another Lender, if a Lender accepts such assignment);
provided that (x) such assignment shall not conflict with any Law, rule or
regulation or order of any court or other Governmental Authority having
jurisdiction, (v) the Borrower shall have received the prior written consent of
the Administrative Agent (and, if a Commitment is being assigned, of the Issuing
Bank), which consent shall not unreasonably be withheld, and (z) the Borrower or
such assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans and
participations in L/C Disbursements of such Lender or the Issuing Bank plus all
Fees and other amounts accrued for the account of such Lender or the Issuing
Bank hereunder (including any amounts under Section 2.12 hereof and Section 2.14
hereof); provided further that, if prior to any such transfer and assignment the
circumstances or event that resulted in such Lender's or the Issuing Bank's
claim for compensation under Section 2.12 hereof or notice under Section 2.13
hereof or the amounts paid pursuant to Section 2.18 hereof, as the case may be,
cease to cause such Lender or the Issuing Bank to suffer increased costs or
reductions in amounts received or receivable or reduction in return on capital,
or cease to have the consequences specified in Section 2.13, or cease to result
in amounts being payable under Section 2.18 hereof, as the case may be,
including as a result of any action taken by such Lender or the Issuing Bank
pursuant to paragraph (b) below), or if such Lender or the Issuing Bank shall
waive its right to claim further compensation under Section 2.12 hereof in
respect of such circumstances or event or shall withdraw its notice under
Section 2.13 hereof or shall waive its right to further payments under Section
2.18 hereof in respect of such circumstances or event, as the case may be, then
such Lender or the Issuing Bank shall not thereafter be required to make any
such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation under
Section 2.12 hereof, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.13 hereof or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.18, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.12 hereof or enable it
to withdraw its notice pursuant to Section 2.13 hereof or would reduce accounts
payable pursuant to Section 2.18 hereof, as the case may be, in the future. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender or the Issuing Bank in connection with any such filing or assignment,
delegation and transfer.
Letters of Credit.Letters of Credit
General. The Borrower may request the issuance of a Letter of Credit, in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank,
appropriately completed, for the account of the Borrower, at any time and from
time to time while the Commitments remain in effect. This Section shall not be
construed to impose an obligation upon the Issuing Bank to issue any Letter of
Credit that is inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
ConditNotice of Issuance, Amendment, Renewal, Extension; Certain Conditions. In
order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the Borrower shall hand deliver or
telecopy to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a completed
Application and a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, the date of
issuance, amendment, renewal or extension, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) below), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare such Letter of Credit. In
connection with a request for the issuance of a Letter of Credit, in the event
of any inconsistency between the terms of any Application and the provisions of
this Agreement, the provisions of this Agreement shall be controlling. A Letter
of Credit shall be issued, amended, renewed or extended only if, and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension (A) the L/C Exposure shall not exceed
$15,000,000 and (B) the sum of the Total Exposure shall not exceed the lesser of
(i) the Total Commitment and (ii) the Borrowing Base. The Issuing Bank shall not
enter into any amendment of an outstanding Letter of Credit which has not been
requested or approved in writing by the Borrower.
Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Maturity Date, unless such Letter of Credit (i) expires by its terms on an
earlier date or (ii) has a one-year tenor and provides for the renewal thereof
for additional one-year periods, so long as such periods referred to in this
clause (ii) shall not in any event expire at a date later than the date that is
five Business Days prior to the Maturity Date.
Participations. By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each such Lender hereby acquires from the
applicable Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Pro Rata Percentage of the aggregate amount available to bc drawn under
such Letter of Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Lender's Pro Rata Percentage of each L/C Disbursement
made by the Issuing Bank and not reimbursed by the Borrower forthwith on the
date due as provided in Section 2.02(f) hereof. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
Reimbursement. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C Disbursement not later than two hours after
the Borrower shall have received notice from the Issuing Bank that payment of
such draft will be made, or, if the Borrower shall have received such notice
later than 10:00 a.m., Dallas, Texas time, on any Business Day, not later than
10:00 a.m., Dallas, Texas time, on the immediately following Business Day.
Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter
of Credit or any other Loan Paper, or any term or provision
therein;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of any Letter of
Credit or this Agreement;
(iii) the existence of any claim, setoff, defense or other right
that the Borrower, any other party guaranteeing, or otherwise obligated
with, the Borrower, any Subsidiary of the Borrower, On Command Corp. or
any of its Subsidiaries, or other Affiliate of any thereof or any other
Person may at any time have against the beneficiary under any Letter of
Credit, the Issuing Bank, the Administrative Agent or any Lender or any
other Person, whether in connection with this Agreement or any other
related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other Person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
The foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by Applicable Law) suffered by the Borrower
that are caused by the Issuing Bank's gross negligence or wilful misconduct in
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof; it is understood that the Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of
Credit (i) the Issuing Bank's exclusive reliance on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever and (ii) any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute wilful misconduct or gross negligence of
the Issuing Bank
Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the Borrower of such demand for payment and whether the Issuing Bank has
made or will make an L/C Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to any
such L/C Disbursement. The Administrative Agent shall promptly give each Lender
notice thereof.
Interim Interest. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of the Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.08(f) hereof, at the rate per annum that would
apply to such amount if such amount were an ABR Loan.
Resignation or Removal of the Issuing Bank. The Issuing Bank may resign at
any time by giving 90 days' prior written notice to the Administrative Agent,
the Lenders and the Borrower, and may be removed at any time by the Borrower by
notice to the Issuing Bank, the Administrative Agent and the Lenders. Subject to
the next succeeding paragraph, upon the acceptance of any appointment as the
Issuing Bank hereunder by a Lender that shall agree to serve as successor
Issuing Bank, such successor shall succeed to and become vested with all the
interests, rights and obligations of the retiring Issuing Bank and the retiring
Issuing Bank shall be discharged from its obligations to issue additional
Letters of Credit hereunder. At the time such removal or resignation shall
become effective, the Borrower shall pay all accrued and unpaid fees pursuant to
Section 2.05(c) hereof. The acceptance of any appointment as the Issuing Bank
hereunder by a successor Lender shall be evidenced by an agreement entered into
by such successor, in a form satisfactory to the Borrower and the Administrative
Agent, and, from and after the effective date of such agreement, (i) such
successor Lender shall have all the rights and obligations of the previous
Issuing Bank under this Agreement and (ii) references herein to the term Issuing
Bank, shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the resignation or removal of the Issuing Bank hereunder, the
retiring Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such resignation or removal, but
shall not be required to issue additional Letters of Credit.
Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders holding participations in outstanding Letters of
Credit representing greater than 50% of the aggregate undrawn amount of all
outstanding Letters of Credit thereof and of the amount to be deposited, deposit
in an account with the Administrative Agent, for the benefit of the Lenders, an
amount in cash equal to the L/C Exposure as of such date. Such deposit shall be
held by the Administrative Agent as collateral for the payment and performance
of the obligations of the Borrower under this Agreement. The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account and, if so requested by the Borrower, shall
invest the deposits therein in Permitted Investments. Other than any interest
earned on the investment of such deposits in Permitted Investments, which
investments shall be made at the option and sole discretion of the
Administrative Agent, such deposits shall not bear interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account
shall (i) automatically be applied by the Administrative Agent to reimburse the
Issuing Bank for L/C Disbursements for which it has not been reimbursed, (ii) be
held for the satisfaction of the reimbursement obligations of the Borrower for
the L/C Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of the Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit), be applied to satisfy
other obligations of the Borrower under this Agreement.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the
Issuing Bank and each of the Lenders that:
Organization; Powers. The Borrower and each of its Subsidiaries (except as
hereinafter provided) (a) is a corporation duly organized, validly existing and
in good standing under the Laws of the jurisdiction of its organization, (b) has
all requisite power and authority to own its property and assets and to carry on
its business as now conducted and as proposed to be conducted, (c) is qualified
to do business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
corporate power and authority to execute, deliver and perform its obligations
under this Agreement, the other Loan Papers, as appropriate, and each other
agreement or instrument contemplated thereby to which it is or will be a party
and to borrow hereunder. Denver Arena Company, LLC and Avalanche Sub are each
limited liability companies duly organized pursuant to its Articles of
Organization and the laws of the State of Colorado, validly existing and in good
standing under the Laws of such State. Nuggets Sub is a limited partnership duly
organized under the laws of the State of Delaware.
Authorization. The execution, delivery and performance by the Borrower of
this Agreement, the promissory note, the borrowing by the Borrower hereunder,
the granting by the Borrower and the other Obligors of all Liens securing the
Obligations, and the execution of all Loan Papers (collectively, the
"Transactions") (a) have been duly authorized by all requisite partnership,
membership, corporate and, if required, stockholder action, as applicable, and
(b) will not (i) violate (A) any provision of Law, statute, rule or regulation,
or of the certificate or articles of incorporation or other constitutive
documents, by-laws or organizational documents of the Borrower or any of its
Subsidiaries, (B) any order of any Governmental Authority or (C) any provision
of any indenture, material agreement or other material instrument to which the
Borrower or any Subsidiary of the Borrower or On Command Corp. or any of its
Subsidiaries is a party or by which any of them or any of their property is or
may be bound, provided that, for the first 90 days after the Closing Date, the
Borrower may still be pursuing the consent of the NBA and the NHL, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower or any Subsidiary of the
Borrower or On Command Corp. or any of its Subsidiaries.
Enforceability. This Agreement has been duly executed and delivered by the
Borrower and constitutes a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms. All other Loan
Papers have been duly executed and delivered by the Borrower and each of the
Obligors, as appropriate, and each constitutes the legal, valid and binding
obligation of the Borrower and each Obligor, as appropriate, enforceable against
the Borrower and each Obligor, as appropriate, in accordance with its terms.
Governmental Approvals. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be
required in connection with the Transactions, except for such as have been made
or obtained and are in full force and effect.
Financial Statements. The Borrower has heretofore furnished to the Lenders
its consolidated balance sheets and statements of income and equity and cash
flow (a) as of and for the fiscal year ended December 31, 1995, audited by and
accompanied by the opinion of Deloitte & Touche, LLP, independent public
accountants, and (b) as of and for the fiscal quarter and the portion of the
fiscal year ended June 30, 1996, certified by its chief financial officer. Such
financial statements present fairly the financial condition and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as
of such dates and for such periods. Such balance sheets and the notes thereto
disclose all material liabilities, direct or contingent, of the Borrower and its
consolidated Subsidiaries as of the dates thereof. Such financial statements
were prepared in accordance with GAAP applied on a consistent basis.
No Material Adverse Change. There has been no material adverse change in
the business, assets, operations, financial condition, or material agreements of
the Borrower, any of its Subsidiaries, On Command Corp. and any of its
Subsidiaries, taken as a whole, since June 30, 1996.
Title to Properties; Possession Under Leases.sion Under Leases
(a) Each of the Borrower and its Subsidiaries has good and marketable
title to, or valid leasehold interests in, all its material properties and
assets, except for minor defects in title that do not interfere with its ability
to conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes. All such material properties and assets are
free and clear of Liens, other than Liens expressly permitted by Section 6.02
hereof.
(b) Each of the Borrower and its Subsidiaries has complied with all
material obligations under all material leases to which it is a party and all
such leases are in full force and effect. Each of the Borrower and its
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) Each of the Borrower and its Subsidiaries owns or possesses, or could
obtain ownership or possession of, on terms not materially adverse to it, all
patents, trademarks, service marks, trade names, copyrights, licenses and rights
with respect thereto necessary for the present conduct of its business, without
any known conflict with the rights of others, and free from any burdensome
restrictions, except where such conflicts and restrictions could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
The Subsidiaries and On Command Corp. Schedule 3.08 hereto sets forth as
of the date hereof a list of all Subsidiaries of the Borrower and On Command
Corp. and its Subsidiaries, and the percentage ownership interest of the
Borrower or On Command Corp., as the case may be, therein. As of the date
hereof, the shares of Capital Stock or other ownership interests so indicated on
Schedule 3.08 are fully paid and non-assessable and are owned by the Borrower,
directly or indirectly, free and clear of all Liens.
Litigation; Compliance with Laws.pliance with Laws
(a) Except as set forth on Schedule 3.09 hereof, there are not any
actions, suits or proceedings at Law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any Subsidiary of the Borrower
or On Command Corp. or any of its Subsidiaries, or any business, property or
rights of any such Person, or the NBA or NHL or any of their related entities in
which the Borrower or any Subsidiary of the Borrower owns any Capital Stock (i)
that involve this Agreement or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
(b) None of the Borrower or any of the Subsidiaries of the Borrower or On
Command Corp. or any of its Subsidiaries, or any of their respective material
properties or assets is in violation of, nor will the continued operation of
their material properties and assets as currently conducted violate, any Law, or
is in default with respect to any judgment, writ, injunction, decree or order of
any Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
Agreements.0. Agreements
(a) Neither the Borrower nor any of the Subsidiaries of the Borrower nor
On Command Corp. nor any of its Subsidiaries is a party to any agreement or
subject to any corporate restriction that, since December 31, 1995, has resulted
or would reasonably be expected to result in a Material Adverse Effect, except
as disclosed on Schedule 3.10 hereof.
(b) Neither the Borrower nor any of the Subsidiaries of the Borrower nor
On Command Corp. nor any of its Subsidiaries is in default in any manner under
any provision of any indenture or other agreement or instrument evidencing
Indebtedness, or any other material agreement or instrument to which it is a
party or by which it or any of its properties or assets are or may be bound,
where such default could reasonably be expected to result in a Material Adverse
Effect.
Federal Reserve Regulations.serve Regulations
(a) Neither the Borrower nor any of the Subsidiaries of the Borrower is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation G, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding
CompanInvestment Company Act; Public Utility Holding Company Act. Neither the
Borrower nor any Subsidiary of the Borrower is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
Use of Proceeds. The Borrower will use the proceeds of the Loans and will
request the issuance of Letters of Credit only for the purposes specified in the
preamble to this Agreement.
Tax Returns. Each of the Borrower, its Subsidiaries, On Command Corp. and
its Subsidiaries has filed or caused to be filed all Federal, state, and
material local and foreign tax returns or materials required to have been filed
by it and has paid or caused to be paid all taxes due and payable by it and all
assessments received by it, except taxes that are being contested in good faith
by appropriate proceedings and for which the Borrower or On Command Corp. or
such Subsidiary of the Borrower or On Command Corp., as applicable, shall have
set aside on its books adequate reserves.
No Material Misstatements. None of (a) the S-4 Registration Statement (at
the time it is declared effective under the Securities Act of 1933), or (b) any
other written information, report, financial statement, exhibit or schedule
prepared by the Borrower and furnished to the Administrative Agent or any Lender
in connection with the negotiation of this Agreement and the other Loan Papers
or in connection with any of the Corporate Restructuring transactions, or
included herein or delivered pursuant hereto contained (in the case of
subsection (a) above) and contained, contains or will contain (in the case of
subsection (b) above) when furnished any material misstatement of fact or
omitted, omits or will omit when furnished to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were, are or will be made, not misleading.
Employee Benefit Plans. Each of the Borrower and its ERISA Affiliates is
in compliance in all material respects with the applicable provisions of ERISA
and the Code and the regulations and published interpretations thereunder. No
ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events, could reasonably be expected to
result in liability of the Borrower or any of its Subsidiaries or On Command
Corp. or any of its Subsidiaries which would be material to the Borrower and its
Subsidiaries on a consolidated basis.
Solvency..17. Solvency
(a) Immediately after the consummation of the Transactions and the other
transactions to occur on the Closing Date and immediately following the making
of each Loan made and the issuance of each Letter of Credit issued and after
giving effect to the application of the proceeds thereof, (i) the fair value of
the assets of the Borrower and the Subsidiaries of the Borrower on a
consolidated basis, at a fair valuation, will exceed the debts and liabilities,
direct, subordinated, contingent or otherwise, of the Borrower and the
Subsidiaries of the Borrower on a consolidated basis; (ii) the present fair
saleable value of the property of the Borrower and the Subsidiaries of the
Borrower on a consolidated basis will be greater than the amount that will be
required to pay the probable liability of the Borrower and the Subsidiaries of
the Borrower on a consolidated basis on their debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) the Borrower and the Subsidiaries
of the Borrower on a consolidated basis will be able to pay their debts and
liabilities, direct, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) the Borrower and the
Subsidiaries of the Borrower on a consolidated basis will not have unreasonably
small capital with which to conduct the businesses in which they are engaged as
such businesses are now conducted and are proposed to be conducted following the
Closing Date.
(b) The Borrower does not intend to, and does not believe that it or any
of its Subsidiaries will, incur debts beyond its ability to pay such debts as
they mature, taking into account the timing and amounts of cash to be received
by it or any such Subsidiary and the timing and amounts of cash to be payable on
or in respect of its Indebtedness or the Indebtedness of any such Subsidiary.
Insurance. Schedule 3.18 hereto sets forth a true, complete and correct
description of all insurance maintained by or for the Borrower or for or by its
Subsidiaries as of the date hereof and the Closing Date. As of each such date,
such insurance is in full force and effect and all premiums have been duly paid.
The Borrower and its Subsidiaries have insurance in such amounts and covering
such risks and liabilities as are in accordance with normal industry practice.
Labor Matters. As of the date hereof and the Closing Date, there are no
strikes, lockouts or slowdowns against the Borrower or any Subsidiary of the
Borrower pending or, to the knowledge of the Borrower, threatened which could
reasonably be expected to have a Material Adverse Effect. The hours worked by
and payments made to employees of the Borrower and the Subsidiaries of the
Borrower have not been in violation of the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign Law dealing with such matters. All
payments due from the Borrower or any Subsidiary of the Borrower, or for which
any claim may be made against the Borrower or any Subsidiary of the Borrower, on
account of wages and employee health and welfare insurance and other benefits,
have been paid or accrued as a liability on the books of the Borrower or such
Subsidiary. The consummation of the Transactions to be consummated on or prior
to the Closing Date will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which the Borrower or any Subsidiary of the Borrower is bound.
Environmental Matters. Except as set forth in Schedule 3.20:
(a) The properties owned, operated or leased by the Borrower and the
Subsidiaries of the Borrower (the "Properties") do not contain any Hazardous
Materials in amounts or concentrations which (i) constitute, or constituted a
violation of, or (ii) could reasonably be expected to give rise to liability
under, Environmental Laws, which violations and liabilities, in the aggregate,
could reasonably be expected to result in a Material Adverse Effect;
(b) All Environmental Permits have been obtained and are in effect with
respect to the Properties and operations of the Borrower and the Subsidiaries of
the Borrower, and the Properties and all operations of the Borrower and the
Subsidiaries of the Borrower are in compliance, and in the last two years have
been in compliance, with all Environmental Laws and all necessary Environmental
Permits, except to the extent that such non-compliance or failure to obtain any
necessary permits, in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect;
(c) Neither the Borrower nor any of the Subsidiaries of the Borrower has
received any notice of an Environmental Claim in connection with the Properties
or the operations of the Borrower or the Subsidiaries of the Borrower or with
regard to any Person whose liabilities for environmental matters the Borrower or
the Subsidiaries of the Borrower has retained or assumed, in whole or in part,
contractually, which, in the aggregate, could reasonably be expected to result
in a Material Adverse Effect, nor do the Borrower or the Subsidiaries of the
Borrower have knowledge that any such notice will be received or is being
threatened;
(d) Hazardous Materials have not been transported from the Properties, nor
have Hazardous Materials been generated, treated, stored or disposed of at, on
or under any of the Properties in a manner that could reasonably be expected to
give rise to liability under any Environmental Law, nor have the Borrower or the
Subsidiaries of the Borrower retained or assumed any liability contractually,
with respect to the generation, treatment, storage or disposal of Hazardous
Materials, which transportation, generation, treatment, storage or disposal, or
retained or assumed liabilities, in the aggregate, could reasonably be expected
to result in a Material Adverse Effect.
Ownership of the Franchises.of the Franchises
(a) NBA Franchise. Nuggets Sub is , on the Closing Date, the owner of, and
have good and marketable title to, the NBA Franchise, and the NBA Franchise is
in compliance with all of the rules and regulations of, and is in good standing
with, the NBA, and all agreements related thereto. A true, correct and complete
copy of the NBA Documents in effect on the Closing Date, together with any all
amendments, supplements or other material agreements relating thereto have been
delivered to the Administrative Agent.
(b) NHL Franchise. Avalanche Sub is, on the Closing Date, the owner of,
and have good and marketable title to, the NHL Franchise, and the NHL Franchise
is in compliance with all of the rules and regulations of, and is in good
standing with, the NHL, and all agreements related thereto. A true, correct and
complete copy of the NHL Documents in effect on the Closing Date, together with
any all amendments, supplements or other material agreements relating thereto
have been delivered to the Administrative Agent.
Strikes. There are (a) no labor disputes or grievances pending against the
NBA, the NHL, the Sports Subs, Nuggets Sub or Avalanche Sub, the Borrower or any
Subsidiary of the Borrower, (b) no unfair labor practice charges or grievances
pending or in process or, to the knowledge of the Borrower, threatened by or on
behalf of any employee or group of employees of the NBA, the NHL, the Sports
Subs, Nuggets Sub or Avalanche Sub, the Borrower or any Subsidiary of the
Borrower, or (c) no written complaints received by Sports Subs, Nuggets Sub,
Avalanche Sub, the Borrower or any other Subsidiary of the Borrower, or, to the
knowledge of the Borrower, threatened, or, with respect to unresolved
complaints, on file, with any tribunal alleging employment discrimination by the
NBA, the NHL, the Borrower or any Subsidiary of the Borrower, pursuant to the
provisions of any collective bargaining agreement, which, in each case, could
reasonably be expected to cause a Material Adverse Effect.
Film Inventory. Film Inventory of the Borrower and its
Subsidiaries on the Closing Date is set forth on Schedule 3.23 hereto.
SECTION 3.24. Survival of Representations and Warranties, etc. Survival of
Representations and Warranties, etc. All representations and warranties made
under this Agreement and the other Loan Papers shall be deemed to be made at and
as of the Closing Date and at and as of the date of each Revolving Loan, and
each shall be true and correct when made, except to the extent (a) previously
fulfilled in accordance with the terms hereof, (b) subsequently inapplicable, or
(c) previously waived in writing by the Administrative Agent and the Lenders
with respect to any particular factual circumstance. The representations and
warranties made under this Agreement and the other Loan Papers shall be deemed
applicable to each Subsidiary of the Borrower and On Command Corp. and each of
its Subsidiaries, as applicable, as of the formation or acquisition of such
Subsidiary and at and as of each date the representations and warranties are
remade pursuant to this provision. All representations and warranties made under
this Agreement and the other Loan Papers shall survive, and not be waived by,
the execution hereof by the Administrative Agent and the Lenders, any
investigation or inquiry by the Administrative Agent or any Lender, or by the
making of any Loan under this Agreement and the other Loan Papers.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
All Credit Events. On the date of each Borrowing, and on the date of each
issuance of a Letter of Credit (each such event being called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 hereof, as applicable (or such notice
shall have been deemed given in accordance with Section 2.03 hereof), or, in the
case of the issuance of a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a duly completed Application and a
notice requesting the issuance of such Letter of Credit, required by Section
2.20(b) hereof.
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of such
Credit Event with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date, and there shall have occurred no event which caused a Material Adverse
Effect.
(c) The Borrower shall be in compliance in all material respects with the
terms and provisions set forth herein on its part to be observed or performed,
and at the time of and immediately after such Credit Event, no Event of Default
or Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself, the
Lenders and the Issuing Bank, a favorable written opinion of (i) the General
Counsel of the Borrower, (ii) Latham & Watkins, counsel for the Borrower and
each of its Subsidiaries, and (iii) Latham & Watkins, in its capacity as counsel
to the Borrower and each of its Subsidiaries in connection with the Corporate
Restructuring, in each case (y) dated the Closing Date, and (z) covering such
other matters relating to this Agreement, the Transactions and the Corporate
Restructuring as the Administrative Agent shall reasonably request, and in form
and substance acceptable to the Administrative Agent and its counsel, and the
Borrower hereby requests and instructs such counsel to deliver such opinion. The
opinions shall be addressed to the Issuing Bank, the Administrative Agent and
the Lenders.
(b) All legal matters incident to this Agreement, the Borrowings and
extensions of credit hereunder shall be reasonably satisfactory to the Lenders,
to the Issuing Bank and to the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
the Borrower and each of its Subsidiaries, certified as of a recent date by the
Secretary of State of the state of its organization, and a certificate as to the
good standing of the Borrower and each of its Subsidiaries as of a recent date,
from such Secretary of State; (ii) a certificate of the Secretary or Assistant
Secretary of the Borrower dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of the by-laws of the Borrower and
each of its Subsidiaries as in effect on the Closing Date and at all times since
a date prior to the date of the resolutions described in clause (B) below, (B)
that attached thereto is a true and complete copy of resolutions duly adopted by
the Board of Directors of the Borrower and each of its Subsidiaries authorizing
the execution, delivery and performance of this Agreement, the Loan Papers and
the borrowings hereunder, as appropriate, and that such resolutions have not
been modified rescinded or amended and are in full force and effect, (C) that
the certificate or articles of incorporation of the Borrower and each of its
Subsidiaries have not been amended since the date of the last amendment thereto
shown on the certificate of good standing furnished pursuant to clause (i)
above, (D) as to the incumbency and specimen signature of each officer executing
this Agreement, each Loan Paper, or any other document delivered in connection
herewith on behalf of the Borrower and each of its Subsidiaries and (E) that
attached thereto is a true and complete copy of each of the COMSAT Agreements
and OCC Agreements as in effect on the Closing Date; (iii) a certificate of
another officer as to the incumbency and specimen signature of the Secretary or
Assistant Secretary executing the certificate pursuant to (ii) above; and (iv)
such other documents as the Lenders, the Issuing Bank or Donohoe, Jameson &
Carroll, P.C., counsel for the Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a Compliance Certificate,
dated the Closing Date and signed by a Financial Officer of the Borrower,
confirming compliance with (i) the conditions precedent set forth in paragraphs
(b) and (c) of Section 4.01 hereof, with paragraphs (f), (g), (i), (j) and (k)
of this Section 4.02, (ii) with the Borrowing Base and (iii) the financial
covenants set forth in Sections 6.09, 6.10 and 6.11 hereof, and certifying to
the fact that there exists no Default or Event of Default under the terms of
this Agreement, and consummating the Agreement and making the initial Loans
hereunder would not cause a Default or Event of Default.
(e) Each Lender and the Administrative Agent shall have received payment
in full of all Fees and other amounts due and payable on or prior to the Closing
Date, including reimbursement or payment of all reasonable out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder.
(f) All indebtedness of the Borrower owed to the syndication of financial
institutions under its existing revolving credit facility shall be paid in full
by the end of the Closing Date.
(g) The Borrower shall have delivered duly executed and completed copies
by the Borrower and each of the Subsidiaries of the Borrower, as applicable, to
each of the Lenders of each of the following documents and agreements, in form
and substance satisfactory to each Lender: this Agreement, applicable Fee
Letters, pledge agreements pledging 100% of the Capital Stock of all
Subsidiaries of the Borrower except the Capital Stock of Avalanche Sub, Nuggets
Sub, Ascent Network Services, Inc. and Ascent Sports to secure the Obligations,
a pledge agreement pledging all the Capital Stock of On Command Corp. owned by
the Borrower or any of its Subsidiaries to secure the Obligations and guaranties
of the Obligations executed by all Subsidiaries of the Borrower except Avalanche
Sub and Nuggets Sub. Each such pledge agreement delivered on the Closing Date
shall be accompanied by stock certificates evidencing 100% of the Capital Stock
of each such pledged entity (except On Command Corp., which such stock shall
evidence not less than 57% of the Capital Stock of On Command Corp.), together
with stock powers executed in blank. The Borrower shall have delivered a
promissory note to each Lender, in form and substance satisfactory to each such
Lender and any other Loan Papers reasonably required by any Lender in connection
with this Agreement.
(h) All governmental and third party approvals necessary or advisable in
connection with the Corporate Restructuring, the Transactions and the continuing
operations of the Borrower and its Subsidiaries and On Command Corp. and its
Subsidiaries shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any Governmental Authority which would restrain, prevent or
otherwise impose adverse conditions on the Corporate Restructuring or the
Transactions.
(i) Except as contemplated by the Corporate Restructuring and the
Transactions, or as specifically contemplated hereby, there shall not have
occurred any material change in the capitalization (whether in debt or in
equity), corporate structure or assets of the Borrower or any of its
Subsidiaries and On Command Corp. or any of its Subsidiaries, since June 30,
1996.
(j) No action, suit, litigation or similar proceeding by or before any
Governmental Authority shall exist or, in the case of litigation by a
Governmental Authority, be threatened, with respect to the Corporate
Restructuring or the Transactions contemplated thereby or otherwise, which would
be likely in the reasonable opinion of the Required Lenders to have a Material
Adverse Effect.
(k) The structure and documentation of the Corporate Restructuring and the
Transactions contemplated thereby, and all corporate and other proceedings taken
or to be taken and all documents incidental thereto, shall be reasonably
satisfactory in form and substance to the Administrative Agent and Donohoe,
Jameson & Carroll, P.C., counsel for the Administrative Agent, and each Lender
shall have received copies of all such documents as such Lender, acting through
the Administrative Agent, may reasonably request. All transactions necessary to
consummate the Corporate Restructuring shall have been completed.
(l) The Lenders shall have received a certification from the chief
financial officer of the Borrower, in form and substance reasonably satisfactory
to the Lenders, as to the solvency of the Borrower and its Subsidiaries on a
consolidated basis after giving effect to the Corporate Restructuring and the
consummation of the other transactions contemplated hereby.
(m) The Administrative Agent shall have received evidence satisfactory to
the Administrative Agent that each Person necessary for the pledge of the stock
in the Sports Subs, except the NBA and the NHL, has consented to such
transactions.
(n) The Administrative Agent shall have received copies of all NBA
Documents, NHL Documents, Broadcasting Agreements (other than Superstation
Agreements and National Media Contracts copies of which are not provided to
Teams by the NBA or NHL), Concession Agreements, Avalanche License Documents,
Nuggets License Documents, Parking Agreements, Player Contracts, Related
Contracts and Advertising Agreements.
(o) The Administrative Agent shall have received copies of a description
in detail satisfactory to the Administrative Agent describing all material
pending litigation and, to the knowledge of the Borrower, threatened litigation
in which each Obligor, the NBA and the NHL and the related NBA and NHL entities
in which the Borrower or any Subsidiary of the Borrower owns any Capital Stock
is a defendant.
(p) The On Command Corp. Loan Facility must have been
consummated or must be consummated simultaneously with the Transaction.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the Obligations shall have been paid in full and all Letters of Credit have
been canceled or have expired and all amounts drawn thereunder have been
reimbursed in full, the Borrower will, and will cause each of its Subsidiaries
to:
Existence; Businesses and Properties.es and Properties
(a) Do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence, except as otherwise expressly
permitted under Section 6.05 hereof.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; comply in all material respects with
all applicable Laws, rules, regulations and decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted; and at all
times maintain and preserve all property material to the conduct of such
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times.
Insurance. Keep its insurable properties insured in accordance with
industry standards at all times by financially sound and reputable insurers;
maintain such other insurance, to such extent and against such risks, including
(a) fire and other risks insured against by extended coverage, as is customary
with companies in the same or similar businesses operating in the same or
similar locations, (b) public liability insurance against claims for personal
injury or death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by it, and (c)
key-man and player disability and life insurance in minimum amounts and in the
form required by the NBA and NHL, but in no event in amounts less than or having
coverage less than standard practice for Teams; and maintain such other
insurance as may be required by Law.
Obligations and Taxes. Pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such payment and
discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall have
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and such contest operates to suspend collection of the contested
obligation, tax, assessment or charge and enforcement of a Lien.
Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 105 days after the end of each fiscal year, its consolidated
and consolidating balance sheet and related consolidated and consolidating
statements of income and cash flow, showing the financial condition of the
Borrower and its consolidated Subsidiaries as of the close of such fiscal year
and the results of their operations during such year, and a comparison of such
financial position and results of operations as of the corresponding date and
for the previous fiscal year, all audited (in the case of the consolidated
financial statements) by Deloitte & Touche, LLP or other independent public
accountants of recognized national standing acceptable to the Required Lenders
and accompanied by an opinion of such accountants (which shall not be qualified
in any material respect) to the effect that such consolidated financial
statements fairly present the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheet and related
consolidated statements of earnings and cash flow showing the financial
condition of the Borrower and its consolidated Subsidiaries as of the close of
such fiscal quarter and the results of their operations during such fiscal
quarter and the then elapsed portion of the fiscal year, and a comparison of
such financial position and results of operations as of the corresponding date
and for the corresponding periods in the previous fiscal year, all certified by
one of its Financial Officers as fairly presenting the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustment;
(c) (i) concurrently with any delivery of financial statements under
sub-paragraph (a) above, a certificate of the accounting firm opining on or
certifying such statements (which certificate may be limited to accounting
matters and disclaim responsibility for legal interpretations) certifying that
no Event of Default has occurred in Sections 6.01, 6.02(j), 6.03, 6.04, 6.05,
6.06, 6.09, 6.10 and 6.11 hereof; and (ii) concurrently with any delivery of
financial statements under sub-paragraph (a) or (b) above, a Compliance
Certificate of a Financial Officer of the Borrower certifying that no Event of
Default or Default has occurred or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto and setting forth
computations in reasonable detail (which detail shall be reasonably satisfactory
to the Administrative Agent) demonstrating compliance with the covenants
contained in Sections 6.01, 6.03, 6.04, 6.06, 6.09, 6.10 and 6.11 hereof and
showing the Borrowing Base;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements, registration statements (other
than on Form S-8) and other similar materials filed by the Borrower or any
Subsidiary of the Borrower with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the function of said
Commission, or with any national securities exchange, or distributed generally
to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Subsidiary of the Borrower, On Command Corp., the Subsidiaries of On Command
Corp., the NBA, the NHL, any of the related entities of the NBA or NHL in which
the Borrower or any Subsidiary of the Borrower or On Command Corp. or any of its
Subsidiaries owns any Capital Stock, or compliance with the terms of this
Agreement and the other Loan Papers, as the Administrative Agent or any Lender
may reasonably request.
Litigation and Other Notices. Furnish to the Administrative
Agent, the Issuing Bank and each Lender prompt written notice of the
following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken with
respect thereto;
(b) the (i) filing or commencement of, or any written threat or notice of
intention of any Person to file or commence, any action, suit or proceeding,
whether at Law or in equity or by or before any Governmental Authority, or (ii)
the making of any written claim, in either case against the Borrower, any
Affiliate of the Borrower, the NBA or the NHL, as to which there is a reasonable
possibility of an adverse determination and which if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) any development (including, without limitation, developments in
pending litigation, developments in pending or threatened labor disruption and
loss or, to the knowledge of the Borrower, threatened loss, of either Franchise
or any Broadcasting Agreement or other material NHL Document or NBA Document)
that has resulted in, or could reasonably be expected to result in, a Material
Adverse Effect; and
(d) receipt or anticipated receipt by the Borrower or any Subsidiary of
the Borrower of the proceeds of any and each expansion of the NHL or the NBA.
Employee Benefits. (a) Comply in all material respects with the applicable
provisions of ERISA and the Code and (b) furnish to the Administrative Agent (i)
as soon as possible after, and in any event within 10 days after any Responsible
Officer of the Borrower or any ERISA Affiliate knows or has reason to know that,
any ERISA Event has occurred that, alone or together with any other ERISA Event
could reasonably be expected to result in liability of the Borrower in an
aggregate amount exceeding $55,000,000, a statement of a Financial Officer of
the Borrower setting forth details as to such ERISA Event and the action, if
any, that the Borrower proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
InspecMaintaining Records; Access to Properties and Inspections. Keep proper
books of record and account in which full, true and correct entries in
conformity with GAAP and all requirements of Law are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries and On Command Corp. and its Subsidiaries,
to, permit any representatives designated by the Administrative Agent or any
Lender, upon reasonable prior written notice, to visit and inspect the financial
records and the properties of the Borrower or any Subsidiary of the Borrower or
On Command Corp. or its Subsidiaries at reasonable times and as often as
reasonably requested and to make extracts from and copies of such financial
records, and permit any representatives designated by the Administrative Agent
or any Lender to discuss the affairs, finances and condition of the Borrower or
any Subsidiary of the Borrower or On Command Corp. or any of its Subsidiaries
with the officers thereof and (with the concurrence of the Administrative Agent)
independent accountants therefor (provided that the Borrower has the right to
have a representative present for any meeting with the Borrower's independent
accountants).
Use of Proceeds. Use the proceeds of the Loans and request the issuance of
Letters of Credit only for the purposes set forth in the preamble to this
Agreement.
Compliance with Environmental Laws.nvironmental Laws
(a) Comply, and exercise best efforts to cause all lessees and other
Persons occupying its Properties to comply, in all material respects with all
Environmental Laws and Environmental Permits applicable to its operations and
Properties; and obtain and renew all material Environmental Permits necessary
for its operations and Properties; and conduct any Remedial Action to the extent
required by and in accordance with Environmental Laws; provided, however, that
none of the Borrower or any of its Subsidiaries shall be required to undertake
any Remedial Action to the extent that its obligation to do so is being
contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances.
(b) If a Default caused by reason of a breach of paragraph (a) above or
Section 3.20 hereof shall have occurred and be continuing, at the request of the
Required Lenders through the Administrative Agent, provide to the Lenders within
45 days after such request, at the expense of the Borrower, a "Phase 1"
environmental site assessment report for the Properties which are the subject of
such default prepared by an environmental consulting firm acceptable to the
Administrative Agent and indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance or Remedial Action in
connection with such Properties.
Compliance with Material Contracts. Except as set forth in Section 6.07
hereof, maintain in full force and effect (including exercising any available
renewal option), and without amendment or modification, each material contract,
unless the failure so to maintain any such material contract or replacement
contract or contracts thereof (or any amendment or modification thereto) could
not, individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
Arena/Complex Construction. The Borrower shall provide the Administrative
Agent and each Lender with quarterly written reports regarding the status of
plans/budget/financing and other information regarding the Arena/Complex
Construction, which such information must be in detail reasonably acceptable to
the Administrative Agent.
NBA and NHL Obligations. The Borrower shall timely perform all of its
obligations under the NBA Documents and the NHL Documents, and all other
obligations relating to the NBA and NHL which are binding on it, except where
the failure to so perform would not result in a Material Adverse Effect.
Operation of Franchises. Each of Ascent Sports, Ascent Sports Holdings,
Nuggets Sub, Avalanche Sub and the Borrower shall take any and all action which
is necessary or appropriate to keep each of the Franchises in full force and
effect and in good standing, shall conform to and duly observe in all material
respects the requirements of the NBA Documents and NHL Documents, respectively,
and shall promptly notify the Administrative Agent of any violation, or alleged
violation thereof, and shall provide the Administrative Agent with copies of all
written documents or notices relating thereto. Each of Ascent Sports, Ascent
Sports Holdings, Nuggets Sub, Avalanche Sub and the Borrower shall actively
promote and conduct, and use its best efforts to promote and conduct, ticket
sales for its basketball operations and hockey operations (both season and
individual Game tickets).
Services Contracts. Each of Ascent Sports, Ascent Sports Holdings, Nuggets
Sub, Avalanche Sub and the Borrower shall comply and use all reasonable efforts
to compel compliance by third parties through appropriate means, with all
material terms and conditions of all Services Contracts and to maintain all of
the foregoing in full force and effect, except where the failure to so perform
would not result in a Material Adverse Effect.
SECTION 5.15. Key Man Life Insurance/NBA and NHL Financial
InformKey Man Life Insurance/NBA and NHL Financial Information.
(a) Within 30 days after the Closing Date, the Borrower shall have
provided the Administrative Agent with copies of all key-man life insurance
contracts which exist for any of the employees of the Borrower and its
Subsidiaries, and
(b) Within 10 days after receipt by the Borrower or any Subsidiary of the
Borrower of such information, the Borrower shall have provided the
Administrative Agent with copies of all financial statements for each of the NBA
and the NHL and the related NBA and NHL entities in which the Borrower or any
Subsidiary of the Borrower owns any Capital Stock to the extent such financial
statements are provided to the Teams.
Arena/Complex Notice. Not later than 30 Business Days prior to the
commencement of construction on the Arena/Complex, the Borrower shall give each
Lender written notice of the date of such intended commencement of construction,
together with a summary in reasonable detail of all final financing plans
regarding such construction. Upon request of the Administrative Agent, the
Borrower shall promptly provide the Administrative Agent with such additional
information regarding such construction as requested by the Administrative Agent
or any Lender.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the Obligations have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been reimbursed
in full:
Indebtedness. The Borrower will not, and will not cause or
permit any of its Subsidiaries of the Borrower or On Command Corp. or
its Subsidiaries to, issue any Preferred Stock, or to issue, incur,
create, assume or permit to exist any Indebtedness, except:
(a) Indebtedness of the Borrower and any Subsidiary of the Borrower for
borrowed money existing on the date hereof and set forth in Schedule 6.01
hereto, but not any extensions, renewals or replacements of such Indebtedness;
(b) Indebtedness of any Subsidiary of the Borrower owed to the Borrower or
to a Wholly Owned Subsidiary of the Borrower (except Denver Arena Company, LLC)
that does not otherwise violate any provision of this Agreement or any other
Loan Paper;
(c) so long as there exists no Default or Event of Default both before and
after giving effect to the incurrence of such Indebtedness, Denver Arena
Company, LLC may incur Non-Recourse Arena Financing;
(d) so long as there exists no Default or Event of Default both before and
after giving effect to the incurrence of such Indebtedness, Beacon may incur
Non-Recourse Film Indebtedness;
(e) On Command Corp. and its Subsidiaries may incur Indebtedness under the
On Command Corp. Loan Facility, and, additionally, On Command Corp. may, so long
as there exists no Default or Event of Default both before and after giving
effect to each such issuance or incurrence, (i) issue Preferred Stock in a
maximum amount equal to $50,000,000, provided that such Preferred Stock must not
have terms more onerous than the terms in this Agreement and the Loan Papers,
and may not mature, require redemption or otherwise be redeemed or retired until
three years after the Obligations hereunder are repaid in full and the
Commitments have been terminated, and (ii) incur Indebtedness up to a maximum
outstanding amount of $50,000,000, provided that such Indebtedness must not have
terms more onerous than the terms in this Agreement and the Loan Papers;
(f) so long as there exists no Default or Event of Default both before and
after giving effect to the execution of such Guarantee, the Borrower may
Guarantee the completion of the construction of the Arena/Complex, provided that
(i) such Guarantee may not be in an aggregate amount in excess of $25,000,000;
and (ii) the amount of any such Guarantee reduces the Borrowing Base in
accordance with the terms of the definition thereof;
(g) so long as there exists no Default or Event of Default both before and
after giving effect to the incurrence of such Indebtedness, the Borrower or any
Subsidiary of the Borrower may incur Capital Lease Obligations in a maximum
aggregate amount not to exceed $10,000,000 at any one time outstanding;
(h) so long as there exists no Default or Event of Default both before and
after giving effect to the issuance of such Preferred Stock, the Borrower may
issue Preferred Stock, provided that the terms of such Preferred Stock require
payment-in-kind only until such date that is two years after the Maturity Date;
and
(i) in addition to Indebtedness permitted by subsections (a) through (h)
above, so long as there exists no Default or Event of Default both before and
after giving effect to the incurrence of such Indebtedness, the Borrower may
incur other unsecured Indebtedness up to a maximum amount outstanding at any one
time of $10,000,000, provided that the weighted average of the per annum
interest rates on such Indebtedness may not exceed 12%.
Notwithstanding anything in this Agreement or in any other Loan Paper to
the contrary, Ascent Sports Holdings may not operate as any business other than
a holding company for Capital Stock.
Liens. The Borrower will not, and will not cause or permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien on any of its
property or assets (including on the stock or other securities of any Person,
including any Subsidiary of the Borrower and On Command Corp. and its
Subsidiaries) now owned or hereafter acquired by it or them or on any income or
revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
existing on the date hereof and set forth in Schedule 6.02 hereto; provided that
such Liens shall secure only those obligations which they secure on the date
hereof;
(b) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary of the Borrower; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition and (ii) such Lien does not apply to any other property or assets of
such Subsidiary;
(c) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03 hereof;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03 hereof, which, in the aggregate, are not
substantial in amount and do not materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(e) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security Laws or regulations;
(f) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course or business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use of
real property and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Borrower or any of
its Subsidiaries;
(h) Liens granted by Denver Arena Company, LLC securing any permitted
Non-Recourse Arena Financing or the City and County of Denver's interest in the
Arena/Complex, but only to the extent such Liens are limited to the realty,
fixtures, equipment and other assets comprising the Arena/Complex (including
rights as a lessor under leases relating thereto);
(i) Liens granted by Beacon securing Non-Recourse Film Indebtedness
permitted hereby, but only to the extent such Liens are limited and apply only
to the film negatives for the Motion Pictures financed with such Indebtedness
and any rights of the Borrower or the Subsidiaries of the Borrower of ownership,
distribution or exploitation of such Motion Pictures;
(j) Liens securing Capital Lease Obligations permitted to be
incurred in accordance with the provisions of Section 6.01(g) hereof;
and
(k) Liens arising under the Loan Papers.
Sale and Lease Back Transactions.BacThe Borrower will not, and will not
cause or permit any of its Subsidiaries to, enter into any arrangement, directly
or indirectly, with any Person whereby it shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred, provided that, (a) nothing herein shall be deemed to
prevent the Borrower and its Subsidiaries from entering into operating leases,
(b) Denver Arena Company, LLC may enter into any such transaction with the City
of Denver regarding the real estate for the Arena/Complex, and (c) so long as
there exists no Default or Event of Default both before and after giving effect
thereto, the Borrower may consummate the sale leaseback transaction described on
Schedule 6.03 hereto.
Investments, Acquisitions, Loans and Advances. The Borrower es will not,
and will not cause or permit any of its Subsidiaries to, purchase, hold or
acquire any Capital Stock, evidences of indebtedness (other than restructured
receivables) or other securities of, make or permit to exist any loans or
advances to, or make or permit to exist any investment or any other interest in,
or make any acquisition of assets of any other Person as a going concern, or
create any Subsidiary (each, an "Investment"), except:
(a) Investments existing on the date hereof in the Capital
Stock set forth on Schedule 6.04 hereto;
(b) Permitted Investments;
(c) so long as there exists no Default or Event of Default both before and
after giving effect thereto, Investments by the Borrower in the Arena/Complex in
an aggregate amount for the Borrower not in excess of $30,000,000 in form and
substance substantially the same as the Investments made in the Arena/Complex
prior to the Closing Date, or in form and substance otherwise acceptable to the
Required Lenders;
(d) (i) Investments consisting of loans or advances to employees of the
Borrower or the Wholly Owned Subsidiaries, provided that such loans or advances
are made in the ordinary course of business and in accordance with company
policy, and provided further that the proceeds of such loan or advance are used
to finance employee related expenses (including relocation expenses and travel
and entertainment expenses), and (ii) so long as there exists no Default or
Event of Default both before and after giving effect thereto, Investments
pursuant to promissory notes to a Wholly Owned Subsidiary (except Denver Arena
Company, LLC), provided that such loans or advances are not subordinated to any
other Indebtedness or other obligations of such Subsidiary and rank pari passu
with all senior, unsecured Indebtedness of such Subsidiary;
(e) so long as there exists no Default or Event of Default both before and
after giving effect thereto, non cash Investments by the Borrower in
acquisitions, provided that (i) the Borrower must use its common Capital Stock
as consideration for each such acquisition and (ii) in no event shall more than
20% of the outstanding Capital Stock of the Borrower in the aggregate be used by
the Borrower for such acquisitions over the life of this Agreement;
(f) so long as there exists no Default or Event of Default both before and
after giving effect to any such Investment, the Borrower or any of its
Subsidiaries (except Denver Arena Company, LLC) may purchase shares of Capital
Stock of On Command Corp., so long as such shares are immediately delivered to
the Administrative Agent together with stock powers executed in blank and a duly
completed and executed pledge agreement in the form executed on the Closing
Date, pledging such shares to the Administrative Agent and the Lenders to secure
the Obligations;
(g) promissory notes delivered on or prior to the Closing Date in
connection with the Corporate Restructuring, which such promissory notes may not
have maturities in excess of one year; and
(h) in addition to those permitted Investments in (a) through (g) above,
so long as there exists no Default or Event of Default both before and after
giving effect to any such Investment, other Investments made by the Borrower up
to a maximum amount outstanding at any one time of $10,000,000.
Mergers, Consolidations and Sales of Assets. The Borrower will
not, and will not cause or permit any of its Subsidiaries to:
(a) merge into or consolidate with any Person, or permit any other Person
to merge into or consolidate with it, provided that, if there exists no Default
or Event of Default at the time thereof or immediately after giving effect
thereto (i) any Wholly Owned Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any Wholly
Owned Subsidiary may merge into or consolidate with any other Wholly Owned
Subsidiary in a transaction in which the surviving entity is a Wholly Owned
Subsidiary and no Person other than the Borrower or a Wholly Owned Subsidiary
receives any consideration, provided further that any such merger or
consolidation may not include any Subsidiary that incurred the Non-Recourse
Arena Financing; or
(b) sell, transfer, lease or otherwise dispose of (in one transaction or
in a series of transactions) all or any substantial part of its assets (whether
now owned or hereafter acquired) or any amount of Capital Stock of any
Subsidiary of the Borrower or On Command Corp., except that (i) the Borrower and
any Subsidiary of the Borrower may sell or dispose of inventory and obsolete
equipment in the ordinary course of business, (ii) so long as there exists no
Default or Event of Default both before and after giving effect thereto the
Borrower or any of its Subsidiaries may (A) make an Asset Disposition, so long
as (I) the cumulative aggregate consideration for all such Asset Dispositions
after the date hereof shall not exceed $10,000,000, and (II) such assets are not
used in the operation of the Nuggets Sub or the Avalanche Sub or the related
Teams, and (B) in addition to Asset Dispositions permitted by subsection (A)
above, make an Asset Disposition, so long as (I) the cumulative aggregate
consideration for all such Asset Dispositions after the date hereof (but
excluding the proceeds from sales of those assets described on Schedule 6.05
hereto) shall not exceed $10,000,000, (II) such assets are not used in the
operation of the Nuggets Sub or the Avalanche Sub or the related Teams, and
(III) the Borrowing Base is reduced by the Net Cash Proceeds of each such Asset
Disposition, (iii) so long as there exists no Default or Event of Default both
before and after giving effect thereto the Borrower or any of its Subsidiaries
may sell the Capital Stock described on Schedule 6.05 hereto, (iv) so long as
there exists no Default or Event of Default both before and after giving effect
thereto, the Borrower or the Denver Arena Company, LLC may sell the real estate
used for the Arena/Complex to the City and County of Denver, (v) so long as
there exists no Event of Default both before and after giving effect thereto,
any Wholly Owned Subsidiary of the Borrower may transfer all or any part of its
assets to the Borrower, and (vi) so long as there exists no Default or Event of
Default both before and after giving effect thereto, the Borrower may consummate
the sale leaseback transaction described on Schedule 6.03 hereto.
Notwithstanding anything to the contrary herein or in any other Loan Paper,
under no circumstance may the Borrower or any Subsidiary of the Borrower sell,
dispose of or transfer any of the Capital Stock of On Command Corp. or any other
Capital Stock owned by the Borrower, any Subsidiary of the Borrower or On
Command Corp. and its Subsidiaries, except the Capital Stock described on
Schedule 6.05 hereto.
SECTION 6.06. Dividends and Distributions; Restrictions on AbilitDividends
and Distributions; Restrictions on Ability of Subsidiaries to Pay Dividends. The
Borrower will not, and will not cause or permit any of its Subsidiaries to,
declare or pay, directly or indirectly, any dividend or make any other
distribution (by reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, with respect to any shares of its Capital
Stock or directly or indirectly redeem, purchase, retire or otherwise acquire
for value (or permit any Subsidiary of the Borrower to purchase or acquire) any
shares of any class of its Capital Stock or set aside any amount for any such
purpose; provided, however, that (i) any Subsidiary of the Borrower may declare
and pay dividends or make other distributions to another Wholly Owned Subsidiary
or to the Borrower, (ii) the Borrower may declare and pay dividends or make
other distributions that consist solely of common stock of the Borrower, (iii)
the Borrower may make redemptions or repurchases of its Capital Stock in
connection with employee stock options upon termination of such employment, for
an aggregate amount of consideration paid from and after the date hereof of up
to $10,000,000, in connection with any employee stock option or incentive plans,
and (iv) the Borrower may make dividends of Preferred Stock in accordance with
the terms and provisions of Section 6.01(h) hereof.
Transactions with Affiliates. Except as permitted in Section 6.06 hereof,
the Borrower will not, and will not cause or permit any of its Subsidiaries to,
sell or transfer any property or assets to, or purchase or acquire any property
or assets from, or otherwise engage in any other transactions with, or permit
any Subsidiary of the Borrower to sell or transfer any property or assets to, or
purchase or acquire any property or assets from, or otherwise engage in any
other transactions with any of its Affiliates (including, without limitation, On
Command Corp. and its Subsidiaries), except that the Borrower or any Subsidiary
of the Borrower may engage in any of the foregoing transactions in the ordinary
course of business as currently conducted or to be conducted at prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm's length basis from unrelated third parties;
provided, however, that the foregoing shall not preclude the Borrower nor any
Subsidiary of the Borrower from performing and complying with its obligations
under (a) the COMSAT Agreements and the OCC Agreements in accordance with the
terms thereof on the date hereof or, so long as any such amendment (or extension
to additional services, in the case of the Services Agreement) does not
materially adversely affect the interests of the Administrative Agent, the
Issuing Bank or the Lenders, as the same may be hereafter amended (or extended
to additional services) or (b) the transactions necessary to consummate the
Corporate Restructuring. Notwithstanding anything in this Agreement or the other
Loan Papers to the contrary, it is understood by all parties hereto that all or
any of the COMSAT Agreements or OCC Agreements may be terminated by the parties
thereto at any time during the term of this Agreement.
Limitation on Restrictive Agreements. The Borrower will not, and will not
cause or permit any of its Subsidiaries to, enter into any indenture, agreement,
instrument, financing document or other arrangement which, directly or
indirectly, contains any financial covenants or prohibits or restrains, or has
the effect of prohibiting or restraining, or imposes materially adverse
conditions upon: (a) the incurrence of Indebtedness, (b) the granting of Liens,
(c) the making or granting of Guarantees, (d) the payment of dividends or
distributions, (e) the purchase, redemption or retirement of any Capital Stock,
(f) the making of loans or advances, or (g) transfers or sales of property or
assets (including Capital Stock) by the Borrower or any of its Subsidiaries,
other than restrictions on the granting of Liens on, or the transfer of, assets
that are encumbered by Liens permitted under clauses (b), (h) and (i) of Section
6.02 hereof with respect to the property or assets covered by such Lien only,
provided that, notwithstanding the foregoing, (i) Denver Arena Company, LLC may
enter into restrictive agreements relating solely to the Denver Arena Company,
LLC and the Arena/Complex, each exclusively in connection with the Non-Recourse
Arena Financing, the Arena/Complex or the interest of the City and County of
Denver in the Arena/Complex, (ii) Beacon may enter into restrictive agreements
relating solely to Beacon, its Subsidiaries and the related Motion Pictures
invested in by Beacon and its Subsidiaries, each exclusively in connection with
Non-Recourse Film Indebtedness, and (iii) the Borrower may enter into any such
restrictive agreements relating to any Preferred Stock permitted under Section
6.01(h) hereof so long as no such restrictive agreement shall be effective or
binding on the Borrower or any of its Subsidiaries until the earlier of (A) the
Maturity Date and (B) the payment in full of the Obligations and the termination
of the Commitments.
Coverage Ratio. The Borrower will not permit the Coverage Ratio as of the
last day of any fiscal quarter ending during any period set forth below to be
less than the ratio set forth below for such period:
Quarter Ending Ratio Ratio
From the Closing Date to
through December 31, 1997 1.50 to
1.00
January 1, 1998 and thereafter 1.10
to 1.00
Financial Covenants Regarding On Command Corp. The Borrower rp
will not permit On Command Corp. to violate any of the following
covenants until the Obligations are repaid in full and the Commitment
has been terminated and there exists no L/C Exposure:
(a) Beginning with the first fiscal quarter of 1997, On Command
Corp.'s EBITDA, as of the last day of any fiscal quarter ending during the
term of this Agreement for the most recently completed four fiscal
quarters, may not be less than $50,000,000, provided that, for the 1997
fiscal year only, On Command Corp.'s EBITDA shall be calculated using only
the completed fiscal quarters ending in 1997, annualized; and
(b) as of the last day of any fiscal quarter ending during any
period set forth below, the ratio of On Command Corp.'s (a) Consolidated
Total Indebtedness plus any Preferred Stock issued by On Command Corp. to
(b) EBITDA for the most recently completed four fiscal quarters may not
exceed the ratio set forth below for such period:
Quarter Ending Ratio Ratio
Closing Date through 3.00 to 1.00
December 31, 1997
January 1, 1998 and 2.50 to 1.00
thereafter
In the event that On Command Corp. shall complete, directly or
through a Subsidiary of On Command Corp., a permitted acquisition, the
ratio of Consolidated Total Indebtedness of On Command Corp. to EBITDA of
On Command Corp. shall be determined thereafter, to the extent necessary,
by computing such ratio on a pro forma basis as if such acquisition had
been completed on the first day of the period of four consecutive fiscal
quarters ending on the dates indicated above occurring after the date of
such acquisition.
Film Inventory. The Borrower will not, and will not cause or permit any of
its Subsidiaries to cause or permit, gross Film Inventory on the balance sheet
of the Borrower and its consolidated Subsidiaries less the sum of (a) deferred
revenues associated with such Film Inventory, plus (b) contractually guaranteed
pre-sales that have been secured to be more than $60,000,000 at any time,
provided that, the $60,000,000 limitation shall be adjusted quarterly by
increasing or decreasing such number by Film Cash Flow, which such number shall
remain as adjusted until the following quarter at which point the $60,000,000
limitation shall be readjusted by Film Cash Flow.
Amendments to Organizational Documents. The Borrower will not, and will
not cause or permit any of its Subsidiaries to, enter into any amendment of any
term or provision, or accept any consent or waiver with respect to any such
provision, of its articles of incorporation, by-laws, or its organizational
documents, as applicable, in any manner that is material and adverse to the
Lenders.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made by the Borrower or
any of its Subsidiaries in or in connection with this Agreement or in any other
Loan Paper, or in connection with any agreement related to the Corporate
Restructuring or the borrowings or issuances of Letters of Credit hereunder; or
any representation, warranty, statement or written information contained in any
report, certificate, financial statement or other instrument prepared by the
Borrower or any Subsidiary of the Borrower and furnished by the Borrower or any
Subsidiary of the Borrower in connection with or pursuant to this Agreement or
any other Loan Paper, shall prove to have been false or misleading in any
material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan or
the reimbursement of principal with respect to any L/C Disbursement when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
any Fee or L/C Disbursement or any other amount (other than an amount referred
to in (b) above) due under this Agreement or any other Loan Paper, when and as
the same shall become due and payable, and such default shall continue
unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of the Borrower or On Command Corp. or any of its
Subsidiaries, as applicable, of any covenant, condition or agreement contained
in Sections 5.01(a), 5.05 or 5.08 hereof or in Article VI hereof;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of the Borrower or On Command Corp. or any of its
Subsidiaries, as applicable, of any covenant, condition or agreement contained
in this Agreement (other than those specified in (b), (c) or (d) above) or in
any Loan Paper and such default shall continue unremedied for a period of 15
days after notice thereof from the Administrative Agent or any Lender to the
Borrower;
(f) the Borrower or any Subsidiary of the Borrower, or On Command Corp. or
any Subsidiary of On Command Corp. shall (i) fail to pay any principal or
interest, regardless of amount, due in respect of any Indebtedness in a
principal amount in excess of $10,000,000, when and as the same shall become due
and payable, or (ii) fail to observe or perform any other term, covenant,
condition or agreement contained in any agreement or instrument evidencing or
governing any such Indebtedness if the effect of any failure referred to in this
clause (ii) is to cause, or to permit the holder or holders of such indebtedness
or a trustee on its or their behalf (with or without the giving of notice, the
lapse of time or both) to cause, such Indebtedness to become due prior to its
stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Borrower, any Subsidiary of the Borrower or On Command Corp.
or any Subsidiary of On Command Corp., or of a substantial part of the property
or assets of the Borrower, a Subsidiary of the Borrower or On Command Corp. or a
Subsidiary of On Command Corp., under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar Law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower, any Subsidiary of the Borrower or On Command Corp. or any
Subsidiary of On Command Corp. or for a substantial part of the property or
assets of the Borrower, a Subsidiary of the Borrower or On Command Corp. or a
Subsidiary of On Command Corp. or (iii) the winding-up or liquidation of the
Borrower, any Subsidiary of the Borrower or On Command Corp. or any Subsidiary
of On Command Corp.; and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(h) the Borrower, any Subsidiary of the Borrower or On Command Corp. or
any Subsidiary of On Command Corp. shall (i) voluntarily commence any proceeding
or file any petition seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar Law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) above, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower, any Subsidiary of the Borrower
or On Command Corp. or any Subsidiary of On Command Corp. or for a substantial
part of the property or assets of the Borrower, any Subsidiary of the Borrower
or On Command Corp. or any Subsidiary of On Command Corp., (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi)
become unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any action for the purpose of effecting any of
the foregoing;
(i) one or more judgments for the payment of money in an aggregate amount
in excess of $10,000,000 shall be rendered against the Borrower, any Subsidiary
of the Borrower or On Command Corp. or any Subsidiary of On Command Corp., or
any combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to levy upon assets or
properties of the Borrower, or any Subsidiary of the Borrower or On Command
Corp. or any Subsidiary of On Command Corp. to enforce any such judgment;
(j) an ERISA Event shall have occurred that, when taken together with all
other such ERISA Events, could reasonably be expected to result in liability of
the Borrower, any Subsidiary of the Borrower or On Command Corp. or any
Subsidiary of On Command Corp., or any combination thereof, in an aggregate
amount exceeding $10,000,000;
(k) there shall have occurred a Change in Control of the Borrower; or the
Borrower shall fail to own directly or indirectly, beneficially or of record,
shares of Capital Stock of On Command Corp. representing 50.1% or more of the
aggregate ordinary voting power of On Command Corp.; or the Borrower shall fail
to control, directly or indirectly, a majority of the Board of Directors of On
Command Corp., provided that, if the Borrower fails to own directly or
indirectly beneficially or of record shares of Capital Stock of On Command Corp.
representing less than 50.1% but more than 45%, and such failure is not a result
of the sale by the Borrower or any of its Subsidiaries of any such shares of
Capital Stock, no Default or Event of Default shall occur under this subsection
(k) until such date that is 30 days after the date of occurrence;
(l) On Command Corp. or any of its Subsidiaries shall: (i) fail to pay any
principal or interest, regardless of amount, due in respect of the On Command
Corp. Loan Facility, when and as the same shall become due and payable taking
into account any applicable period of grace thereunder, or (ii) fail to observe
or perform any other term, covenant, condition or agreement contained in any
agreement or instrument evidencing or governing the On Command Corp. Loan
Facility if the effect of any failure referred to in this clause (ii) is to
cause, or to permit the holder or holders of such indebtedness or a trustee on
its or their behalf (with or without the giving of notice, the lapse of time or
both) to cause, such Indebtedness to become due prior to its stated maturity;
(m) any of the following shall occur: (i) This Agreement, any pledge
agreement, guarantee or promissory note executed in connection with this
Agreement (collectively, the "Material Agreements"), or any material provision
of any thereof shall, for any reason, not be valid and binding on the Obligor
signatory thereto, or not be in full force and effect, or shall be declared to
be null and void; or (ii) the validity or enforceability of any Material
Agreement shall be contested by any Obligor, any Subsidiary of the Borrower, or
On Command Corp. or any of its Subsidiaries, or any of their Affiliates; or
(iii) any Obligor shall deny in writing that it has any or further liability or
obligation under its respective Material Agreements; or (iv) any default or
breach under any provision of any Material Agreement shall continue after the
applicable grace period, if any, specified in such Material Agreement;
(n) any of the following shall have occurred: (i) Any Loan Paper shall for
any reason (other than pursuant to the terms thereof) cease to create a valid
and perfected first priority Lien in the Collateral purported to be covered
thereby (except as permitted by the terms of this Agreement or consented to by
the Lenders); or (ii) at any time after the date that is 90 days after the
Closing Date, less than 100% of the Capital Stock of all of the Subsidiaries of
the Borrower shall be pledged to secure the Obligations, or (iii) less than all
of the issued and outstanding Capital Stock of On Command Corp. that is owned by
the Borrower or any Subsidiary of the Borrower shall be pledged to secure the
Obligations;
(o) there shall be a breach, violation or default under any material
provision of any of the NBA Documents or the NHL Documents, or any other
material agreement relating to the operation of either Franchise; or either the
NBA Franchise or the NHL Franchise is transferred, sold, or the governing bodies
of either the NBA or the NHL shall dissolve, or no longer function as a
governing body, or either league shall fail to continue substantially in
accordance with past practices; or any material contract with any international,
regional or local company which has a television, radio or cable-related
contractual relationship with the NBA, the NHL, Nuggets Sub, Avalanche Sub or
the Sports Subs, or with any other Person for the benefit of Nuggets Sub,
Avalanche Sub, the NBA Franchise or the NHL Franchise shall be violated,
breached or in default, or any such Person party thereto shall fail to honor any
such contract, if the effect of such failure results or could reasonably be
expected to have a Material Adverse Effect; or the NBA or NHL shall enter into a
collective bargaining agreement or change its governing agreements and documents
binding the NBA Franchise or the NHL Franchise in a manner which could
reasonably be expected to have a material adverse effect on Nuggets Sub,
Avalanche Sub, the Sports Subs or the Borrower, or materially and adversely
affect the Borrower's ability to perform and meet the terms of this Agreement
and the other Loan Papers, provided that, in any case, if the sum of (A) fair
market value of the Capital Stock of On Command Corp. owned by the Borrower on
such date, plus (B) 50% the fair market value of the unaffected Franchise on the
Closing Date is in excess of $250,000,000, there shall exist no Default or Event
of Default under the terms of this subsection (o);
(p) there shall occur either of the following events: (i) failure of
construction to begin on the Arena/Complex prior to August 31, 1997; or (ii) the
commencement of construction on the Arena/Complex at any time pursuant to terms,
conditions, plans, budget or financing that are not substantially similar in the
aggregate to those set forth in that certain letter from Mr. W.D. Minami of the
Borrower to Mr. G. Meador of the Administrative Agent, dated as of October 2,
1996, provided that, to the extent the Borrower has fully complied with the
provisions of Section 5.16 hereof and the Required Lenders did not object in
writing prior to the date ten Business Days before the proposed date of
construction that such plans are not substantially similar to those set forth
above, then any such plans disclosed in accordance with the terms of Section
5.16 hereof shall be deemed to be acceptable to the Required Lenders;
(q) either (i) there shall occur any sale of a majority or greater
interest in any franchise under the NHL for an aggregate purchase price that is
less than $35,000,000 (which shall be grossed up to reflect a 100% interest in
such franchise and shall include in the amount of consideration paid any
franchise transfer or relocation fees assessed or imposed by the NHL as a
condition to such sale); or (ii) the average price of all such sales (and in any
event at least two such sales) made subsequent to the Closing Date (which shall
be grossed up to reflect a 100% interest in such franchise and shall include in
the amount of consideration paid any franchise transfer or relocation fees
assessed or imposed by the NHL as a condition to such sale), shall be less than
$55,000,000, provided that, in either case, if the sum of (A) fair market value
of the Capital Stock of On Command Corp. owned by the Borrower on such date,
plus (B) 50% of the fair market value of the NBA Franchise on the Closing Date
is in excess of $250,000,000, there shall exist no Default or Event of Default
under the terms of this subsection (q);
(r) either (i) there shall occur any sale of a majority or greater
interest in any franchise under the NBA for an aggregate purchase price that is
less than $45,000,000 (which shall be grossed up to reflect a 100% interest in
such franchise and shall include in the amount of consideration paid any
franchise transfer or relocation fees assessed or imposed by the NBA as a
condition to such sale); or (ii) the average price of all such sales (and in any
event at least two such sales) made subsequent to the Closing Date (which shall
be grossed up to reflect a 100% interest in such franchise and shall include in
the amount of consideration paid any franchise transfer or relocation fees
assessed or imposed by the NBA as a condition to such sale), shall be less than
$70,000,000, provided that, in either case, if the sum of (A) fair market value
of the Capital Stock of On Command Corp. owned by the Borrower on such date,
plus (B) 50% of the fair market value of the NHL Franchise on the Closing Date
is in excess of $250,000,000, there shall exist no Default or Event of Default
under the terms of this subsection (r);
(s) there shall occur any amendment to any NBA Document or NHL Document
which could reasonably be expected to result in a Material Adverse Effect;
(t) either of the following events shall have occurred: (i) the Borrower
shall not have received the written consent of the NBA regarding the
Transactions within the 90 day period after the Closing Date; or (ii) the
Borrower shall not have received the written consent of the NHL regarding the
Transactions within the 90 day period after the Closing Date;
(u) the Borrower and its Subsidiaries shall have failed, within the 90 day
period after the Closing Date, to either (i) pledge 100% of the Capital Stock of
Ascent Sports, Avalanche Sub, Nuggets Sub and Ascent Network Services, Inc. to
the Administrative Agent to secure the Obligations by amending the schedules to
the existing pledge agreement, or (ii) deliver such pledge agreement(s) together
with all stock certificates evidencing such pledged stock and stock powers
executed in blank to the Administrative Agent; or
(v) at any time that the debt limitation on the Borrower in the Corporate
Agreement with COMSAT operates to limit the ability of the Borrower to make a
borrowing hereunder at a time when the Borrower needs such ability to meet
operating expenses or capital requirements in each case approved by the
Borrower's Board of Directors (as such approval may be amended), provided that,
no amendment to any such approval may be made once operating expenses or capital
requirements have been incurred or made, or to avoid a Default or an Event of
Default under this subsection (v);
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments, (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein to the contrary notwithstanding or (iii)
require cash collateral as contemplated by Section 2.20(j) hereof; and in any
event with respect to the Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest hereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent
In order to expedite the transactions contemplated by this Agreement and
the other Loan Papers, NationsBank is hereby appointed to act as Administrative
Agent on behalf of the Lenders and the Issuing Bank. Each of the Lenders and
each assignee of any such Lender, hereby irrevocably authorizes the
Administrative Agent to take such actions on behalf of such Lender or assignee
or the Issuing Bank and to exercise such powers as are specifically delegated to
the Administrative Agent by the terms and provisions hereof, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Issuing Bank,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Issuing Bank all payments of principal of and interest on the
Loans, all payments in respect of L/C Disbursements and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender or the Issuing
Bank its proper share of each payment so received; (b) to give notice on behalf
of each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower pursuant to this Agreement and the other Loan Papers as received by the
Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants or agreements contained
herein. The Administrative Agent shall not be responsible to the Lenders for the
due execution, genuineness, validity, enforceability or effectiveness of this
Agreement, the other Loan Papers or any other instruments or agreements. The
Administrative Agent shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. The Administrative Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document believed by it in
good faith to be genuine and correct and to have been signed or sent by the
proper Person or Persons. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall have any responsibility to the
Borrower on account of the failure of or delay in performance or breach by any
Lender or the Issuing Bank of any of its obligations hereunder or to any Lender
or the Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or the issuing Bank or the Borrower of any of their
respective obligations hereunder or in connection herewith. The Administrative
Agent may execute any and all duties hereunder by or through agents or employees
and shall be entitled to rely upon the advice of legal counsel selected by it
with respect to all matters arising hereunder and shall not be liable for any
action taken or suffered in good faith by it in accordance with the advice of
such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Paper unless it
shall be requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank having a
combined capital and surplus of at least $500,000,000 or an Affiliate of any
such bank. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor bank, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.05 hereof
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative Agent
in its individual capacity and not as Administrative Agent shall have the same
rights and powers as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any Subsidiary of the Borrower or On
Command Corp. or any of its Subsidiaries, or other Affiliate thereof as if it
were not the Administrative Agent.
Each Lender agrees (a) to reimburse the Administrative Agent, on demand,
in the amount of its pro rata share (based on its Commitment hereunder) of any
expenses incurred for the benefit of the Lenders by the Administrative Agent,
including reasonable counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Lenders, that shall not have been
reimbursed by the Borrower and (b) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be Imposed on, incurred by or asserted against it in its capacity as the
Administrative Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Paper or any action taken or omitted by it or
any of them under this Agreement or any other Loan Paper, to the extent the same
shall not have been reimbursed by the Borrower; provided that no Lender shall be
liable to the Administrative Agent or any such other indemnified Person for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of the Administrative Agent or any of
its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent, or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Papers. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
and the other Loan Papers, or any related agreement or any document furnished
hereunder or thereunder.
ARTICLE IX
Miscellaneous
Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at:
Ascent Entertainment Group, Inc.
One Tabor Center, Suite 2800
1200 17th Street
Denver, Colorado 80202
Attention: W. D. Minami
Vice President, Chief Financial Officer
and Treasurer
Telephone: (303) 626-7030
Telecopy No.: (303) 595-0823
With a copy to:
Ascent Entertainment Group, Inc.
One Tabor Center, Suite 2800
1200 17th Street
Denver, Colorado 80202
Attention: Arthur Aaron, Esq.
Vice President-Business & Legal
Affairs/Corporate Secretary
Telephone: (303) 626-7040
Telecopy No.: (303) 595-0127
(b) if to the Administrative Agent, to it at:
NationsBank of Texas, National Association
NationsBank Plaza
901 Main Street, 64th Floor
Dallas, Texas 75202
Telephone No.: (214) 508-0860
Telecopier No.: (214) 508-9390
Attention: Mr. Gregory I. Meador
Vice President
With a copy to:
Donohoe, Jameson & Carroll, P.C.
3400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Telephone No.: (214) 698-3814
Telecopier No.: (214) 744-0231
Attention: Melissa Ruman Stewart
(c) if to a Lender, to it at its address (or telecopy number) set forth on
the signature pages hereto or in the Assignment and Acceptance pursuant to which
such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement and the other Loan Papers shall be deemed
to have been given on the date of receipt if delivered by hand or overnight
courier service or sent by telecopy or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent
or mailed (properly addressed) to such party as provided in this Section 9.01 or
in accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.01.
Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement and the other Loan Papers shall be considered to have been relied upon
by the Lenders and the Issuing Bank and shall survive the making by the Lenders
of the Loans and the issuance of Letters of Credit by the Issuing Bank,
regardless of any investigation made by the Lenders or the Issuing Bank or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Paper is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
been terminated. The provisions of Sections 2.12. 2.14, 2.18 and 9.05 hereof
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Paper, or any
investigation made by or on behalf of the Administrative Agent, any Lender or
the Issuing Bank.
Binding Effect. This Agreement shall become effective when it shall have
been executed by the Borrower and the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
Successors and Assigns.ssors and Assigns
(a) Whenever in this Agreement or any other Loan Paper any of the parties
hereto is referred to, such reference shall be deemed to include the permitted
successors and assigns of such party, and all covenants, promises and agreements
by or on behalf of the Borrower, the Administrative Agent, the Issuing Bank or
the Lenders that are contained in this Agreement and the other Loan Papers shall
bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement and the other Loan
Papers (including all or a portion of its Commitment and the Loans at the time
owing to it); provided, however, that (i) except in the case of an assignment to
a Lender or an Affiliate of such Lender, (x) the Borrower and the Administrative
Agent (and, in the case of any assignment of a Commitment, the Issuing Bank)
must give their prior written consent to such assignment (which consent shall
not be unreasonably withheld) and (y) the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (or, if less, the entire
remaining amount of such Lender's Commitment) and will not result in the
unassigned portion, if any, of the assigning Lender's Commitment being less than
$5,000,000 (provided, however, that the $5,000,000 amounts referred to in this
clause (i) shall be reduced ratably in accordance with any reductions in the
Total Commitment) (ii) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 and (iii) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this
Section 9.04, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof, (A) the assignee thereunder shall be a party hereto and, to
the extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and the other Loan
Papers and (B) the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement and the other Loan Papers (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement and the other
Loan Papers, such Lender shall cease to be a party hereto and to the Loan
Papers, but shall continue to be entitled to the benefits of Sections 2.12,
2.14, 2.18 and 9.05 hereof, as well as to any Fees accrued for its account and
not yet paid). The Borrower shall, at its expense, issue to the assignor and
assignee new promissory notes, as applicable, in the respective amounts of each
such Lender's Pro Rata Percentage in the Loans, each in the form of the
promissory notes delivered by the Borrower on the Closing Date.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment, and the outstanding balances of its Revolving Loans, in each
case without giving effect to assignments thereof which have nor become
effective, are as set forth in such Assignment and Acceptance; (ii) except as
set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any other Loan Paper, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other Loan Paper, or
any other instrument or document furnished pursuant hereto, or the financial
condition of the Borrower or any Subsidiary of the Borrower or On Command Corp.
or any Subsidiary of On Command Corp., or the performance or observance by the
Borrower, any Subsidiary of the Borrower or On Command Corp. or any Subsidiary
of On Command Corp. of any of its obligations under this Agreement or any other
Loan Paper, or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05 or delivered pursuant to
Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Papers; (vi) such assignee
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Papers as are delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement and the other Loan
Papers are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at its offices in Dallas, Texas a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive and
the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement and the other
Loan Papers, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Issuing
Bank and the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders and the Issuing Bank. No assignment shall be effective unless it has
been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Issuing Bank
or the Administrative Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
and the other Loan Papers (including all or a portion of its Commitment and the
Loans owing to it); provided, however, that (i) such Lender's obligations under
this Agreement and the other Loan Papers shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other entities
shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.12, 2.14 and 2.18 hereof to the same extent as if they were Lenders
and (iv) the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Papers, and such Lender shall retain the sole right to enforce
the obligations of the Borrower relating to the Loans or L/C Disbursements and
to approve any amendment, modification or waiver of any provision of this
Agreement and the other Loan Papers (other than amendments, modifications or
waivers decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans or
increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04. disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16 hereof.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement and the other Loan Papers to a Federal Reserve Bank to
secure extensions of credit by such Federal Reserve Bank to such Lender;
provided that no such assignment shall release a Lender from any of its
obligations hereunder or substitute any such Bank for such Lender as a party
hereto. In order to facilitate such an assignment to a Federal Reserve Bank, the
Borrower shall, at the request of the assigning Lender, duly execute and deliver
to the assigning Lender a promissory note or notes evidencing the Loans made to
the Borrower by the assigning Lender hereunder.
(i) The Borrower shall not assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent, the
Issuing Bank and each Lender, and any attempted assignment without such consent
shall be null and void.
(j) In the event that Standard & Poor's Ratings Group, a Division of
McGraw-Hill, Inc., Moody's Investors Service, Inc., and Thompson's BankWatch (or
Insurance Watch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not rated
by Insurance Watch Ratings Service)) shall, after the date that any Lender
becomes a Lender, downgrade the longterm certificate deposit ratings of such
Lender, and the resulting ratings shall be below BBB-, Baa3 and C (or BB, in the
case of a Lender that is an insurance company (or B, in the case of an insurance
company not rated by Insurance Watch Ratings Service)), then the Issuing Bank
shall have the right, but not the obligation, at its own expense, upon notice to
such Lender and the Administrative Agent, to replace (or to request the Borrower
to use its reasonable efforts to replace) such Lender with an assignee (in
accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in paragraph (b)
above) all its interests, rights and obligations in respect of its Commitment to
such assignee; provided, however, that (i) no such assignment shall conflict
with any Law, rule and regulation or order of any Governmental Authority and
(ii) the Issuing Bank or such assignee, as the case may be, shall pay to such
Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
Expenses; Indemnity.penses; Indemnity
(a) The Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent and the Issuing Bank in connection with the
syndication of the credit facilities provided for herein and the preparation and
administration of this Agreement and the other Loan Papers or in connection with
any amendments, modifications or waivers of the provisions hereof (whether or
not the transactions hereby or thereby contemplated shall be consummated) or
incurred by the Administrative Agent or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement and
the Loan Papers, or in connection with the Loans made or Letters of Credit
issued hereunder, including the reasonable fees, charges and disbursements of
Donohoe, Jameson & Carroll, P.C., counsel for the Administrative Agent, and, in
connection with any such enforcement or protection, the reasonable fees, charges
and disbursements of any other counsel for the Administrative Agent or any
Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, each Lender
and the Issuing Bank, each Affiliate of any of the foregoing Persons and each of
their respective directors, officers, employees and agents (each such Person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement and the other Loan
Papers or any agreement or instrument contemplated thereby, the performance by
the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or issuance of Lenders of
Credit, (iii) the Corporate Restructuring or any transactions connected
therewith or (iv) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether or not any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of, or
breach of contract by, such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
other Loan Papers, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement, any other Loan Paper, or any investigation made by
or on behalf of the Administrative Agent, any Lender or the Issuing Bank. All
amounts due under this Section 9.05 shall be payable on written demand therefor.
Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time,
to the fullest extent permitted by Law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement and the other Loan
Papers held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section 9.06 are in addition to
other rights and remedies (including other rights of setoff) which such Lender
may have.
Applicable Law. THIS AGREEMENT AND THE OTHER LOAN PAPERS SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(EXCEPT, IN THE CASE OF CERTAIN OF THE OTHER LOAN PAPERS, TO THE EXTENT THE LAWS
OF ANOTHER JURISDICTION GOVERN THE PERFECTION AND EFFECT OF PERFECTION OR
NON-PERFECTION OF, CERTAIN LIENS). EACH LETTER OF CREDIT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OR RULES DESIGNATED IN SUCH
LETTER OF CREDIT OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS
AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF TEXAS.
Waivers; Amendment.aivers; Amendment
(a) No failure or delay of the Administrative Agent, any Lender or the
Issuing Bank in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent, the
Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or any other Loan Paper, or consent to any departure
by the Borrower therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Borrower in any case shall entitle the Borrower to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof or in any other Loan
Paper may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders;
provided, however, that no such agreement shall (i) decrease the principal
amount of, or extend the maturity of or any scheduled principal payment date or
date for the payment of any interest on any Loan or any date for reimbursement
of an L/C Disbursement, or waive or excuse any such payment or any part thereof,
or decrease the rate of interest on any Loan or L/C Disbursement, without the
prior written consent of each Lender affected thereby (ii) change or extend the
Commitment or decrease the Commitment Fees or the Facility Fees of any Lender
without the prior written consent of such Lender, or (iii) amend or modify the
provisions of Sections 2.15 or 9.04(i) hereof, the provisions of this Section or
the definition of the term "Required Lenders", without the prior written consent
of each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the Issuing
Bank hereunder without the prior written consent of the Administrative Agent or
the Issuing Bank, and provided further that to the extent any Wholly Owned
Subsidiary is merged into the Borrower, the Administrative Agent is authorized
by each Lender to release (i) all Capital Stock of such merged Wholly Owned
Subsidiary pledged to secure the Obligations and (ii) any guarantee of the
Obligations hereunder executed by any such merged Wholly Owned Subsidiary.
Interest Rate Limitation. It is not the intention of any party to any Loan
Papers to make an agreement violative of the Laws of any applicable jurisdiction
relating to usury. In no event shall the Borrower or any other Person be
obligated to pay any amount in excess of the Maximum Amount. If the
Administrative Agent or any Lender ever receives, collects or applies, as
interest, any such excess, such amount which would be excessive interest shall
be deemed a partial repayment of principal and treated hereunder as such; and if
principal is paid in full, any remaining excess shall be paid to the Borrower or
the other Person entitled thereto. In determining whether or not the interest
paid or payable, under any specific contingency, exceeds the Maximum Amount,
each Obligor, the Administrative Agent and each Lender shall, to the maximum
extent permitted under Applicable Law, (a) characterize any nonprincipal payment
as an expense, fee or premium rather than as interest, (b) exclude voluntary
prepayments and the effect thereof, and (c) amortize, prorate, allocate and
spread in equal parts, the total amount of interest throughout the entire
contemplated term of the Obligation so that the interest rate is uniform
throughout the entire term of the Obligation; provided that if the Obligation is
paid and performed in full prior to the end of the full contemplated term
thereof, and if the interest received for the actual period of existence thereof
exceeds the Maximum Amount, the Administrative Agent or Lenders, as appropriate,
shall refund to the Borrower the amount of such excess or credit the amount of
such excess against the total principal amount owing, and, in such event,
neither the Administrative Agent nor any Lender shall be subject to any
penalties provided by any Laws for contracting for, charging or receiving
interest in excess of the Maximum Amount. This Section 9.09 shall control every
other provision of all agreements among the parties to the Loan Papers
pertaining to the transactions contemplated by or contained in the Loan Papers.
NBA Consent Letter and NHL Consent Letter. Each of the Loan Papers will be
subject to the provisions of the NBA Consent Letter and the NHL Consent Letter
from and after the date on which each is obtained. Without limiting the
generality of the preceding sentence, neither the Administrative Agent nor any
Lender (whether acting through the Administrative Agent or otherwise) shall
exercise, enforce or attempt to exercise or enforce any of its rights or
remedies under any of the Loan Papers except in accordance with and subject to
the NBA Consent Letter and the NHL Consent Letter. Each Lender hereby
irrevocably authorizes, and each holder of any promissory note by the acceptance
of such note shall be deemed irrevocably to authorize, the Administrative Agent
to execute, deliver and perform on its behalf the NBA Consent Letter, the NHL
Consent Letter and all amendments, modifications, extensions, waivers and other
acts in connection with the NBA Consent Letter and the NHL Consent Letter as the
Administrative Agent shall deem appropriate, and all third parties shall be
entitled to rely on the Administrative Agent's taking of any such action or
execution of any such document as conclusive evidence of its authority to do so
on behalf of the Lenders.
SECTION 9.11. ENTIRE AGREEMENT. THIS AGREEMENT AND THE
OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN PAPER. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN PAPERS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 9.12.
Severability. In the event any one or more of the provisions contained in
this Agreement or in any other Loan Paper should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
Counterparts. This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 9.03 hereof.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
Jurisdiction; Consent to Service of Process.ervice of Process
(a) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any Texas State
court or Federal court of the United States of America sitting in Dallas, Texas
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Paper, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such Texas State or, to the
extent permitted by Law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by Law. Nothing in this Agreement or in any other
Loan Paper shall affect any right that the Administrative Agent, the Issuing
Bank or any Lender may otherwise have to bring any action or proceeding relating
to this Agreement or any other Loan Paper against the Borrower or its properties
in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Paper in any
Dallas, Texas State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by Law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement and any other Loan Paper irrevocably
consents to service of process in the manner provided for notices in Section
9.01 hereof. Nothing in this Agreement or any other Loan Paper will affect the
right of any party to this Agreement or any other Loan Paper to serve process in
any other manner permitted by Law.
Confidentiality. The Administrative Agent, the Issuing Bank and each of
the Lenders agrees to keep confidential (and to use its best efforts to cause
its respective agents and representatives to keep confidential) the Information
(as defined below) and all copies thereof, extracts therefrom and analyses or
other materials based thereon, except that the Administrative Agent, the Issuing
Bank or any Lender shall be permitted to disclose Information (a) to such of its
respective officers, directors, employees, agents, affiliates and
representatives as need to know such Information, (b) to the extent requested by
any regulatory authority, (c) to the extent otherwise required by Applicable
Laws and regulations or by any subpoena or similar legal process, (d) in
connection with any suit, action or proceeding relating to the enforcement of
its rights hereunder or (e) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 9.17 or (ii)
becomes available to the Administrative Agent the Issuing Bank or any Lender on
a nonconfidential basis from a source other than the Borrower. For the purposes
of this Section, "Information" shall mean all financial statements,
certificates, reports, agreements and information (including all analyses,
compilations and studies prepared by the Administrative Agent, the Issuing Bank
or any Lender based on any of the foregoing) that are received from the Borrower
and related to the Borrower, any shareholder of the Borrower or any employee,
customer or supplier of the Borrower, other than any of the foregoing that were
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrower, and which
are in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential. The provisions of this
Section 9.17 shall remain operative and in full force and effect regardless of
the expiration and term of this Agreement.
SECTION 9.18. Proposed Merger of Ascent Network Services, Inc. Proposed
Merger of Ascent Network Services, Inc.. The parties hereto acknowledge that the
Borrower currently anticipates that it may desire to merge or consolidate Ascent
Network Services, Inc. into the Borrower (the "Proposed Merger"), or to dividend
or distribute all or substantially all of the assets of Ascent Network Services,
Inc. to the Borrower (the "Proposed Distribution") on some future date
(maintaining the Borrower as the surviving corporation). Notwithstanding any
term or provision in this Agreement or in any Loan Paper to the contrary, each
Lender agrees that, so long as there exists no Event of Default both before and
immediately after giving effect to such Proposed Merger or Proposed
Distribution, as the case may be, the Borrower shall be permitted to consummate
such Proposed Merger or Proposed Distribution. Each Lender further agrees that
the Administrative Agent is hereby authorized, upon the consummation of any such
Proposed Merger, to release and/or cancel the Guarantee of Ascent Network
Services, Inc. of the Obligations hereunder, and to release the Capital Stock of
Ascent Network Services, Inc. that was pledged by the Borrower to secure the
Obligations hereunder. As a further condition to each Lender's consent to any
Proposed Merger or Proposed Distribution, at such time as the Proposed Merger or
Proposed Distribution becomes effective, Borrower agrees to provide the
Administrative Agent with a collateral assignment of the NBC Contract, or a Lien
on the NBC Contract (or on the proceeds thereof and rights of Ascent Network
Services, Inc. therein), in form and substance satisfactory to the
Administrative Agent, to the extent permitted by Applicable Law and the terms
and provisions of the NBC Contract.
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THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
THE BORROWER: ASCENT ENTERTAINMENT GROUP, INC.,
By: W. D. Minami
Its: Vice President, Chief
Financial Officer and
Treasurer
THE ADMINISTRATIVE AGENT:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, as Administrative
Agent
By: Gregory I. Meador
Its: Vice President
THE LENDERS:
PRO RATA PERCENTAGE NATIONSBANK OF TEXAS, NATIONAL
ON THE CLOSING DATE: ASSOCIATION, individually as a Lender
100%
Address:
901 Main Street
64th Floor
Dallas, Texas 75202
By: Gregory I. Meador
Attn: Gregory I. Meador Its: Vice President
Telephone: (214) 508-0860
Telecopy: (214) 508-9390
Exhibit 10.8 to
Form 10-Q
$125,000,000
CREDIT AGREEMENT
Dated as of October 8, 1996
among
ON COMMAND CORPORATION
as the Borrower
and
THE LENDERS NAMED HEREIN
and
NATIONSBANK OF TEXAS, N.A.
as the Administrative Agent
<PAGE>
Exhibits and Schedules
Exhibits
Exhibit A - Form of Administrative Questionnaire
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Borrowing Request
Exhibit D-1 - Form of Competitive Bid Request
Exhibit D-2 - Form of Notice of Competitive Bid Request
Exhibit D-3 - Form of Competitive Bid
Exhibit D-4 - Form of Competitive Accept/Reject Letter
Exhibit E - Form of Application for a Letter of Credit
Exhibit F - Form of Compliance Certificate
Schedules
Schedule 2.01(a) - Short Term Commitments
Schedule 2.01(b) - Long Term Commitments
Schedule 3.08 - Subsidiaries
Schedule 3.09 - Litigation
Schedule 3.10 - Restrictive Material Agreements
Schedule 3.14 - Taxes Owed by Spectradyne and SpectraVision
Schedule 3.16 - ERISA Disclosure
Schedule 3.18 - Insurance
Schedule 3.20 - Environmental Matters
Schedule 4.02(h) - Certain Spectradyne FCC Licenses not
Transferred
Schedule 6.01 - Subsidiary Indebtedness
Schedule 6.02 - Liens
Schedule 6.04 - Investments
Schedule 7.0 - Modification of the Reorganization Plan
<PAGE>
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TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................... 1
SECTION 1.02. Terms Generally.................................... 20
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................ 20
SECTION 2.02. Loans.............................................. 21
SECTION 2.03. Competitive Bid Procedure.......................... 23
SECTION 2.04. Borrowing Procedure................................ 25
SECTION 2.05. Evidence of Debt; Repayment of Loans............... 26
SECTION 2.06. Fees............................................... 27
SECTION 2.07. Interest on Loans.................................. 28
SECTION 2.08. Default Interest................................... 29
SECTION 2.09. Alternate Rate of Interest......................... 29
SECTION 2.10. Termination and Reduction of
Commitments; Extension of the Short Term
Revolving Loan Maturity Date....................... 30
SECTION 2.11. Conversion and Continuation of Borrowings.......... 31
SECTION 2.12. Prepayment......................................... 33
SECTION 2.13. Reserve Requirements; Change in
Circumstances.................................................. 35
SECTION 2.14. Change in Legality................................. 36
SECTION 2.15. Indemnity.......................................... 37
SECTION 2.16. Pro Rata Treatment................................. 38
SECTION 2.17. Sharing of Setoffs................................. 38
SECTION 2.18. Payments........................................... 39
SECTION 2.19. Taxes.............................................. 39
SECTION 2.20. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate.................... 43
SECTION 2.21. Letters of Credit.................................. 44
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers............................... 48
SECTION 3.02. Authorization...................................... 48
SECTION 3.03. Enforceability..................................... 49
SECTION 3.04. Governmental Approvals............................. 49
<PAGE>
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3
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SECTION 3.05. Financial Statements............................... 49
SECTION 3.06. No Material Adverse Change......................... 49
SECTION 3.07. Title to Properties; Possession Under
Leases 49
SECTION 3.08. Subsidiaries....................................... 50
SECTION 3.09. Litigation; Compliance with Laws................... 50
SECTION 3.10. Agreements......................................... 50
SECTION 3.11. Federal Reserve Regulations........................ 51
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act................................ 51
SECTION 3.13. Use of Proceeds.................................... 51
SECTION 3.14. Tax Returns........................................ 51
SECTION 3.15. No Material Misstatements.......................... 51
SECTION 3.16. Employee Benefit Plans............................. 52
SECTION 3.17. Solvency........................................... 52
SECTION 3.18. Insurance.......................................... 52
SECTION 3.19. Labor Matters...................................... 53
SECTION 3.20. Environmental Matters.............................. 53
SECTION 3.21. Acquisition of Spectradyne......................... 54
SECTION 3.22. Survival of Representations and
Warranties, etc................................................ 54
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events.................................. 55
SECTION 4.02. First Credit Event................................. 55
SECTION 4.03. Increase of Long Term ............................. 58
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties............... 59
SECTION 5.02. Insurance.......................................... 59
SECTION 5.03. Obligations and Taxes.............................. 59
SECTION 5.04. Financial Statements, Reports, etc................. 60
SECTION 5.05. Litigation and Other Notices....................... 61
SECTION 5.06. Employee Benefits.................................. 61
SECTION 5.07. Maintaining Records; Access to
Properties and Inspections......................... 61
SECTION 5.08. Use of Proceeds.................................... 62
SECTION 5.09. Compliance with Environmental Laws................. 62
SECTION 5.10. Compliance with Material Contracts................. 62
<PAGE>
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness of the Subsidiaries of the
Borrower 63
SECTION 6.02. Liens.............................................. 63
SECTION 6.03. Sale and Lease Back Transactions;
Off-Balance Sheet Financings....................... 64
SECTION 6.04. Investments, Acquisitions, Loans and
Advances 65
SECTION 6.05. Mergers, Consolidations and Sales of
Assets 65
SECTION 6.06. Dividends and Distributions;
Restrictions on Ability of Subsidiaries
to Pay Dividends................................... 66
SECTION 6.07. Transactions with Affiliates....................... 67
SECTION 6.08. Limitation on Restrictive Agreements............... 67
SECTION 6.09. Leverage Ratio..................................... 67
SECTION 6.10. Coverage Ratio..................................... 68
SECTION 6.11. Amendments to Organizational Documents. .......... 68
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................ 74
SECTION 9.02. Survival of Agreement.............................. 76
SECTION 9.03. Binding Effect..................................... 76
SECTION 9.04. Successors and Assigns............................. 76
SECTION 9.05. Expenses; Indemnity................................ 80
SECTION 9.06. Right of Setoff.................................... 81
SECTION 9.07. Applicable Law..................................... 81
SECTION 9.08. Waivers; Amendment................................. 81
SECTION 9.09. Interest Rate Limitation........................... 82
SECTION 9.10. ENTIRE AGREEMENT................................... 82
SECTION 9.11. WAIVER OF JURY TRIAL............................... 83
SECTION 9.12. Severability....................................... 83
SECTION 9.13. Counterparts....................................... 83
SECTION 9.14. Headings........................................... 83
SECTION 9.15. Jurisdiction; Consent to Service of
Process 83
SECTION 9.16. Confidentiality.................................... 84
<PAGE>
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ON COMMAND CORPORATION
$125,000,000
CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement"), dated as of October 8, 1996,
among ON COMMAND CORPORATION, a Delaware corporation (the "Borrower"), the
Lenders (as defined in Article I hereof), and NATIONSBANK OF TEXAS, N.A., a
national banking association, as issuing bank (in such capacity, the "Issuing
Bank"), and as administrative agent (in such capacity, the "Administrative
Agent") for the Lenders.
The Borrower has requested the Lenders to extend credit in the form of
revolving loans, competitive bid rate loans, and letters of credit (such letters
of credit in an aggregate face amount not to exceed $10,000,000), in a maximum
aggregate principal amount for all such facilities at any time outstanding not
in excess of $125,000,000. The proceeds of the Loans are to be used to refinance
existing indebtedness and for general corporate purposes of the Borrower and its
Subsidiaries, including, without limitation, working capital and strategic
acquisitions permitted under the terms hereof.
The Lenders are willing to extend a $125,000,000 aggregate credit facility
to the Borrower in the form of either revolving loans, competitive bid rate
loans or letters of credit, as elected by the Borrower, in each case on the
terms and subject to the conditions set forth herein. Accordingly, the parties
hereto agree as follows:
ARTICLE I
Definitions
Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at the Alternate Base Rate
in accordance with the provisions of Article II hereof.
"Acquisition" shall mean the acquisition made by the Borrower in
accordance with the terms of the Acquisition Agreement.
<PAGE>
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"Acquisition Agreement" shall mean that certain Acquisition Agreement by
and among the Borrower, Ascent, the Official Creditors' Committee for
SpectraVision, Inc. and Certain of its Subsidiaries, SpectraVision, Spectradyne
and other Debtors named therein, dated as of August 13, 1996, as amended through
the Closing Date.
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"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, a simple per annum interest rate equal to the lesser of
(a) the Highest Lawful Rate and (b) the sum of (i) the quotient of (x) the LIBO
Rate divided by (y) one minus the LIBOR Reserve Percentage, stated as a decimal,
plus (ii) the Applicable Percentage. The Adjusted LIBO Rate shall apply to
Interest Periods of one, two, three or six months, or, if determined available
by the Administrative Agent, twelve months. The Adjusted LIBO Rate shall be
subject to availability with respect to the Lenders and to Section 2.14 hereof.
Once determined, the Adjusted LIBO Rate shall remain unchanged during the
applicable Interest Period, except for changes to reflect adjustments in the
LIBOR Reserve Percentage.
"Administrative Agent Fees" shall have the meaning assigned to such term
in Section 2.06(b) hereof.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A hereto.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the lesser of (a) the
Highest Lawful Rate and (b) sum of (i) the Applicable Percentage, plus (ii) the
greater of (A) the Prime Rate in effect on such day, and (B) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition thereof, the Alternate Base Rate shall be determined
without regard to clause (B) of the preceding sentence, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively. The term "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its office in Dallas, Texas;
each change in the Prime Rate shall be effective on the date such change is
publicly announced as being effective. The term "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of Dallas, Texas or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for the day for
such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Applicable Law" shall mean (a) in respect of any Person, all provisions
of Laws of tribunals applicable to such Person, and all orders and decrees of
all courts and arbitrators in proceedings or actions to which the Person in
question is a party and (b) in respect of contracts made or performed in the
State of Texas, "Applicable Law" also means the laws of the United States of
America, including, without limiting the foregoing, 12 USC Sections 85 and 86,
as amended to the date hereof and as the same may be amended at any time and
from time to time hereafter, and any other statute of the United States of
America now or at any time hereafter prescribing the maximum rates of interest
on loans and extensions of credit, and the laws of the State of Texas,
including, without limitations, Articles 5069-1.04 and 5069-1.07(a), Title 79,
Revised Civil Statutes of Texas, 1925, as amended ("Art. 1.04"), and any other
statute of the State of Texas now or at any time hereafter prescribing maximum
rates of interest on loans and extensions of credit; provided however, that
pursuant to Article 5069-15.10(b), Title 79, Revised Civil Statutes of Texas,
1925, as amended, the Borrower agrees that the provisions of Chapter 15, Title
79, Revised Civil Statutes of Texas, 1925, as amended, shall not apply to the
Loans hereunder.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan or ABR Loan (other than any Eurodollar Competitive Loan), the
applicable percentage set forth below under the caption "Eurodollar Margin" or
"ABR Margin", as the case may be, based upon the Leverage Ratio, then in effect
for purposes hereof:
Eurodollar ABR
Leverage Ratio Margin Margin
Category 1 0.625% 0%
Greater than or equal
to 2.00 to 1.00
Category 2 0.500% 0%
Greater than or equal to
1.00 to 1.00 but less than
2.00 to 1.00
Category 3 0.375% 0%
Less than 1.00 to 1.00
Except as set forth below, the Leverage Ratio utilized for purposes of
determining the Eurodollar Margin and ABR Margin shall be that in effect as of
the last day of the most recent fiscal quarter of the Borrower in respect of
which financial statements have been delivered pursuant to this Agreement. From
the date hereof until the earliest to occur of the initial delivery of financial
statements pursuant to Section 5.04(a) or (b) hereof, the Borrower's failure to
timely deliver such financial statements or the occurrence of an Event of
Default, the Leverage Ratio shall be deemed to be within Category 1 above. The
Applicable Percentage from time to time in effect shall be based on the Leverage
Ratio from time to time in effect, and each change in the Applicable Percentage
resulting from a change in (or the initial establishment of) the Leverage Ratio
shall be effective with respect to all Loans, Commitments and Letters of Credit
outstanding on and after the date of delivery to the Administrative Agent of the
financial statements and certificates required by Section 5.04(a) or (b) hereof
indicating such change to and including the date immediately preceding the next
date of delivery of such financial statements and certificates indicating
another such change. Notwithstanding the foregoing, (a) at any time during which
the Borrower has failed to deliver the financial statements and certificates
required by Section 5.04(a) or (b) hereof, or (b) at any time after the
occurrence and during the continuance of an Event of Default, the Leverage Ratio
shall be deemed to be in Category 1 above for purposes of determining the
Applicable Percentage.
"Application" shall mean any stand-by letter of credit application
delivered to the Administrative Agent for or in connection with any Letter of
Credit pursuant to Section 2.21 hereof, in the Administrative Agent's standard
form for stand-by letters of credit, the form of which, on the Closing Date, is
attached as Exhibit E hereto.
"Art. 1.04" has the meaning specified in the definition of
"Applicable Law".
"Ascent" shall mean Ascent Entertainment Group, Inc., a Delaware
corporation and majority owner of the Borrower.
"Ascent Agreements" shall mean the Services Agreement, the Corporate
Agreement and the Tax Sharing Agreement, in each case between the Borrower and
Ascent, in the forms delivered to the Administrative Agent, as such agreements
may hereafter be amended as permitted by, and in accordance with, the provisions
of this Agreement.
"Ascent Loan Facility" shall mean that certain loan facility to Ascent
pursuant to that certain Amended and Restated Credit Agreement, dated the
Closing Date from a group of financial institutions with the Administrative
Agent as the administrative agent thereunder.
"Asset Disposition" shall have the meaning assigned to it in
Section 6.05(b) hereof.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B hereto or such other form as shall be approved
by the Administrative Agent.
"Attributable Debt" shall mean as of any date of determination, the
present value (discounted semiannually at the interest rate set forth or
implicit in the terms of such transaction, as determined by the principal
accounting or financial officer of the Borrower) of the obligation of a lessee
for rental payments pursuant to any Equipment Lease Transaction during the
remaining term of such Equipment Lease Transaction (including any period for
which the lease relating thereto has been extended), such rental payments not to
include amounts payable by the lessee for maintenance and repairs, insurance,
taxes, assessments and similar charges.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrowing" shall mean Loans of a single Type made by the Lenders in
accordance with the terms hereof (or, in the case of a Competitive Borrowing, by
the Lender or Lenders whose Competitive Bids have been accepted pursuant to
Section 2.03 hereof) on a single date and as to which a single Interest Period
is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.04 hereof and substantially in the form of Exhibit C
hereto.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in Dallas, Texas or New York, New York are authorized or required by
Law to close; provided, however, that when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" shall mean, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
of any Person that is a corporation and each class of partnership interests
(including without limitation, general, limited and preference units) in any
Person that is a partnership.
A "Change in Control" shall be deemed to have occurred if (a) Ascent fails
to own directly or indirectly, beneficially or of record, shares of Capital
Stock of the Borrower representing 50.1% or more of the aggregate ordinary
voting power of the Borrower, or (b) Ascent shall fail to control a majority of
the seats on the Board of Directors of the Borrower.
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" shall mean, with respect to each Lender, such
Lender's Short Term Commitment and Long Term Commitment.
"Commitment Fee" shall have the meaning assigned to such term in Section
2.06(d) hereof.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03(b) hereof in the form of Exhibit D-3 hereto.
"Competitive Bid Accept/Reject Letter" shall mean a notification made by
the Borrower pursuant to Section 2.03(d) hereof in the form of Exhibit D-4
hereto.
"Competitive Bid Rate" shall mean, as to any Competitive Bid, (i) in the
case of a Eurodollar Loan, the Margin, and (ii) in the case of a Fixed Rate
Loan, the fixed rate of interest offered by the Lender making such Competitive
Bid.
"Competitive Bid Request" shall mean a request made by the Borrower
pursuant to Section 2.03(a) hereof in the forte of Exhibit D-1 hereto.
"Competitive Borrowing" shall mean a Borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Lender or Lenders whose
Competitive Bids for such Borrowing have been accepted by the Borrower under the
bidding procedure described in Section 2.03 hereof.
"Competitive Loan" shall mean a Loan from a Lender to the
Borrower pursuant to the bidding procedure described in Section 2.03
hereof. Each Competitive Loan shall be a Eurodollar Competitive Loan
or a Fixed Rate Loan.
"Compliance Certificate" shall mean a compliance certificate,
substantially in the form of Exhibit F hereto, and certifying that there exists
no Default or Event of Default at the time of delivery thereof.
"Consolidated Assets" shall mean, with respect to the Borrower and its
Subsidiaries, at any date, the consolidated total assets of the Borrower and its
Subsidiaries at such date, as determined in accordance with GAAP.
"Consolidated Cash Interest Expense" shall mean, for any period of
determination, the gross interest expense of the Borrower and its Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP,
excluding any amounts not paid or not required (whether during or after such
period) to be paid in cash. For purposes of the foregoing, gross interest
expense shall be determined after giving effect to any net cash payments made or
received by the Borrower with respect to rate protection agreements entered into
as a hedge against interest rate exposure. Gross interest expense shall be
calculated in accordance with GAAP as in effect and applied by the Borrower on
the date of this Agreement and, accordingly, shall exclude the effects of any
changes in GAAP or its application by the Borrower after the date hereof.
"Consolidated Liabilities" shall mean, with respect to the Borrower and
its Subsidiaries, at any date, the consolidated total liabilities of the
Borrower and its Subsidiaries at such date, as determined in accordance with
GAAP.
"Consolidated Tangible Net Worth" shall mean, at any date, with respect to
the Borrower and its Subsidiaries on a consolidated basis, the excess of the
Consolidated Assets over Consolidated Liabilities excluding, however, from the
determination of Consolidated Assets (a) except as otherwise provided in the
provision hereto, all assets which would be classified as intangibles under
GAAP, including goodwill (whether representing the excess of cost over book
value of assets acquired or otherwise), organizational expenses, trademarks,
trade names, copyrights, patents, patent applications, licenses and rights in
any thereof and (b) treasury stock held as an asset.
"Consolidated Total Indebtedness" shall mean, for any Person, all
Indebtedness of such Person and its consolidated subsidiaries (other than
Indebtedness referred to in clause (h) of the definition of such term),
determined on a consolidated basis in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise,
and "Controlling and "Controlled" shall have meanings correlative thereto.
"Corporate Restructuring" shall mean that series of transactions
consisting of the Merger, the Acquisition and the Reorganization Plan, and the
related issuance of the Borrower's Capital Stock and Warrants for the Capital
Stock of the Borrower, as each is described in the S-4 Registration Statement.
"Coverage Ratio" shall mean, on any date for the Borrower and its
Subsidiaries on a consolidated basis, the ratio of (a) EBITDA for the four most
recently completed consecutive fiscal quarters, to (b) Consolidated Cash
Interest Expense of the Borrower and its Subsidiaries for the four most recently
completed consecutive fiscal quarters.
"Credit Event" shall have the meaning assigned to such term in Section
4.01 hereto.
"Debtor Relief Laws" shall mean applicable bankruptcy, reorganization,
moratorium, or similar Laws, or principles of equity affecting the enforcement
of creditors' rights generally.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, with respect to any Person and its subsidiaries on a
consolidated basis for any period, the consolidated net income of such Person
and its subsidiaries for such period, computed in accordance with GAAP, plus, to
the extent deducted in computing such consolidated net income and without
duplication, the sum of (a) income tax expense, (b) interest expense, (c)
depreciation and amortization expense, (d) allocation of income to minority
interests in earnings of consolidated subsidiaries and (e) extraordinary losses
(including restructuring provisions) during such period minus, to the extent
added in computing such consolidated net income and without duplication, (y)
extraordinary gains during such period and (z) allocation of losses to minority
interests in earnings of consolidated subsidiaries. EBITDA shall be calculated
in accordance with GAAP as in effect and applied by the Borrower on the date of
this Agreement and, accordingly, shall exclude the effects of any changes in
GAAP or its application by the Borrower after the date hereof.
"EDS Agreement" shall mean the Agreement among SpectraVision, Electronic
Data Systems Corporation and EDS Technical Products Corporation, dated as of
August 5, 1996.
"Environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Equipment Lease Transaction" shall mean any transaction or arrangement
(other than (a) a Capital Lease Obligation reflected as such on the consolidated
financial statements of the Borrower or (b) an operating lease) (i) pursuant to
which the Borrower or any of its Subsidiaries sells or transfers any equipment
or fixtures used or useful in its business, whether now owned or hereafter
acquired, to any other Person, and thereafter rents or leases such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred or (ii) pursuant to which the
Borrower or any of its Subsidiaries rents or leases from any other Person any
equipment or fixtures used or useful in its business and which, although not
required to be accounted for as a Capital Lease Obligation, in substance
represents the financing of the acquisition of such property by the Borrower or
such Subsidiary.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, consent decree, cost
recovery action or other cause of action by, or on behalf of, any Governmental
Authority or any Person for damages, injunctive or equitable relief, personal
injury (including sickness, disease or death), Remedial Action costs, tangible
or intangible property damage, natural resource damages, nuisance, pollution,
any adverse effect on the Environment caused by any Hazardous Material, or for
fines, penalties or restrictions, resulting from or based upon: (a) the
existence, or the continuation of the existence, of a Release (including sudden
or non-sudden, accidental or non-accidental Releases); (b) exposure to any
Hazardous Material; (c) the presence, use, handling, transportation, storage,
treatment or disposal of any Hazardous Material; or (d) the violation or alleged
violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and future
treaties, Laws, codes, judgments, injunctions, notices or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating in
any way to the Environment, preservation or reclamation of natural resources,
the management, Release or threatened Release of any Hazardous Material or to
health and safety matters, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. " 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. " 6901 et seq., the Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 U.S.C. " 1251 et seq., the Clean Air Act of
1970, 42 U.S.C. " 7401 et seq., as amended, the Toxic Substances Control Act of
1976, 15 U.S.C. " 2601 et seq., the Occupational Safety and Health Act of 1970,
as amended by 29 U.S.C. " 651 et seq., the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. " 11001 et seq., the Safe Drinking Water
Act of 1974, as amended by 42 U.S.C. " 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. " 5101 et seq., and any similar or implementing
state or local law, and all amendments or regulations promulgated thereunder.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan; (b)
the adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (e) the incurrence of any liability under Title IV of ERISA
upon the termination of any Plan or the withdrawal or partial withdrawal of the
Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; (f)
the receipt by the Borrower or any ERISA Affiliate from the PBGC of any notice
relating to the intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (g) the receipt by the Borrower or any ERISA Affiliate
of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; and (h) the
occurrence of a "prohibited transaction" with respect to which the Borrower or
any of its Subsidiaries is a "disqualified person" (within the meaning of
Section 4975 of the Code) or with respect to which the Borrower or any such
Subsidiary could otherwise be liable.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Competitive Borrowing" shall mean a Borrowing
comprised of Eurodollar Competitive Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or
Eurodollar Competitive Loan.
"Eurodollar Revolving Loans" shall mean Revolving Loans bearing interest
at a rate determined by reference to the Adjusted LIBO Rate in accordance with
the provisions of Article II hereof.
"Event of Default" shall have the meaning assigned to such term in Article
VII hereof.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a) hereof.
"Fee Letters" shall mean that certain Fee Letter dated October 8, 1996,
between the Borrower and the Administrative Agent, and any other fee letters
executed from time to time among the Borrower, the Administrative Agent and the
Lenders, as each may be amended, extended, increased, revised or substituted
from time to time.
"Fees" shall mean the Facility Fees, the Commitment Fees, the
Administrative Agent Fees, the L/C Participation Fees and the Issuing
Bank Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Fixed Rate Borrowing" shall mean a Borrowing, comprised of
Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"GAAP" shall mean generally accepted accounting principles.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any Person shall mean any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or (d) to guaranty the
obligations, payments by or performance of, a Person that is not a wholly owned
direct or indirect subsidiary of the Borrower; provided, however, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantors" shall mean all Wholly Owned Subsidiaries of the Borrower,
except those Subsidiaries of the Borrower which are foreign organized
Subsidiaries.
"Hazardous Materials" shall mean all explosive or radioactive substances
or wastes, hazardous or toxic substances or wastes, pollutants, solid, liquid or
gaseous wastes, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Highest Lawful Rate" shall mean at the particular time in question the
maximum rate of interest which, under Applicable Law, any Lender is then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, any Lender is permitted to charge on the Obligations shall
change after the date hereof, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, from time to time as of the
effective time of each change in the Highest Lawful Rate without notice to the
Borrower. For purposes of determining the Highest Lawful Rate under Applicable
Law, the applicable rate ceiling shall be (a) the indicated rate ceiling
described in and computed in accordance with the provisions of Section (a)(1) of
Art. l.04; or (b) provided notice is given as required in Section (h)(1) of Art.
1.04, either the annualized ceiling or quarterly ceiling computed pursuant to
Section (d) of Art. 1.04; provided, however, that at any time the indicated rate
ceiling, the annualized ceiling or the quarterly ceiling, as applicable, shall
be less than 18% per annum or more than 24% per annum, the provisions of
Sections (b)(1) and (2) of said Art. 1.04 shall control for purposes of such
determination, as applicable.
"Indebtedness" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits with
such Person or advances to such Person of any kind, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property or assets purchased by such Person, (d) all
obligations of such Person issued or assumed as the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business, and excluding any obligations
relating to operating leases), (e) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, (f)
all Guarantees by such Person, (g) all Capital Lease Obligations of such Person,
(h) all net obligations of such Person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (i) all obligations of such Person as an account
party in respect to letters of credit and bankers' acceptances. The Indebtedness
of any Person shall include the Indebtedness of any partnership in which such
Person is a general partner.
"Interest Payment Date" shall mean, with respect to any Loan, each March
31, June 30, September 30 and December 31 of each year during the term of this
Agreement.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, or if
determined available by the Administrative Agent, 12 months thereafter, as the
Borrower may elect, (b) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Short Term Revolving
Loan Maturity Date or the Long Term Revolving Loan Maturity Date, as applicable,
and (iii) the date such Borrowing is converted to a Borrowing of a different
Type in accordance with Section 2.11 hereof or repaid or prepaid in accordance
with Section 2.12 hereof and (c) as to any Fixed Rate Borrowing, the period
commencing on the date of such Borrowing and ending on the date specified in the
Competitive Bids in which the offers to make the Fixed Rate Loans comprising
such Borrowing were extended, which shall not be earlier than seven days after
the date of such Borrowing or later than 360 days after the date of such
Borrowing; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Issuing Bank" shall mean NationsBank (or any Affiliate thereof) or any
other Lender that may become an Issuing Bank pursuant to Section 2.21(i) hereof,
in each case with respect to Letters of Credit issued by it.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.06(c) hereof.
"Law" shall mean any constitution, statute, law, ordinance, regulation,
rule, order, writ, injunction, or decree of any tribunal.
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.21 hereof.
"L/C Disbursement" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
principal amount of all L/C Disbursements that have not yet been reimbursed at
such time. The L/C Exposure of any Lender at any time shall mean its Pro Rata
Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.06(c) hereof.
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 hereto (other than any such financial institution that has ceased to be a
party hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.21 hereof.
"Leverage Ratio" shall mean, on any date for the Borrower and its
Subsidiaries on a consolidated basis, the ratio of (a) the Borrower's and its
Subsidiaries' Consolidated Total Indebtedness to (b) EBITDA of the Borrower and
its consolidated Subsidiaries for the most recently completed four fiscal
quarters.
"LIBO Rate" shall mean, for any Eurodollar Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest one-one hundredth (1/100th) of one percent (1%)) appearing on Telerate
Page 3750 (or any successor page) as the London interbank offered rate for
deposits in United States dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period. If for any reason
such rate is not available, the term "LIBO Rate" shall mean, for any Eurodollar
Borrowing for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest one-one hundredth (1/100th) of one percent (1%))
appearing on Reuters Screen LIBO page as the London interbank offered rate for
deposits in United States dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates.
"LIBOR Reserve Percentage" shall mean, with respect to any Interest
Period, the percentage which is in effect on the first day of such period under
Regulation D of the Board of Governors of the Federal Reserve System, as such
regulation may be amended from time to time, as the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency or marginal
reserves) with respect to eurocurrency liabilities (as that term is defined in
Regulation D), applicable to any Lender. The Adjusted LIBO Rate for any
Eurodollar Borrowing shall be adjusted for any change in the LIBOR Reserve
Percentage.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loans" shall mean the Short Term Revolving Loans, Competitive Loans and
the Long Term Revolving Loans made in accordance with the terms of this
Agreement, and "Loan" shall mean any of the above, as applicable in the context
used.
"Loan Papers" shall mean this Agreement, the promissory notes evidencing
the Loans, all guaranties executed by the Guarantors, Fee Letters, all Letters
of Credit, all Applications and all other agreements between the Borrower or any
Subsidiary of the Borrower and the Administrative Agent related to any Letter of
Credit, Assignment and Acceptances, post-closing letters, and all other
documents, instruments, agreements, or certificates executed or delivered from
time to time by any Person in connection with this Agreement or as security for
the Obligations hereunder, as each such agreement may be amended, modified,
substituted, replaced or extended from time to time.
"Long Term Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Long Term Revolving Loans hereunder as set
forth on Schedule 2.01(b) hereto, or in the Assignment and Acceptance pursuant
to which such Lender assumed its Long Term Commitment, as applicable, as the
same may be (a) increased from time to time pursuant to the terms of Section
4.03 hereof, (b) reduced from time to time pursuant to (i) Section 2.10 hereof,
(ii) Section 2.20 hereof, (iii) the amount of Letters of Credit issued under the
Long Term Commitment in accordance with Section 2.21 hereof, and (iv) the amount
of Competitive Loans issued under the Long Term Commitment in accordance with
Sections 2.02 and 2.03 hereof and (c) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04 hereof.
"Long Term Revolving Loan Maturity Date" shall mean, the date that is five
years after the date hereof, or such earlier date as the Obligations are due and
payable in full (whether by scheduled reduction, acceleration, termination or
otherwise).
"Long Term Revolving Loans" shall mean the long term revolving Loans made
available by the Lenders to the Borrower pursuant to the Long Term Commitments
and Section 2.01(b) hereof. Each Long Term Revolving Loan shall be a Eurodollar
Revolving Loan or an ABR Revolving Loan.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, or financial condition of the Borrower and its
Subsidiaries taken as a whole, (b) material impairment of the ability of the
Borrower to perform any of its obligations under this Agreement or under any
other Loan Paper or (c) material impairment of the enforceability of this
Agreement, any other Loan Paper or the Loans.
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, Administrative Agent or any Lender is permitted to charge on the
Obligations.
"Merger Agreement" shall mean that certain Agreement and Plan of Merger,
by and among the Borrower, On Command Merger Corporation and OCV, dated as of
August 13, 1996.
"Merger" shall mean the merger of On Command Merger Corporation with and
into OCV, in accordance with the terms of the Merger Agreement.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NationsBank" shall mean NationsBank of Texas, N.A., a national
banking association.
"Net Cash Proceeds" shall mean with respect to any Asset Disposition (i)
the gross amount of any cash paid to or received by the Borrower or any of its
Subsidiaries in respect of such Asset Disposition (including (a) payments of
principal or interest, or cash proceeds from the sale or other disposition in
respect of noncash consideration permitted under Section 6.05 hereof, and (b)
insurance proceeds, condemnation awards and payments from time to time in
respect of installment obligations, if applicable), less (ii) the amount, if
any, of (x) the Borrower's good faith best estimate of all taxes attributable to
such Asset Disposition which it in good faith expects to be paid in the taxable
year in which such Asset Disposition shall occur or in the next taxable year,
(y) reasonable and customary fees, discounts, commissions, costs and other
expenses (other than those payable to the Borrower or any Affiliate of the
Borrower), which are incurred in connection with such Asset Disposition and are
payable by the Borrower or any of its Subsidiaries and (z) in the case of an
Asset Disposition that is a sale, transfer or other disposition of assets or
properties, proceeds required to discharge Liens in respect of such assets or
properties permitted by Section 6.02 hereof.
"Obligations" shall mean all present and future obligations, indebtedness
and liabilities, and all renewals and extensions of all or any part thereof, of
the Borrower and each Obligor to the Lenders and the Administrative Agent
arising from, by virtue of, or pursuant to this Agreement, any of the other Loan
Papers and any and all renewals and extensions thereof or any part thereof, or
future amendments thereto, all interest accruing on all or any part thereof and
reasonable attorneys' fees incurred by the Administrative Agent for the
preparation of this Agreement and consummation of this credit facility,
execution of waivers, amendments and consents, and in connection with the
enforcement or the collection of all or any part thereof, and reasonable
attorneys' fees incurred by the Lenders in connection with the enforcement or
the collection of all or any part of the Obligations during the continuance of
an Event of Default, in each case whether such obligations, indebtedness and
liabilities are direct, indirect, fixed, contingent, joint, several or joint and
several. Without limiting the generality of the foregoing, "Obligations"
includes all amounts which would be owed by the Borrower, each other Obligor and
any other Person (other than the Administrative Agent or the Lenders) to the
Administrative Agent or the Lenders under any Loan Paper, but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower, any other Obligor
or any other Person (including all such amounts which would become due or would
be secured but for the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding of the Borrower, any other
Obligor or any other Person under any Debtor Relief Law).
"Obligor" shall mean (a) the Borrower, (b) each Guarantor, (c) each other
Person liable for performance of any of the Obligations and (d) each other
Person the Property of which hereafter secures the performance of any of the
Obligations.
"OCV" shall mean On Command Video Corporation, a Delaware
corporation.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's Ratings Group, a Division of McGraw-Hill, Inc. or from Moody's
Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and time
deposits maturing within one year from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank which bank or office is
organized under the Laws of the United States of America or any State thereof
which has a combined capital and surplus and undivided profits of not less than
$250,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for underlying securities of the type described in clause (a) above
entered into with any institution meeting the qualifications specified in clause
(c) above.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
112 of the Code or Section 307 of ERISA and in respect of which the Borrower or
any ERISA Affiliate is (or if such plan were terminated would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Preferred Stock", as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution or assets
upon any voluntary or involuntary liquidation or dissolution of any such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Pro Forma Financials" shall mean those pro forma financial statements of
the Borrower and its Subsidiaries set forth in the S-4 Registration Statement.
"Pro Rata Percentage" of any Lender at any time shall mean the percentage
of such Lender set forth opposite its signature line on the signature pages
hereof and designated as such, as such percentage may be hereafter be adjusted
pursuant to any Assignment and Acceptance or amendment to this Agreement.
"Register" shall have the meaning given such term in Section 9.04(d)
hereof.
"Regulation G" shall mean Regulation G of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the Environment.
"Remedial Action" shall mean (a) "remedial action" as such term is defined
in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) cleanup, remove, treat,
abate or in any other way address any Hazardous Material in the Environment;
(ii) prevent the Release or threat of Release, or minimize the further Release
of any Hazardous Material so it does not migrate or endanger or threaten to
endanger public health, welfare or the Environment; or (iii) perform studies and
investigations in connection with, or as a precondition to, (i) or (ii) above.
"Reorganization Plan" shall mean the Debtors' First Amended Joint Plan of
Reorganization, dated August 2, 1996, as supplemented on August 27, 1996 and
modified on September 11, 1996.
"Required Lenders" shall mean, at any time, (i) Lenders having Commitments
representing at least 51% of the sum of all Commitments at such time, (ii) for
purposes of acceleration pursuant to clause (ii) of the last paragraph of
Article VII, Lenders having Loans, L/C Exposures and unused Commitments
representing at least 51% of the sum of all Loans outstanding, L/C Exposure and
unused Commitments or (iii) if the Commitments have terminated, Lenders having
Loans and L/C Exposure representing at least 51% of the sum of all Loans
outstanding and L/C Exposure.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement and the other Loan Papers.
"Revolving Loans" shall mean the Short Term Revolving Loans and the Long
Term Revolving Loans made available by the Lenders to the Borrower pursuant to
the Short Term Commitments, the Long Term Commitments and Section 2.01 hereof.
Each Revolving Loan shall be a Eurodollar Revolving Loan or an ABR Revolving
Loan.
"S-4 Registration Statement" shall mean that certain Form S-4 Registration
Statement, as filed by the Borrower with the Securities and Exchange Commission
on August 16, 1996, as amended on September 4, 1996, September 26, 1996 and as
further amended on October 7, 1996.
"Short Term Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Short Term Revolving Loans hereunder as set
forth on Schedule 2.01(a) hereto, or in the Assignment and Acceptance pursuant
to which such Lender assumed its Commitment, as applicable, as the same may be
(a) reduced from time to time pursuant to (i) Section 2.10 hereof, (ii) Section
2.20 hereof, (iii) the amount of Letters of Credit issued under the Short Term
Commitment in accordance with Section 2.21 hereof, (iv) Section 4.03 hereof, and
(iv) the amount of Competitive Loans issued under the Short Term Commitment in
accordance with Sections 2.02 and 2.03 hereof, and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04 hereof.
"Short Term Revolving Loan Maturity Date" shall mean, subject to Section
2.10(g) hereof, the date that is 364 days after the date hereof, or such earlier
date as the Obligations are due and payable in full (whether by scheduled
reduction, acceleration, termination or otherwise).
"Short Term Revolving Loans" shall mean the short term revolving Loans
made available by the Lenders to the Borrower pursuant to the Short Term
Commitments and Section 2.01(a) hereof. Each Revolving Loan shall be a
Eurodollar Revolving Loan or an ABR Revolving Loan.
"Spectradyne" shall mean Spectradyne, Inc., a Texas corporation and wholly
owned Subsidiary of SpectraVision.
"SpectraVision" shall mean SpectraVision, Inc., a Delaware
corporation.
"Subsidiary" shall mean, with respect to any Person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership interests are, at the time any determination is being
made, owned, controlled or held, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Total Commitment" shall mean, at any time, the aggregate amount of the
Lenders' Commitments, as in effect at such time.
"Total Exposure" shall mean, with respect to the Lenders at any time, the
aggregate principal amount at such time of the sum of (a) all outstanding
Revolving Loans, plus (b) the aggregate amount at such time of all Lenders' L/C
Exposure, plus (c) the amount by which the outstanding Competitive Borrowings
shall be deemed to have utilized all Lenders' Commitments in accordance with
Section 2.16 hereof.
"Transactions" shall have the meaning assigned to such term in Section
3.02 hereof.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of such
Person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the outstanding Capital Stock or
partnership interests, as the case may be, are, at the time any determination is
being made, owned by such Person or one or more Wholly Owned Subsidiaries of
such Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Terms Generally. The definitions in Section 1.01 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided, however, that
for purposes of determining compliance with the covenants contained in Article
VI hereof, all accounting terms herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP as in effect on
the date of this Agreement and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.05 hereof.
ARTICLE II
The Credits
Commitments.. Commitments
(a) Short Term Revolving Loans. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Short Term Revolving Loans to the
Borrower, at any time and from time to time on or after the date hereof, and
until the earlier of (a) the Short Term Revolving Loan Maturity Date, and (b)
the termination of the Short Term Commitment of such Lender in accordance with
the terms hereof, in an aggregate principal amount at any time up to such
Lender's Short Term Commitment, provided that, the Borrower agrees that,
notwithstanding anything in this Agreement or in any other Loan Paper to the
contrary, no Lender shall at any time be obligated to make any Loan if such Loan
would result in such Lender's Total Exposure exceeding such Lender's Commitment.
Within the limits set forth in the preceding sentence and subject to the terms,
conditions and limitations set forth herein, the Borrower may borrow, pay or
prepay and reborrow Short Term Revolving Loans.
(b) Long Term Revolving Loans. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Long Term Revolving Loans to the
Borrower, at any time and from time to time on or after the date hereof, and
until the earlier of (a) the Long Term Revolving Loan Maturity Date, and (b) the
termination of the Long Term Commitment of such Lender in accordance with the
terms hereof, in an aggregate principal amount at any time up to such Lender's
Long Term Commitment, provided that, the Borrower agrees that, notwithstanding
anything in this Agreement or in any other Loan Paper to the contrary, no Lender
shall at any time be obligated to make any Loan if such Loan would result in
such Lender's Total Exposure exceeding such Lender's Commitment. Within the
limits set forth in the preceding sentence and subject to the terms, conditions
and limitations set forth herein, the Borrower may borrow, pay or prepay and
reborrow Long Term Revolving Loans.
Loans.N 2.02. Loans
(a) Each Loan (other than Competitive Loans) shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Pro Rata Percentages; provided, however, that the failure of
any Lender to make any Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.03. hereof, and shall reduce the
Short Term Commitment or the Long Term Commitment as designated by the Borrower
in accordance with the terms of Section 2.03 below, provided that, if the
Borrower fails to designate, then such Competitive Loan shall reduce (i) first,
the Short Term Commitment, and if the Short Term Commitment is zero, then the
Long Term Commitment, by the amount of each such outstanding Competitive Loan.
If the Total Commitment has been reduced to zero, Competitive Loans shall not be
available hereunder. Except for Loans deemed made pursuant to Section 2.02(f)
hereof, the Loans comprising any Borrowing shall be in an aggregate principal
amount that is (i) (x) with respect to any Competitive Borrowing, an integral
multiple of $1,000,000 and not less than $3,000,000 and (y) with respect to any
other Borrowing, an integral multiple of $1,000,000 and not less than $3,000,000
or (ii) equal to the remaining available balance of the Total Commitments.
(b) Subject to Sections 2.09 and 2.14 hereof, each Competitive Borrowing
shall be comprised entirely of Eurodollar Competitive Loans or Fixed Rate Loans,
and each other Borrowing shall be comprised entirely of ABR Loans or Eurodollar
Loans as the Borrower may request pursuant to Section 2.03 or 2.04 hereof, as
applicable; provided, however, that Borrowings on the Closing Date shall be
comprised entirely of ABR Loans. Each Lender may at its option make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding at
the same time; provided, however, that the Borrower shall not be entitled to
request any Borrowing that, if made, would result in more than twelve Eurodollar
Borrowings outstanding hereunder at any time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in Dallas, Texas as the Administrative Agent may designate not later
than 12:00 noon, Dallas, Texas time, and the Administrative Agent shall by 3:00
p.m., Dallas, Texas time, credit the amounts so received to an account in the
name of the Borrower, maintained with the Administrative Agent and designated by
the Borrower in the applicable Borrowing Request or Competitive Bid Request or,
if a Borrowing shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts so received to the
respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) The Borrower acknowledges that if the Borrower requests any Borrowing
with an Interest Period that would end after the Short Term Revolving Loan
Maturity Date or the Long Term Revolving Loan Maturity Date, as applicable, a
Breakage Event (as defined in Section 2.15 hereof) will occur on the Short Term
Revolving Loan Maturity Date or the Long Term Revolving Loan Maturity Date, as
applicable, and the Borrower will be obligated to indemnify the Lenders in
accordance with the terms of Section 2.15 hereof.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.21(e) hereof within the time specified
in such Section, the Issuing Bank will promptly notify the Administrative Agent
of the L/C Disbursement and the Administrative Agent will promptly notify each
Lender of such L/C Disbursement and its Pro Rata Percentage thereof. Each Lender
shall pay by wire transfer of immediately available funds to the Administrative
Agent not later than 2:00 p.m., Dallas, Texas time, on such date (or, if such
Lender shall have received such notice later than 12:00 (noon), Dallas, Texas
time, on any day, not later than 10:00 a.m., Dallas, Texas time, on the
immediately following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement (it being understood that such amount shall
be deemed to constitute an ABR Loan of such Lender and such payment shall be
deemed to have reduced the L/C Exposure), and the Administrative Agent will
promptly pay to the Issuing Bank amounts so received by it from the Lenders. The
Administrative Agent will promptly pay to the Issuing Bank any amounts received
by it from the Borrower pursuant to Section 2.21(e) hereof prior to the time
that any Lender makes any payment pursuant to this paragraph (f); any such
amounts received by the Administrative Agent thereafter will be promptly
remitted by the Administrative Agent to the Lenders that shall have made such
payments and to the Issuing Bank, as their interests may appear. If any Lender
shall not have made its Pro Rata Percentage of such L/C Disbursement available
to the Administrative Agent as provided above, such Lender and the Borrower
severally agree to pay interest on such amount, for each day from and including
the date such amount is required to be paid in accordance with this paragraph to
but excluding the date such amount is paid, to the Administrative Agent at (i)
in the case of the Borrower, a rate per annum equal to the interest rate
applicable to ABR Loans pursuant to Section 2.07 hereof, and (ii) in the case of
such Lender, for the first such day, the Federal Funds Effective Rate, and for
each day thereafter, the Alternate Base Rate.
Competitive Bid Procedure.ive Bid Procedure
(a) In order to request Competitive Bids, the Borrower shall hand deliver
or telecopy to the Administrative Agent a duly completed Competitive Bid Request
(i) in the case of a Eurodollar Competitive Borrowing, not later than 10:00
a.m., Dallas, Texas time, four Business Days before the proposed date of such
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than 10:00
a.m., Dallas, Texas time, one Business Day before the proposed date of such
Borrowing. A Competitive Bid Request shall not be made within five Business Days
after the date of any previous Competitive Bid Request. No ABR Loan shall be
requested in, or made pursuant to, a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit D-1 hereto
may be rejected by the Administrative Agent and the Administrative Agent shall
notify the Borrower of such rejection as promptly as practicable. Each
Competitive Bid Request shall refer to this Agreement and specify (i) whether
the Borrowing being requested is to be a Eurodollar Borrowing or a Fixed Rate
Borrowing; (ii) the date of such Borrowing (which shall be a Business Day);
(iii) the number and the location of the account to which funds are to be
disbursed (which shall be an account that complies with the requirements of
Section 2.02(c) hereof); (iv) the aggregate principal amount of such Borrowing,
which shall be a minimum of $3,000,000 and an integral multiple of $1,000,000;
(v) the Interest Period with respect thereto and (vi) whether such Competitive
Loan is being made under the Short Term Commitment or under the Long Term
Commitment. Promptly after its receipt of a Competitive Bid Request that is not
rejected, the Administrative Agent shall by telecopy in the form set forth in
Exhibit D-2 invite the Lenders to bid to make Competitive Loans pursuant to the
Competitive Bid Request. Each Competitive Loan may only be made in an amount
equal to or less than (i) the amount by which the Total Commitment exceeds the
Total Exposure on such date, (ii) if such Competitive Loan was made under the
Short Term Revolving Commitment, the amount by which the Short Term Commitment
exceeds the sum of (A) the aggregate outstanding Short Term Revolving Loans, (B)
the L/C Exposure attributable to the Short Term Commitment and (C) the aggregate
outstanding Competitive Loans attributable to the Short Term Commitment, and
(iii) if such Competitive Loan was made under the Long Term Revolving
Commitment, the amount by which the Long Term Commitment exceeds the sum of (A)
the aggregate outstanding Long Term Revolving Loans, (B) the L/C Exposure
attributable to the Long Term Commitment and (C) the aggregate outstanding
Competitive Loans attributable to the Long Term Commitment.
(b) Each Lender may make one or more Competitive Bids to the Borrower
responsive to a Competitive Bid Request. Each Competitive Bid by a Lender must
be received by the Administrative Agent by telecopy, (i) in the case of a
Eurodollar Competitive Borrowing, not later than 9:30 a.m., Dallas, Texas time,
three Business Days before the proposed date of such Competitive Borrowing, and
(ii) in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., Dallas,
Texas time, on the proposed date of such Competitive Borrowing. Competitive Bids
that do not conform substantially to the format of Exhibit D-3 may be rejected
by the Administrative Agent, and the Administrative Agent shall notify the
applicable Lender as promptly as practicable. Each Competitive Bid shall refer
to this Agreement and specify (x) the principal amount (which shall be a minimum
of $3,000,000 and an integral multiple of $1,000,000 and which may equal the
entire principal amount of the Competitive Borrowing requested by the Borrower)
of the Competitive Loan or Loans that the Lender is willing to make, (y) the
Competitive Bid Rate or Rates at which the Lender is prepared to make such Loan
or Loans and (z) the Interest Period applicable to such Loan or Loans and the
last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive Bid shall have been made and
the identity of the Lender that shall have made each bid.
(d) The Borrower may, subject only to the provisions of this paragraph
(d), accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject each Competitive Bid, (x) in the case of a Eurodollar
Competitive Borrowing, not later than 10:30 a.m., Dallas, Texas time, three
Business Days before the date of the proposed Competitive Borrowing, and (y) in
the case of a Fixed Rate Borrowing, not later than 10:30 a.m., Dallas, Texas
time, on the proposed date of the Competitive Borrowing; provided, however, that
(i) the failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Borrower has
decided to reject a Competitive Bid made at a lower Competitive Bid Rate, (iii)
the aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the principal amount specified in the Competitive Bid Request, (iv) if
the Borrower shall accept a Competitive Bid or Bids made at a particular
Competitive Bid Rate but the amount of such Competitive Bid or Bids would cause
the total amount to be accepted by the Borrower to exceed the amount specified
in the Competitive Bid Request, then the Borrower shall accept a portion of such
Competitive Bid or Bids in an amount equal to the amount specified in the
Competitive Bid Request less the amount of all other Competitive Bids so
accepted, which acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made pro rata in accordance with the amount of
each such Bid, and (v) except pursuant to clause (iv) above, no Competitive Bid
shall be accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal amount of $3,000,000 and an integral multiple of $1,000,000;
provided further, however, that if a Competitive Loan must be in an amount less
than $3,000,000 because of the provisions of clause (iv) above, such Competitive
Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (iv)
the amounts shall be rounded to integral multiples of $1,000,000 in a manner
determined by the Borrower. A notice given by the Borrower pursuant to this
paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, in
what amount and at what Competitive Bid Rate), and each successful bidder will
thereupon become bound, upon the terms and subject to the conditions hereof, to
make the Competitive Loan in respect of which its Competitive Bid has been
accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
Borrower at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) above.
Borrowing Procedure. In order to request a Borrowing (other than a
Competitive Borrowing or a deemed Borrowing pursuant to Section 2.02(f) hereof,
as to which this Section 2.04 shall not apply), the Borrower shall hand deliver
or telecopy to the Administrative Agent a duly completed Borrowing Request (a)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., Dallas, Texas
time, three Business Days before a proposed Borrowing, and (b) in the case of an
ABR Borrowing, not later than 10:00 a.m., Dallas, Texas on the date (which shall
be a Business Day) of a proposed Borrowing. Each Borrowing Request shall be
irrevocable, shall be signed by or on behalf of the Borrower and shall specify
the following information: (i) whether the Borrowing then being requested is to
be a Eurodollar Borrowing or an ABR Borrowing (it being understood that the
Borrowing on the Closing Date shall be an ABR Borrowing); (ii) the date of such
Borrowing (which shall be a Business Day); (iii) the number and location of the
account to which funds are to be disbursed (which shall be an account that
complies with the requirements of Section 2.02(c)) hereof; (iv) the amount of
such Borrowing; (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto; and (vi) if the Borrower has complied with
each condition set forth in Section 2.02(b) hereof and Section 4.03 hereof,
whether such Borrowing is to be a Short Term Revolving Loan or a Long Term
Revolving Loan; provided, however, that, notwithstanding any contrary
specification in any Borrowing Request, each requested Borrowing shall comply
with the requirements set forth in Section 2.03 hereof. If no election as to the
Type of Borrowing is specified in any such notice, then the requested Borrowing
shall be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the Lenders of any notice given pursuant to this
Section 2.04 hereof (and the contents thereof), and of each Lender's portion of
the requested Borrowing.
Evidence of Debt; Repayment of Loans.epayment of Loans
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Lenders (i) the then unpaid
principal amount of each Competitive Loan, on the last day of the Interest
Period applicable to such Loan or, if earlier, on the Short Term Revolving Loan
Maturity Date or the Long Term Revolving Loan Maturity Date, (ii) the then
unpaid principal amount of each Short Term Revolving Loan on the Short Term
Revolving Loan Maturity Date, and (iii) the then unpaid principal amount of each
Long Term Revolving Loan on the Long Term Revolving Loan Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) whether such Loan is a Short Term Revolving Loan or a Long Term
Revolving Loan, the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(e) As evidence of the Loans hereunder, on the Closing Date the Borrower
shall deliver to each Lender one promissory note evidencing its Pro Rata
Percentage of the Loans made hereunder. Such promissory note will evidence each
Lenders' Pro Rata Percentage of each Revolving Loan, L/C Exposure and each
Lenders' exposure under any Competitive Loan, if any.
Fees.ON 2.06. Fees
(a) The Borrower agrees to pay to each Lender, through the Administrative
Agent, such Facility Fees as are set forth in any Fee Letters (the "Facility
Fees") in accordance with such terms set forth in the Fee Letters.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in its Fee Letter at the times and in
the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Lender, through the
Administrative Agent, on the last day of March, June, September and December of
each year and on the date on which the Short Term Commitment and Long Term
Commitment of such Lender shall be terminated as applicable and as provided
herein, a fee (an "L/C Participation Fee") calculated on such Lender's Pro Rata
Percentage of the average daily aggregate L/C Exposure (excluding the portion
thereof attributable to unreimbursed L/C Disbursements) during the preceding
quarter (or shorter period commencing with the date hereof or ending with the
Short Term Revolving Loan Maturity Date, or the Long Term Revolving Loan
Maturity Date, as applicable, or the date on which all Letters of Credit have
been canceled or have expired and the Commitments of all Lenders shall have been
terminated) at a rate equal to the Applicable Percentage from time to time used
to determine the interest rate on Borrowings comprised of Eurodollar Loans
pursuant to Section 2.07 hereof, and (ii) to the Issuing Bank with respect to
each Letter of Credit the standard fronting, issuance and drawing fees specified
from time to time by the Issuing Bank (the "Issuing Bank Fees"). Subject to
Section 9.09 hereof and Applicable Law, all L/C Participation Fees and Issuing
Bank Fees shall be computed on the basis of the actual number of days elapsed in
a year of 365 or 366 days, as applicable.
(d) Subject to Section 9.09 hereof, commencing on the first Interest
Payment Date after the Closing Date and continuing on each Interest Payment Date
of each year on and until the date on which the Commitments of such Lender shall
be terminated as provided herein, the Borrower shall pay to the Administrative
Agent for the account of Lenders commitment fees (the "Commitment Fees") on the
average daily amount of the difference between (A) the Total Commitment and (B)
the Total Exposure, at a per annum rate (the "Commitment Fee Rate") based on the
Leverage Ratio for the most recently completed full fiscal quarter as set forth
below:
Leverage Ratio Per Annum Commitment Fee Rate
Category 1
Greater than or
equal to 1.50 to 1.00 0.2500%
Category 2
Less than 1.50 to 1.00 0.1875%
Except as set forth below, the Leverage Ratio utilized for purposes of
determining the Commitment Fee Rate shall be that in effect as of the last day
of the most recent fiscal quarter of the Borrower in respect of which financial
statements have been delivered pursuant to this Agreement. From the date hereof
until the earliest to occur of the initial delivery of financial statements
pursuant to Section 5.04(a) or (b) hereof, the Borrower's failure to timely
deliver such financial statements or the occurrence of an Event of Default, the
Leverage Ratio shall be deemed to be within Category 1 above. The Commitment Fee
Rate from time to time in effect shall be based on the Leverage Ratio from time
to time in effect, and each change in the Commitment Fee Rate resulting from a
change in (or the initial establishment of) the Leverage Ratio shall be
effective with respect to the Commitment Fee Rate outstanding on and after the
date of delivery to the Administrative Agent of the financial statements and
certificates required by Section 5.04(a) or (b) hereof indicating such change to
and including the date immediately preceding the next date of delivery of such
financial statements and certificates indicating another such change.
Notwithstanding the foregoing, (a) at any time during which the Borrower has
failed to deliver the financial statements and certificates required by Section
5.04(a) or (b) hereof, or (b) at any time after the occurrence and during the
continuance of an Event of Default, the Leverage Ratio shall be deemed to be in
Category 1 above for purposes of determining the Commitment Fee Rate. Subject to
Section 9.09 hereof and Applicable Law, all Commitment Fees shall be computed on
the basis of the actual number of days elapsed in a year of 365 or 366 days, as
applicable.
(e) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable, except in
accordance with the provisions of Section 9.09 hereof.
Interest on Loans.Interest on Loans
(a) Subject to the provisions of Section 2.08 hereof, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when
the Alternate Base Rate is determined by reference to the Prime Rate and over a
year of 360 days at all other times) at a rate per annum equal to the Alternate
Base Rate. If the amount of interest payable in respect of any interest
computation period is limited to the Highest Lawful Rate in accordance with the
definition of Alternate Base Rate, and the amount of interest payable in respect
of any subsequent interest computation period would be less than the Maximum
Amount, then the amount of interest payable in respect of such subsequent
interest computation period shall be automatically increased to the Maximum
Amount; provided that at no time shall the aggregate amount by which interest
paid has been increased pursuant to this sentence exceed the aggregate amount by
which interest has been reduced had the Alternate Base Rate not been limited to
the Highest Lawful Rate.
(b) Subject to the provisions of Section 2.08 hereof, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to (i) in the case of each Revolving Loan, the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable Percentage in
effect from time to time, and (ii) in the case of each Competitive Loan, the
LIBO Rate for the Interest Period in effect for such Borrowing plus the Margin
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03 hereof.
(c) Subject to the provisions of Section 2.08 hereof, each Fixed Rate Loan
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to the fixed rate of interest
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03 hereof.
(d) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan and on the last day of each Interest Period except as
otherwise provided in this Agreement. The applicable Alternate Base Rate or
Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as
the case may be, shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
Default Interest. Notwithstanding any other provision of this Agreement
and the other Loan Papers except Section 9.09 hereof to the contrary, if there
shall exist any Event of Default hereunder, at the election of the Required
Lenders by written notice to the Borrower, the Borrower shall pay interest on
the Obligations to but excluding the date of actual payment (after as well as
before judgment) at a rate per annum equal to the lesser of (a) the Highest
Lawful Rate and (b) a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) equal to the sum of the Alternate Base Rate plus 1.00%.
Alternate Rate of Interest. In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any Interest Period for a
Eurodollar Borrowing the Administrative Agent shall have determined that dollar
deposits in the principal amounts of the Loans comprising such Borrowing are not
generally available in the London interbank market, or that the rates at which
such dollar deposits are being offered will not adequately and fairly reflect
the cost to the Required Lenders of making or maintaining Eurodollar Loans
during such Interest Period, or that reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice of such determination to
the Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.04 hereof shall be
deemed to be a request for an ABR Borrowing provided that, any request by the
Borrower for a Eurodollar Competitive Borrowing pursuant to Section 2.03 hereof
shall be of no force and effect and shall be denied by the Administrative Agent.
Each determination by the Administrative Agent hereunder shall be conclusive
absent manifest error.
SECTION 2.10. Termination and Reduction of Commitments; ExtensSECTION
2.10.ort TTermination and Reduction of Commitments; Extension of the Short Term
Revolving Loan Maturity Date.
(a) Maturity Dates. The Short Term Commitments shall automatically
terminate on the Short Term Revolving Loan Maturity Date (and the same may be
extended pursuant to paragraph (g) of this Section 2.10). The Long Term
Commitments shall automatically terminate on the Long Term Revolving Loan
Maturity Date. The L/C Commitment shall terminate upon the termination of the
Total Commitments.
(b) Voluntary Reduction of the Commitments. Upon at least three Business
Days' prior irrevocable written or telecopy notice to the Administrative Agent
(specifying whether such reduction or termination shall be applied to the Short
Term Commitments or the Long Term Commitments, and the amount of reduction), the
Borrower may at any time in whole permanently terminate, or from time to time in
part permanently reduce, the either or both of the Commitments; provided,
however, that (i) each partial reduction shall be in an integral multiple of
$1,000,000 and in a minimum amount of $5,000,000 and (ii) the Total Commitment
shall not be reduced to an amount that is less than the Total Exposure.
(c) Reduction of Short Term Commitment by Increase of Long Term
Commitment. The Short Term Commitments shall be reduced immediately and
automatically dollar for dollar on the date and in the amount of each increase
of the Long Term Commitments, as further described in Section 4.03 hereof.
(d) Total Exposure in Excess of Total Commitments. If, as a result of any
reduction of the Commitments, the Total Exposure exceeds the Total Commitments,
then the Borrower shall, on the date of such reduction, repay Loans in
accordance with this Agreement in an aggregate principal amount sufficient to
eliminate such excess. If, as a result of any reduction of the Short Term
Commitments, the aggregate outstanding Short Term Revolving Loans exceeds the
aggregate Short Term Commitments, then the Borrower shall, on the date of such
reduction, repay Short Term Revolving Loans in accordance with this Agreement in
an aggregate principal amount sufficient to eliminate such excess. If, as a
result of any reduction of the Long Term Commitments, the aggregate outstanding
Long Term Revolving Loans exceeds the aggregate Long Term Commitments, then the
Borrower shall, on the date of such reduction, repay Long Term Revolving Loans
in accordance with this Agreement in an aggregate principal amount sufficient to
eliminate such excess.
(e) Commitment Reduction Due to Asset Dispositions. The Short Term
Commitments or the Long Term Commitments (as specified by the Borrower) relating
to any Loan prepaid pursuant to Section 2.12(c) hereof shall be automatically
and permanently reduced, on the date of such prepayment, in an amount equal to
the amount of such prepayment.
(f) Commitment Reduction, Generally. Each reduction in the Commitments
hereunder shall be made ratably among the Lenders in accordance with their
respective Commitments. The Borrower shall pay, to the Administrative Agent for
the account of the applicable Lenders, on the date of each termination or
reduction, the Commitment Fees on the amount of the Commitments so terminated or
reduced accrued to but excluding the date of such termination or reduction.
(g) Extension of Short Term Commitments. The Borrower may, by giving
written notice to the Administrative Agent (which shall promptly deliver a copy
to each of the Lenders) not fewer than 15 days prior to the then current Short
Term Revolving Loan Maturity Date (the "Existing Maturity Date"), extend the
Short Term Revolving Loan Maturity Date to the date that occurs 364 days after
the Existing Maturity Date (or if such 364th day is not a Business Day, the
immediately preceding Business Day); provided, however, that the Borrower may
effect only four extensions pursuant to this Section 2.10(g) hereof.
Notwithstanding the foregoing, the extension of the Existing Maturity Date shall
not be effective with respect to any Lender unless (i) no Default or Event of
Default shall have occurred and be continuing on both the date of the notice
requesting such extension and on the Existing Maturity Date and (ii) each of the
representations and warranties set forth in Article III hereof (including,
without limitation, those set forth in Section 3.06 hereof and Section 3.09
hereof) shall be true and correct in all material respects on and as of each of
the date of the notice requesting such extension and the Existing Maturity Date
with the same force and effect as if made on and as of each such date, except to
the extent such representations and warranties expressly relate to an earlier
date.
Conversion and Continuation of Borrowings.ion of Borrowings
(a) The Borrower shall have the right at any time upon prior irrevocable
notice to the Administrative Agent (x) not later than 12:00 (noon), Dallas,
Texas time, one Business Day prior to conversion, to convert any Eurodollar
Borrowing into an ABR Borrowing, (y) not later than 10:00 a.m., Dallas, Texas
time, three Business Days prior to conversion or continuation, to convert any
ABR Borrowing into a Eurodollar Borrowing or to continue any Eurodollar
Borrowing as a Eurodollar Borrowing for an additional Interest Period, and (z)
not later than 10:00 a.m., Dallas, Texas time, three Business Days prior to
conversion, to convert the Interest Period with respect to any Eurodollar
Borrowing to another permissible Interest Period, subject in each case to the
following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and 2.09(b)
hereof regarding the principal amount and maximum number of Borrowings of
the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.15
hereof;
(v) any portion of a Borrowing maturing or required to
be repaid in less than one month may not be converted into or
continued as a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing; and
(vii) after the occurrence and during the continuance of a Default
or an Event of Default, no outstanding Loan may be converted into, or
continued for an additional interest period as, a Eurodollar Loan.
(b) Each notice pursuant to this Section 2.11 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day), (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto, and (v) whether such Borrowing is made under the Short Term
Revolving Loans or the Long Term Revolving Loans. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as a Eurodollar Borrowing, the Borrower shall be deemed to have selected an
Interest Period of one month's duration. The Administrative Agent shall advise
the Lenders of any notice given pursuant to this Section 2.11 and of each
Lender's portion of any converted or continued Borrowing. If the Borrower shall
not have given notice in accordance with this Section 2.11 to continue any
Borrowing into a subsequent Interest Period (and shall not otherwise have given
notice in accordance with this Section 2.11 to convert such Borrowing), such
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be continued into a new
Interest Period as an ABR Borrowing. The Borrower shall not have the right to
continue or convert the Interest Period with respect to any Competitive
Borrowing pursuant to this Section 2.11.
Prepayment. . Prepayment
(a) Voluntary Prepayment. The Borrower shall have the right at any time
and from time to time to prepay any Borrowing, whether such Borrowing is a Short
Term Revolving Loan or a Long Term Revolving Loan, in whole or in part, upon at
least two Business Days' prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) to the Administrative Agent
before 11:00 a.m., Dallas, Texas time; provided, however, that each partial
prepayment shall be in an amount that is an integral multiple of $1,000,000 and
not less than $3,000,000.
(b) Mandatory Prepayment and Cash Collateralization. In the event of any
termination of the Commitments, the Borrower shall repay or prepay all its
outstanding Borrowings (and irrevocably cash collateralize the L/C Exposure in
the manner contemplated by Section 2.21(j) hereof) on the date of such
termination. In the event of any partial reduction of the Commitments, then (i)
at or prior to the effective date of such reduction or termination, the
Administrative Agent shall notify the Borrower and the Lenders of the aggregate
amount of outstanding Revolving Loans or Total Exposure, as the case may be,
after giving effect thereto and (ii) if the sum of the aggregate amount of
outstanding Revolving Loans or Total Exposure, as the case may be, and the
aggregate outstanding principal amount of the Competitive Loans, at the time
would exceed the Total Commitments, after giving effect to such reduction or
termination, then the Borrower shall, on the date of such reduction or
termination, repay or prepay Borrowings in an amount sufficient to eliminate
such excess.
(c) Asset Dispositions. Whenever and on each occasion that the Borrower or
any Subsidiary of the Borrower receives Net Cash Proceeds from an Asset
Disposition (not including any transaction in which the Borrower transfers
control through a sale, corporate transaction or other disposition, of the hotel
contracts and related assets for its hotel customers outside of the United
States) which, when taken together with all such Net Cash Proceeds theretofore
received, exceeds $25,000,000 (any such Net Cash Proceeds in excess of such
amount being referred to as "Excess Proceeds"), the Borrower will, substantially
simultaneously with (and in any event not later than the Business Day next
following) the receipt of such Excess Proceeds, pay to the Administrative Agent
(for application to the prepayment of the Loans as designated by the Borrower,
however, upon the failure of the Borrower to designate, application shall be
made to reduce Short Term Revolving Loans first, and then to the Long Term
Revolving Loans) an amount equal to such Excess Proceeds. To the extent such
prepayment is applied to the Short Term Revolving Loans, the Short Term
Commitment relating to the Short Term Revolving Loans so prepaid will
automatically be permanently reduced in an amount equal to the amount of such
prepayment. When all Short Term Revolving Loans have been prepaid to zero and
the Short Term Commitment is zero, the remaining amounts shall repay amounts
owed under the Long Term Revolving Loans. To the extent such prepayment is
applied to the Long Term Revolving Loans, the Long Term Commitment relating to
the Long Term Revolving Loans so prepaid will automatically be permanently
reduced in an amount equal to the amount of such prepayment.
(d) Escrow Amounts for Repayment of Fixed Rate Borrowings and Eurodollar
Borrowings. In the event the amount of any prepayment required to be made above
shall exceed the aggregate principal amount of the applicable outstanding ABR
Loans (the amount of any such excess being called the "Escrow Amount"), the
Borrower shall have the right, in lieu of making such prepayment in full, to
prepay all the outstanding applicable ABR Loans and to deposit an amount equal
to the Escrow Amount with the Administrative Agent in a cash collateral account
maintained by and in the sole dominion and control of the Administrative Agent.
Any amounts so deposited shall be held by the Administrative Agent as collateral
for the Obligations and applied to the prepayment of outstanding Eurodollar
Loans at the end of the current Interest Periods applicable thereto. On any
Business Day on which (x) collected amounts remain on deposit in or to the
credit of such cash collateral account after giving effect to the payments made
on such day and (y) the Borrower shall have delivered to the Administrative
Agent a written request or telephonic request (which shall be promptly confirmed
in writing) that such remaining collected amounts be invested in the Permitted
Investments specified in such request, the Administrative Agent shall use its
reasonable efforts to invest such remaining collected amounts in such Permitted
Investments; provided, however, that the Administrative Agent shall have
continuous dominion and full control over any such investments (and over any
interest that accrues thereon) to the same extent that it has dominion and
control over such cash collateral account and no Permitted Investment shall
mature after the end of the Interest Period for which it is to be applied. The
Borrower shall not have the right to withdraw any amount from such cash
collateral account until such Eurodollar Loans and accrued interest thereon are
paid in full or if a Default or Event of Default then exists or would result.
(e) Notice of Voluntary Prepayment. Each notice of prepayment shall
specify the prepayment date, the principal amount of each Borrowing (or portion
thereof) to be prepaid and whether such amount is to prepaid under the Short
Term Revolving Loan or the Long Term Revolving Loan. Each such notice shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.15 hereof but otherwise without premium or
penalty. All prepayments under this Section 2.12 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
(f) Prepayment as a Result of the Total Exposure in Excess of Total
Commitments. Whenever and on each occasion that the Total Exposure exceeds the
Total Commitments, the Borrower will immediately prepay the Revolving Loans by
the amount necessary to reduce the Total Exposure to an amount less than or
equal to the Total Commitments. Any such prepayment shall be applied as directed
by the Borrower, however, upon failure of the Borrower to so direct, such
amounts shall first be applied to prepay Short Term Revolving Loans and then to
prepay Long Term Revolving Loans. Whenever and on each occasion that the
aggregate outstanding Short Term Revolving Loans exceeds the Short Term
Commitments, the Borrower will immediately prepay the Short Term Revolving Loans
by the amount necessary to reduce the aggregate outstanding Short Term Revolving
Loans to an amount less than or equal to the Short Term Commitments. Whenever
and on each occasion that the aggregate outstanding Long Term Revolving Loans
exceeds the Long Term Commitments, the Borrower will immediately prepay the Long
Term Revolving Loans by the amount necessary to reduce the aggregate outstanding
Long Term Revolving Loans to an amount less than or equal to the Long Term
Commitments.
SECTION 2.13. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision of this Agreement, if after the
date of this Agreement any change in any Law or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
Law) shall change the basis of taxation of payments to any Lender or the Issuing
Bank of the principal of or interest on any Eurodollar Loan or Fixed Rate Loan
made by such Lender or any Fees or other amounts payable hereunder (other than
changes in respect of taxes imposed on the overall net income (including without
limitation franchise taxes on net income, branch profit taxes and alternate
minimum income taxes) of such Lender or the Issuing Bank by the jurisdiction in
which such Lender or the Issuing Bank is incorporated or has its principal
office or by any political subdivision or taxing authority therein), or shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
extended by any Lender or the Issuing Bank (except any such reserve requirement
which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or
the Issuing Bank or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans or Fixed Rate Loans made by such Lender or
any Letter of Credit or participation therein, and the result of any of the
foregoing shall be to increase the cost to such Lender or the Issuing Bank of
making or maintaining any Eurodollar Loan or Fixed Rate Loan or increase the
cost to any Lender of issuing or maintaining any Letter of Credit or purchasing
or maintaining a participation therein or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder whether of
principal, interest or otherwise, by an amount deemed by such Lender or the
Issuing Bank to be material, then the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, upon demand such additional amount or amounts
as will compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any Law, agreement or guideline regarding
capital adequacy, or any change after the date hereof in any such Law, agreement
or guideline (regardless of whether the change in such Law, agreement or
guideline has been adopted) or in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
the Issuing Bank or any Lender's or the Issuing Bank's holding company with any
request or directive regarding capital adequacy (whether or not having the force
of Law) of any Governmental Authority has or would have the effect of reducing
the rate of return on such Lender's or the Issuing Bank's capital or on the
capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made or participations in Letters of
Credit purchased by such Lender pursuant hereto or the Letters of Credit issued
by the Issuing Bank pursuant hereto to a level below that which such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company could
have achieved but for such applicability, adoption, change or compliance (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy) by an amount deemed by such Lender or the Issuing Bank to be material,
then from time to time the Borrower shall pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in
reasonable detail the basis for computation of the amount or amounts necessary
to compensate such Lender or the Issuing Bank or its holding company, as
applicable, as specified in paragraph (a) or (b) above shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Bank the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided,
however, that in no event shall the Borrower be obligated to make any payment
under this Section 2.13 in respect of increased costs incurred prior to the
period commencing 90 days prior to the date on which demand for compensation in
respect of such increased costs is first made. In addition, the Borrower shall
not incur liability for additional amounts with respect to changes in the basis
of taxation described above for periods of time before such Lender or Issuing
Bank becomes aware of the change in such basis except in the case of any
retroactive application of such a change. The protection of this Section shall
be available to each Lender and the Issuing Bank regardless of any possible
contention of the invalidity or inapplicability or the Law, agreement, guideline
or other change or condition that shall have occurred or been imposed.
Notwithstanding any other provision of this Section, no Lender shall be entitled
to demand compensation hereunder in respect of any Competitive Loan if it shall
have been aware of the event or circumstance giving rise to such demand at the
time it submitted the Competitive Bid pursuant to which such Loan was made.
Change in Legality.hange in Legality
(a) Notwithstanding any other provision of this Agreement, if, after the
date hereof, any change in any Law or in the interpretation thereof by any
Governmental Authority charged with the administration or interpretation thereof
shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or
to give effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Borrower and to the
Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such Lender
hereunder (or be continued for additional Interest Periods and ABR Loans
will not thereafter (for such duration) be converted into Eurodollar
Loans), whereupon such Lender shall not submit a Competitive Bid in
response to a request for a Eurodollar Competitive Loan and any request
for a Eurodollar Borrowing (or to convert an ABR Borrowing to a Eurodollar
Borrowing or to continue a Eurodollar Borrowing for an additional interest
Period) shall, as to such Lender only, be deemed a request for an ABR Loan
(or a request to continue an ABR Loan as such for an additional Interest
Period or to convert a Eurodollar Loan into an ABR Loan, as the case may
be), unless such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar
Loans shall be automatically converted to ABR Loans as of the effective
date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
Indemnity. The Borrower shall indemnify each Lender against any loss or
expense that such Lender may sustain or incur as a consequence of (a) any event,
other than a default by such Lender in the performance of its obligations
hereunder, which results in (i) such Lender receiving or being deemed to receive
any amount on account of the principal of any Fixed Rate Loan or Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion
of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period
with respect to any Eurodollar Loan, in each case other than on the last day of
the Interest Period in effect therefor, or (iii) any Fixed Rate Loan or
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be
made pursuant to a conversion or continuation under Section 2.11 hereof) not
being made after notice of such Loan shall have been given by the Borrower
hereunder for any reason other than default by a Lender (any of the events
referred to in this clause (a) being called a "Breakage Event") or (b) any
default in the making of any payment or prepayment required to be made
hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its cost of
obtaining funds for the Fixed Rate Loan or Eurodollar Loan that is the subject
of such Breakage Event for the period from the date of such Breakage Event to
the last day of the Interest Period in effect (or that would have been in
effect) for such Loan over (ii) the amount of interest likely to be realized by
such Lender in redeploying the funds released or not utilized by reason of such
Breakage Event for such period. A certificate of any such Lender shall be
delivered to the Borrower and shall be conclusive absent manifest error, so long
as such certificate sets forth in reasonable detail any amount or amounts which
such Lender is entitled to receive pursuant to this Section 2.15 and the basis
of computation of the amount or amounts necessary to compensate such Lender.
Pro Rata Treatment. Except as provided below in this Section 2.16 with
respect to Competitive Borrowings and as required under Section 2.14 hereof,
each Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each payment of the Facility Fees and
Commitment Fees, each reduction of the Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Loans). Each payment of principal of any Competitive Borrowing shall
be allocated pro rata among the Lenders participating in such Borrowing, in
accordance with the respective principal amounts of their outstanding
Competitive Loans comprising such Borrowing. Each payment of interest on any
Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective amounts of
accrued and unpaid interest on their outstanding Competitive Loans comprising
such Borrowing. For purposes of determining the available Commitments of the
Lenders at any time, each outstanding Competitive Borrowing shall be deemed to
have utilized the Commitments of the Lenders (including those Lenders which
shall not have made Loans as part of such Competitive Borrowing) pro rata in
accordance with such respective Commitments. Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing to the next higher or lower whole dollar amount.
Sharing of Setoffs. Each Lender agrees that if it shall, through the
exercise of a right of banker's lien, setoff or counterclaim against the
Borrower, or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any Debtor Relief Law or other
similar Law or otherwise, or by any other means, obtain payment (voluntary or
involuntary) in respect of any Loan or Loans or L/C Disbursement as a result of
which the unpaid principal portion of its Loans and participations in L/C
Disbursements shall be proportionately less than the unpaid principal portion of
the Loans and participations in L/C Disbursements of any other Lender, it shall
be deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a
participation in the Loans and L/C Exposure of such other Lender, so that the
aggregate unpaid principal amount of the Loans and L/C Exposure and
participations in Loans and L/C Exposure held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Loans and L/C
Exposure then outstanding as the principal amount of its Loans and L/C Exposure
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Loans and L/C Exposure outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Loan or L/C Disbursement deemed to have been so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower to such Lender by reason thereof as fully as if
such Lender had made a Loan directly to the Borrower in the amount of such
participation.
Payments..18. Payments
(a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any L/C Disbursement or any Fees or other amounts)
hereunder not later than 12:00 (noon), Dallas, Texas time, on the date when due
in immediately available dollars, without setoff, defense or counterclaim. Each
such payment (other than Issuing Bank Fees, which shall be paid directly to the
Issuing Bank,) shall be made to the Administrative Agent at its offices at 901
Main, 64th Floor, Dallas, Texas 75202.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.
Taxes.N 2.19. Taxes
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.18 hereof, free and clear of and without deduction for
any and all current or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto excluding (i) income
taxes imposed on the net income (including without limitation, branch profit
taxes and alternative minimum income taxes of the Administrative Agent, any
Lender or the Issuing Bank (or any transferee or assignee thereof, including a
participation holder (any such entity a "Transferee")), (ii) franchise taxes
imposed on the net income of the Administrative Agent, any Lender or the Issuing
Bank (or Transferee), in each case by the jurisdiction under the Laws of which
the Administrative Agent, such Lender or the Issuing Bank (or Transferee) is
organized or any political subdivision thereof or by the jurisdiction in which
the applicable lending or issuing office of the Administrative Agent, such
Lender, or the Issuing Bank (or Transferee) is located or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charge, withholdings and liabilities, collectively or individually, being called
"Taxes"). If the Borrower shall be required to deduct any Taxes from or in
respect of any sum payable hereunder to the Administrative Agent, any Lender or
the Issuing Bank (or and Transferee), (i) the sum payable shall be increased by
the amount (an "additional amount") necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.19) the Administrative Agent, such Lender or the Issuing Bank or
Transferee), as the case may be, shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with Applicable Law.
(b) In addition, the Borrower agrees to pay to the relevant Governmental
Authority in accordance with Applicable Law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from and payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent, each Lender and
the Issuing Bank (or Transferee) for the full amount of Taxes and Other Taxes
paid by the Administrative Agent, such Lender or the Issuing Bank (or
Transferee), as the case may be, and any liability, (including penalties,
interest and expenses (including reasonable attorney's fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability prepared by the
Administrative Agent, a Lender or the Issuing Bank (or Transferee), or the
Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Administrative Agent, any Lender or the
Issuing Bank (or Transferee), as the case may be, makes written demand therefor.
(d) If the Administrative Agent, a Lender or the Issuing Bank (or
Transferee) receives a refund in respect of any Taxes or Other Taxes as to which
it has been indemnified by the Borrower or with respect to which the Borrower
has paid additional amounts pursuant to this Section 2.19, it shall within 30
days from the date of such receipt pay over to the Borrower (a) such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section 2.19 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the Issuing Bank (or Transferee) and (b)
interest paid by the relevant Governmental Authority with respect to such
refund; provided, however, that the Borrower, upon the request of the
Administrative Agent, such Lender or the Issuing Bank (or Transferee), shall
repay the amount paid over to the Borrower (plus penalties, interest or other
charges) to the Administrative Agent, such Lender or the Issuing Bank (or
Transferee) in the event the Administrative Agent, such Lender or the Issuing
Bank (or Transferee) is required to repay such refunds to such Governmental
Authority. If the Borrower determines in good faith that a reasonable basis
exists for contesting any Tax or Other Tax, the Administrative Agent, Lender,
Issuing Bank or Transferee, as applicable, shall cooperate with the Borrower in
challenging such Tax or Other Tax at the Borrower's expense if requested by the
Borrower (it being understood and agreed that the Administrative Agent, Lender,
Issuing Bank or Transferee, as applicable, shall have no obligation to contest
or responsibility for contesting such Tax or Other Tax).
(e) As soon as practicable after the date of any payment of Taxes or Other
Taxes by the Borrower to the relevant Governmental Authority, the Borrower will
deliver to the Administrative Agent, at its address referred to in Section 9.01
hereof, the original or a certified copy of any receipt actually issued by such
Governmental Authority evidencing payment thereof.
(f) Each Lender (or Transferee) that is organized under the Laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, a certificate containing representations regarding the status of such
Non-U.S. Lender as not being a bank for purposes of Section 881(c) of the Code,
as not being a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and as not being a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code)), properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or reduced rate of, U.S. Federal withholding
tax on payments by the Borrower under this Agreement. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of a Transferee that is a participation holder,
on or before the date such participation holder becomes a Transferee hereunder)
and on or before the date, if any, such Non-U.S. Lender changes its applicable
lending office by designating a different lending office (a "New Lending
Office"). In addition, each Non-U.S. Lender shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered by such
Non-U S. Lender. Notwithstanding any other provision of this Section 2.19(f), a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
Section 2.19(f) that such Non-U.S. Lender is not legally able to deliver.
(g) The Borrower shall not be required to indemnify any Non-U.S. Lender or
to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed on the date such Non-U.S. Lender became a party
to this Agreement (or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; provided, however,
that this paragraph (g) shall not apply (x) to any Transferee or New Lending
Office that becomes a Transferee or New Lending Office as a result of an
assignment, participation, transfer or designation made at the request of the
Borrower and (y) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee), acting through a New Lending Office,
would be entitled to receive (without regard to this paragraph (g)) do not
exceed the indemnity payment or additional amounts that the Person making the
assignment, participation or transfer to such Transferee, or Lender (or
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts would not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (g) above.
(h) Nothing contained in this Section 2.19 shall require any Lender or the
Issuing Bank (or any Transferee) or the Administrative Agent to make available
any of its tax returns (or any other information that it deems to be
confidential or proprietary).
(i) Each Bank represents that, to the best of its knowledge, it is not a
party to any "conduit financing arrangement" as defined under applicable
Treasury Regulations promulgated under the Code.
(j) Any Non-U.S. Lender that could become completely exempt from
withholding of any tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof ("U.S.
Taxes") in respect of payment of any obligations due to such Non-U.S. Lender
under this Agreement ("Lender Obligations") if the Lender Obligations were in
registered form for U.S. Federal income tax purposes may request the Borrower
(through the Administrative Agent), and the Borrower agrees thereupon, to
exchange any promissory note(s) evidencing such Lender Obligations for
promissory note(s) registered as provided in subsection (k) below (each, a
"Registered Note"). Registered Notes may not be exchanged for promissory notes
that are not Registered Notes.
(k) From and after the time, if any, when any Lender requests a Registered
Note, the Borrower shall maintain, or cause to be maintained, a register (the
"Register") on which it enters the name of each registered owner of the Lender
Obligation(s) evidenced by a Registered Note. A Registered Note and the Lender
Obligation(s) evidenced thereby may be assigned or otherwise transferred in
whole or in part only by registration of such assignment or transfer of such
Registered Note and the Lender Obligation(s) evidenced thereby on the Register
(and each Registered Note shall expressly so provide). Any assignment or
transfer of all or part of such Lender Obligation(s) and the Registered Note(s)
evidencing the same shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Registered Note(s) evidencing such
Lender Obligation(s), duly endorsed by (or accompanied by a written instrument
of assignment or transfer duly executed by) the Registered Noteholder thereof,
and thereupon one or more new Registered Note(s) in the same aggregate principal
amount shall be issued to the designated assignee(s) or transferee(s) pursuant
to, in accordance with, and subject to the restrictions of, Section 9.04
hereof). Prior to the due presentment for registration of assignment or transfer
of any Registered Note, the Borrower and the Administrative Agent shall treat
the Person in whose name such Lender Obligation(s) and the Registered Note(s)
evidencing the same is registered as the owner thereof for the purpose of
receiving all payments thereon and for all other purposes, notwithstanding any
notice to the contrary. The Register shall be available for inspection by the
Administrative Agent and any Lender at any reasonable time upon reasonable prior
notice.
SECTION 2.20. Assignment of Commitments Under Certain
CircumAssignment of Commitments Under Certain Circumstances; Duty to
Mitigate.
(a) In the event (i) any Lender or the Issuing Bank delivers a certificate
requesting compensation pursuant to Section 2.13 hereof, (ii) any Lender or the
Issuing Bank delivers a notice described in Section 2.14 hereof or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.19 hereof, the Borrower may, at its sole expense and
effort (including with respect to the processing and recordation fee referred to
in Section 9.04(b) hereof), upon notice to such Lender or the Issuing Bank and
the Administrative Agent, require such Lender or the Issuing Bank to transfer
and assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04 hereof), all of its interests, rights and obligations
under this Agreement to an assignee that shall assume such assigned obligations
which assignee may be another Lender, if a Lender accepts such assignment);
provided that (x) such assignment shall not conflict with any Law, rule or
regulation or order of any court or other Governmental Authority having
jurisdiction, (v) the Borrower shall have received the prior written consent of
the Administrative Agent (and, if a Commitment is being assigned, of the Issuing
Bank), which consent shall not unreasonably be withheld, and (z) the Borrower or
such assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans and
participations in L/C Disbursements of such Lender or the Issuing Bank plus all
Fees and other amounts accrued for the account of such Lender or the Issuing
Bank hereunder (including any amounts under Section 2.13 hereof and Section 2.15
hereof); provided further that, if prior to any such transfer and assignment the
circumstances or event that resulted in such Lender's or the Issuing Bank's
claim for compensation under Section 2.13 hereof or notice under Section 2.14
hereof or the amounts paid pursuant to Section 2.19 hereof, as the case may be,
cease to cause such Lender or the Issuing Bank to suffer increased costs or
reductions in amounts received or receivable or reduction in return on capital,
or cease to have the consequences specified in Section 2.14, or cease to result
in amounts being payable under Section 2.19 hereof, as the case may be,
including as a result of any action taken by such Lender or the Issuing Bank
pursuant to paragraph (b) below), or if such Lender or the Issuing Bank shall
waive its right to claim further compensation under Section 2.13 hereof in
respect of such circumstances or event or shall withdraw its notice under
Section 2.14 hereof or shall waive its right to further payments under Section
2.19 hereof in respect of such circumstances or event, as the case may be, then
such Lender or the Issuing Bank shall not thereafter be required to make any
such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation under
Section 2.13 hereof, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.14 hereof or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.19, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.13 hereof or enable it
to withdraw its notice pursuant to Section 2.14 hereof or would reduce accounts
payable pursuant to Section 2.19 hereof, as the case may be, in the future. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender or the Issuing Bank in connection with any such filing or assignment,
delegation and transfer.
Letters of Credit.Letters of Credit
(a) General. The Borrower may request the issuance of a Letter of Credit,
in a form reasonably acceptable to the Administrative Agent and the Issuing
Bank, appropriately completed, for the account of the Borrower, at any time and
from time to time while the Commitments remain in effect. The face amount of
each Letter of Credit may never be greater than the lesser of (i) $10,000,000
and (ii) the amount by which the Total Commitment exceeds the Total Exposure on
the date of issuance. This Section shall not be construed to impose an
obligation upon the Issuing Bank to issue any Letter of Credit that is
inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
In order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the Borrower shall hand deliver or
telecopy to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a completed
Application and a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, the date of
issuance, amendment, renewal or extension, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) below), the amount of
such Letter of Credit, the name and address of the beneficiary thereof, whether
such Letter of Credit is being issued under the Short Term Commitment or the
Long Term Commitment and such other information as shall be necessary to prepare
such Letter of Credit. In connection with a request for the issuance of a Letter
of Credit, in the event of any inconsistency between the terms of any
Application and the provisions of this Agreement, the provisions of this
Agreement shall be controlling. A Letter of Credit shall be issued, amended,
renewed or extended only if, and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that, after giving effect to such issuance, amendment, renewal or extension (A)
the L/C Exposure shall not exceed $10,000,000, (B) the sum of the Total Exposure
shall not exceed the Total Commitment, and (C) as applicable, (I) the sum of the
aggregate outstanding Short Term Revolving Loans plus L/C Exposure attributable
to the Short Term Commitment (after giving effect to the issuance of such Letter
of Credit) does not exceed the Short Term Commitment, and (II) the sum of the
aggregate outstanding Long Term Revolving Loans plus L/C Exposure attributable
to the Long Term Commitment (after giving effect to the issuance of such Letter
of Credit) does not exceed the Long Term Commitment. The Issuing Bank shall not
enter into any amendment of an outstanding Letter of Credit which has not been
requested or approved in writing by the Borrower.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the Short
Term Revolving Loan Maturity Date or the Long Term Revolving Loan Maturity Date,
as applicable, unless such Letter of Credit (i) expires by its terms on an
earlier date or (ii) has a one-year tenor and provides for the renewal thereof
for additional one-year periods, so long as such periods referred to in this
clause (ii) shall not in any event expire at a date later than the date that is
five Business Days prior to the Short Term Revolving Loan Maturity Date or the
Long Term Revolving Loan Maturity Date, as applicable.
(d) Participations. By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each such Lender hereby acquires from the
applicable Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Pro Rata Percentage of the aggregate amount available to bc drawn under
such Letter of Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Lender's Pro Rata Percentage of each L/C Disbursement
made by the Issuing Bank and not reimbursed by the Borrower forthwith on the
date due as provided in Section 2.02(f) hereof. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C Disbursement not later than two hours after
the Borrower shall have received notice from the Issuing Bank that payment of
such draft will be made, or, if the Borrower shall have received such notice
later than 10:00 a.m., Dallas, Texas time, on any Business Day, not later than
10:00 a.m., Dallas, Texas time, on the immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter
of Credit or any other Loan Paper, or any term or provision
therein;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of any Letter of
Credit or this Agreement;
(iii) the existence of any claim, setoff, defense or other right
that the Borrower, any other party guaranteeing, or otherwise obligated
with, the Borrower, any Subsidiary of the Borrower or other Affiliate
thereof or any other Person may at any time have against the beneficiary
under any Letter of Credit, the Issuing Bank, the Administrative Agent or
any Lender or any other Person, whether in connection with this Agreement
or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other Person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
The foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by Applicable Law) suffered by the Borrower
that are caused by the Issuing Bank's gross negligence or wilful misconduct in
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof; it is understood that the Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of
Credit (i) the Issuing Bank's exclusive reliance on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever and (ii) any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute wilful misconduct or gross negligence of
the Issuing Bank
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the Borrower of such demand for payment and whether the Issuing Bank has
made or will make an L/C Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to any
such L/C Disbursement. The Administrative Agent shall promptly give each Lender
notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of the Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.09(f) hereof, at the rate per annum that would
apply to such amount if such amount were an ABR Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 90 days' prior written notice to the Administrative
Agent, the Lenders and the Borrower, and may be removed at any time by the
Borrower by notice to the Issuing Bank, the Administrative Agent and the
Lenders. Subject to the next succeeding paragraph, upon the acceptance of any
appointment as the Issuing Bank hereunder by a Lender that shall agree to serve
as successor Issuing Bank, such successor shall succeed to and become vested
with all the interests, rights and obligations of the retiring Issuing Bank and
the retiring Issuing Bank shall be discharged from its obligations to issue
additional Letters of Credit hereunder. At the time such removal or resignation
shall become effective, the Borrower shall pay all accrued and unpaid fees
pursuant to Section 2.06(c) hereof. The acceptance of any appointment as the
Issuing Bank hereunder by a successor Lender shall be evidenced by an agreement
entered into by such successor, in a form satisfactory to the Borrower and the
Administrative Agent, and, from and after the effective date of such agreement,
(i) such successor Lender shall have all the rights and obligations of the
previous Issuing Bank under this Agreement and (ii) references herein to the
term Issuing Bank, shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the resignation or removal of the Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders holding participations in outstanding Letters of
Credit representing greater than 50% of the aggregate undrawn amount of all
outstanding Letters of Credit thereof and of the amount to be deposited, deposit
in an account with the Administrative Agent, for the benefit of the Lenders, an
amount in cash equal to the L/C Exposure as of such date. Such deposit shall be
held by the Administrative Agent as collateral for the payment and performance
of the obligations of the Borrower under this Agreement. The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account and, if so requested by the Borrower, shall
invest the deposits therein in Permitted Investments. Other than any interest
earned on the investment of such deposits in Permitted Investments, which
investments shall be made at the option and sole discretion of the
Administrative Agent, such deposits shall not bear interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account
shall (i) automatically be applied by the Administrative Agent to reimburse the
Issuing Bank for L/C Disbursements for which it has not been reimbursed, (ii) be
held for the satisfaction of the reimbursement obligations of the Borrower for
the L/C Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit), be applied to satisfy
other obligations of the Borrower under this Agreement.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the
Issuing Bank and each of the Lenders that:
Organization; Powers. The Borrower and each of its Subsidiaries (a) is a
corporation duly organized, validly existing and in good standing under the Laws
of the jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to result in a Material Adverse Effect, and (d) has the corporate power
and authority to execute, deliver and perform its obligations under this
Agreement, the other Loan Papers and each other agreement or instrument
contemplated thereby to which it is or will be a party and to borrow hereunder.
Authorization. The execution, delivery and performance by the Borrower of
this Agreement, the promissory notes, the execution of the guaranties by the
Guarantors, the execution of all other Loan Papers by the Obligors and the
borrowings hereunder (collectively, the "Transactions") (a) have been duly
authorized by all requisite corporate and, if required, stockholder action and
(b) will not (i) violate (A) any provision of Law, statute, rule or regulation,
or of the certificate or articles of incorporation or other constitutive
documents or by-laws of the Borrower or any Subsidiary of the Borrower, (B) any
order of any Governmental Authority or (C) any provision of any indenture,
material agreement or other material instrument to which the Borrower or any
Subsidiary of the Borrower is a party or by which any of them or any of their
property is or may be bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under, or
give rise to any right to accelerate or to require the prepayment, repurchase or
redemption of any obligation under any such indenture, agreement or other
instrument or (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by the
Borrower or any Subsidiary of the Borrower.
Enforceability. This Agreement has been duly executed and delivered by the
Borrower and constitutes a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms. All other Loan
Papers have been duly executed and delivered by the Borrower and the Obligors
and each constitutes a legal, valid and binding obligation of the Borrower and
the Obligors, as appropriate, enforceable against the Borrower and the Obligors,
as appropriate, in accordance with its terms.
Governmental Approvals. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be
required in connection with the Transactions, except for such as have been made
or obtained and are in full force and effect.
Financial Statements. OCV has heretofore furnished to the Lenders its
balance sheets and statements of income and equity and cash flow (a) as of and
for the fiscal year ended December 31, 1995, audited by and accompanied by the
opinion of Deloitte & Touche, LLP, independent public accountants, and (b) as of
and for the fiscal quarter and the portion of the fiscal year ended June 30,
1996. Such financial statements present fairly the financial condition and
results of operations and cash flows of OCV as of such dates and for such
periods. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of such entities as of the dates thereof.
Such financial statements were prepared in accordance with GAAP applied on a
consistent basis. The Pro Forma Financial Statements were prepared in good faith
and management believes them to be based on reasonable assumptions and to fairly
present the pro forma financial condition and results of operations of the
Borrower and its Subsidiaries consistent with the rules and regulations of the
Securities and Exchange Commission.
No Material Adverse Change. There has been no material adverse change in
the business, assets, operations, financial condition, or material agreements of
the Borrower and its Subsidiaries, taken as a whole, since June 30, 1996.
Title to Properties; Possession Under Leases.sion Under Leases
(a) Each of the Borrower and its Subsidiaries has good and marketable
title to, or valid leasehold interests in, all its material properties and
assets, except for minor defects in title that do not interfere with its ability
to conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes. All such material properties and assets are
free and clear of Liens, other than Liens expressly permitted by Section 6.02
hereof.
(b) Each of the Borrower and its Subsidiaries has complied with all
material obligations under all material leases to which it is a party and all
such leases are in full force and effect. Each of the Borrower and its
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) Each of the Borrower and its Subsidiaries owns or possesses, or could
obtain ownership or possession of, on terms not materially adverse to it, all
patents, trademarks, service marks, trade names, copyrights, licenses and rights
with respect thereto necessary for the present conduct of its business, without
any known conflict with the rights of others, and free from any burdensome
restrictions, except where such conflicts and restrictions could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Subsidiaries. Schedule 3.08 hereto sets forth as of the date hereof a list
of all Subsidiaries of the Borrower and the percentage ownership interest of the
Borrower therein. As of the date hereof, the shares of Capital Stock or other
ownership interests so indicated on Schedule 3.08 are fully paid and
non-assessable and are owned by the Borrower, directly or indirectly, free and
clear of all Liens.
Litigation; Compliance with Laws.pliance with Laws
(a) Except as set forth on Schedule 3.09 hereof, there are not any
actions, suits or proceedings at Law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any Subsidiary of the Borrower
or any business, property or rights of any such Person (i) that involve this
Agreement or the Transactions or (ii) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(b) None of the Borrower or any of its Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any Law, or is in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority, where such violation
or default could reasonably be expected to result in a Material Adverse Effect.
Agreements.0. Agreements
(a) Neither the Borrower nor any of its Subsidiaries is a party to any
agreement or subject to any corporate restriction that, since December 31, 1995,
has resulted or could reasonably be expected to result in a Material Adverse
Effect, except as disclosed on Schedule 3.10 hereof.
(b) Neither the Borrower nor any of its Subsidiaries is in default in any
manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default could reasonably be expected to result in a Material
Adverse Effect.
Federal Reserve Regulations.serve Regulations
(a) Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation G, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding
CompanInvestment Company Act; Public Utility Holding Company Act. Neither the
Borrower nor any Subsidiary of the Borrower is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
Use of Proceeds. The Borrower will use the proceeds of the Loans and will
request the issuance of Letters of Credit only for the purposes specified in the
preamble to this Agreement.
Tax Returns. Each of the Borrower and its Subsidiaries has filed or caused
to be filed all Federal, state, and material local and foreign tax returns or
materials required to have been filed by it and has paid or caused to be paid
all taxes due and payable by it and all assessments received by it, except (a)
taxes that are being contested in good faith by appropriate proceedings and for
which the Borrower or such Subsidiary, as applicable, shall have set aside on
its books adequate reserves, and (b) taxes owed by Spectradyne or its
Subsidiaries, as described on Schedule 3.14 hereto.
No Material Misstatements. None of (a) the S-4 Registration Statement (at
the time it is declared effective under the Securities Act of 1933), or (b) any
other written information, report, financial statement, exhibit or schedule
prepared by the Borrower and furnished to the Administrative Agent or any Lender
in connection with the negotiation of this Agreement and the other Loan Papers
or in connection with any of the Corporate Restructuring transactions, or
included herein or delivered pursuant hereto contained (in the case of
subsection (a)) and contained, contains or will contain (in the case of
subsection (b)) when furnished any material misstatement of fact or omitted,
omits or will omit when furnished to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were,
are or will be made, not misleading.
Employee Benefit Plans. Each of the Borrower and its ERISA Affiliates is
in compliance in all material respects with the applicable provisions of ERISA
and the Code and the regulations and published interpretations thereunder. No
ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events, could reasonably be expected to
result in liability of the Borrower or any Subsidiary of the Borrower which
would be material to the Borrower and its Subsidiaries on a consolidated basis.
Solvency..17. Solvency
(a) Immediately after the consummation of the Transactions and the other
transactions to occur on the Closing Date and immediately following the making
of each Loan made and the issuance of each Letter of Credit issued and after
giving effect to the application of the proceeds thereof, (i) the fair value of
the assets of the Borrower and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, direct, subordinated,
contingent or otherwise, of the Borrower and its Subsidiaries on a consolidated
basis; (ii) the present fair saleable value of the property of the Borrower and
its Subsidiaries on a consolidated basis will be greater than the amount that
will be required to pay the probable liability of the Borrower and its
Subsidiaries on a consolidated basis on their debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) the Borrower and its Subsidiaries
on a consolidated basis will be able to pay their debts and liabilities, direct,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) the Borrower and its Subsidiaries on a
consolidated basis will not have unreasonably small capital with which to
conduct the businesses in which they are engaged as such businesses are now
conducted and are proposed to be conducted following the Closing Date.
(b) The Borrower does not intend to, and does not believe that it or any
Subsidiary of the Borrower will, incur debts beyond its ability to pay such
debts as they mature, taking into account the timing and amounts of cash to be
received by it or any such Subsidiary and the timing and amounts of cash to be
payable on or in respect of its Indebtedness or the Indebtedness of any such
Subsidiary.
Insurance. Schedule 3.18 hereto sets forth a true, complete and correct
description of all insurance maintained by or for the Borrower or for or by its
Subsidiaries as of the date hereof and the Closing Date. As of each such date,
such insurance is in full force and effect and all premiums have been duly paid.
The Borrower and its Subsidiaries have insurance in such amounts and covering
such risks and liabilities as are in accordance with normal industry practice.
Labor Matters. As of the date hereof and the Closing Date, there are no
strikes, lockouts or slowdowns against the Borrower or any of its Subsidiary
pending or, to the knowledge of the Borrower, threatened which could reasonably
be expected to have a Material Adverse Effect. The hours worked by and payments
made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign Law dealing with such matters. All payments due from the
Borrower or any Subsidiary of the Borrower, or for which any claim may be made
against the Borrower or any Subsidiary of the Borrower, on account of wages and
employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of the Borrower or such Subsidiary. The
consummation of the Transactions to be consummated on or prior to the Closing
Date will not give rise to any right of termination or right of renegotiation on
the part of any union under any collective bargaining agreement to which the
Borrower or any Subsidiary of the Borrower is bound.
Environmental Matters. Except as set forth in Schedule 3.20:
(a) The properties owned, operated or leased by the Borrower and its
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
or (ii) could reasonably be expected to give rise to liability under,
Environmental Laws, which violations and liabilities, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
(b) All Environmental Permits have been obtained and are in effect with
respect to the Properties and operations of the Borrower and its Subsidiaries,
and the Properties and all operations of the Borrower and its Subsidiaries are
in compliance, and in the last two years have been in compliance, with all
Environmental Laws and all necessary Environmental Permits, except to the extent
that such non-compliance or failure to obtain any necessary permits, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect;
(c) Neither the Borrower nor any of its Subsidiaries has received any
notice of an Environmental Claim in connection with the Properties or the
operations of the Borrower or its Subsidiaries or with regard to any Person
whose liabilities for environmental matters the Borrower or any of its
Subsidiaries has retained or assumed, in whole or in part, contractually, which,
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect, nor do the Borrower or any of its Subsidiaries have knowledge that any
such notice will be received or is being threatened;
(d) Hazardous Materials have not been transported from the Properties, nor
have Hazardous Materials been generated, treated, stored or disposed of at, on
or under any of the Properties in a manner that could reasonably be expected to
give rise to liability under any Environmental Law, nor have the Borrower or its
Subsidiaries retained or assumed any liability contractually, with respect to
the generation, treatment, storage or disposal of Hazardous Materials, which
transportation, generation, treatment, storage or disposal, or retained or
assumed liabilities, in the aggregate, could reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.21. Acquisition of Spectradyne; Merger of OCV.
(a) Acquisition; Bankruptcy Proceedings. An order has been entered
confirming the Reorganization Plan and the time for reconsideration, rehearing
or new trial and the time to appeal or to seek a petition for review or
certiorari has expired and no post-trial motion, appeal or request for review is
pending. All notices to creditors pursuant to Debtor Relief Laws relating to the
solicitation of votes and confirmation of a plan of reorganization have been
made within the time required by Debtor Relief Laws. The Acquisition has been
consummated in accordance with the terms of the Acquisition Agreement. The
Capital Stock of Spectradyne and all of the assets of Spectradyne are wholly
owned by the Borrower, free and clear of any Liens on the terms set forth in the
Acquisition Agreement and in the Reorganization Plan.
(b) Merger. No condition to closing of either the Merger or the
Acquisition has been waived by the Borrower. The Merger has been consummated in
accordance with the terms of the Merger Agreement. On the Closing Date, there
are no shareholders who have effectively exercised their appraisal rights with
respect to the Capital Stock of OCV. After the Closing Date, there are no
shareholders who have effectively exercised, or continue to have the right to
effectively exercise, their appraisal rights with respect to the Capital Stock
of OCV, the result of which exercise could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.22. Survival of Representations and Warranties, etc. Survival of
Representations and Warranties, etc. All representations and warranties made
under this Agreement and the other Loan Papers shall be deemed to be made at and
as of the Closing Date and at and as of the date of each Borrowing under either
of the Revolving Loans, and each shall be true and correct when made, except to
the extent (a) previously fulfilled in accordance with the terms hereof, (b)
subsequently inapplicable, or (c) previously waived in writing by the
Administrative Agent and Lenders with respect to any particular factual
circumstance. The representations and warranties made under this Agreement and
the other Loan Papers shall be deemed applicable to each Subsidiary of the
Borrower as of the formation or acquisition of such Subsidiary and at and as of
each date the representations and warranties are remade pursuant to this
provision. All representations and warranties made under this Agreement and the
other Loan Papers shall survive, and not be waived by, the execution hereof by
the Administrative Agent and Lenders, any investigation or inquiry by the
Administrative Agent or any Lender, or by the making of any Loan under this
Agreement and the other Loan Papers.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
All Credit Events. On the date of each Borrowing, and on the date of each
issuance of a Letter of Credit (each such event being called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 or 2.04 hereof, as applicable (or such
notice shall have been deemed given in accordance with Section 2.04 hereof), or,
in the case of the issuance of a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a duly completed Application and a
notice requesting the issuance of such Letter of Credit, required by Section
2.21(b) hereof.
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of such
Credit Event with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date, and there shall have occurred no event which caused a Material Adverse
Effect.
(c) The Borrower and each of its Subsidiaries shall be in compliance in
all material respects with the terms and provisions set forth herein on its part
to be observed or performed, and at the time of and immediately after such
Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself, the
Lenders and the Issuing Bank, a favorable written opinion of (i) the General
Counsel of the Borrower and its Subsidiaries and (ii) Latham & Watkins, in
connection with the Transactions and the Corporate Restructuring, in each case
(y) dated the Closing Date, and (z) covering such other matters relating to this
Agreement, the Transactions and the Corporate Restructuring as the
Administrative Agent shall reasonably request in form reasonably acceptable to
the Administrative Agent and its counsel, and the Borrower hereby requests and
instructs such counsel to deliver such opinions. The opinions shall be addressed
to the Issuing Bank, the Administrative Agent and the Lenders. The
Administrative Agent shall have also received copies of (i) all opinions
delivered by each counsel to the Borrower and each of its Affiliates in
connection with the Corporate Restructuring, and (ii) all opinions addressed to
the Borrower or any of its Affiliates from counsel to any party in connection
with the Corporate Restructuring, in each case, with reliance letters
authorizing the Administrative Agent and the Lenders to rely on such opinions.
(b) All legal matters incident to this Agreement, the Borrowings, the
Corporate Restructuring, the Transaction and extensions of credit hereunder
shall be reasonably satisfactory to the Lenders, to the Issuing Bank and to the
Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
the Borrower and each of its Subsidiaries, except foreign organized
Subsidiaries, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of the
Borrower and each of its Subsidiaries as of a recent date, from such Secretary
of State; (ii) a certificate of the Secretary or Assistant Secretary of the
Borrower and each of its Subsidiaries, except foreign organized Subsidiaries,
dated the Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Borrower and each of its Subsidiaries as in
effect on the Closing Date and at all times since a date prior to the date of
the resolutions described in clause (B) below, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by the Board of Directors of
the Borrower and each of its Subsidiaries authorizing the execution, delivery
and performance of this Agreement and the borrowings hereunder, as applicable,
and that such resolutions have not been modified rescinded or amended and are in
full force and effect, (C) that the certificate or articles of incorporation of
the Borrower and each of its Subsidiaries have not been amended since the date
of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, (D) as to the incumbency and specimen
signature of each officer executing this Agreement or any other document
delivered in connection herewith on behalf of the Borrower and each of its
Subsidiaries, (E) that attached thereto is a true and complete copy of the
Acquisition Agreement, the Merger Agreement, the EDS Agreement and the
Reorganization Plan, each as in effect on the Closing Date, and (F) that
attached thereto is a true and complete copy of each of the Ascent Agreements as
in effect on the Closing Date; (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above; and (iv) such other documents
as the Lenders, the Issuing Bank or Donohoe, Jameson & Carroll, P.C., counsel
for the Administrative Agent, may reasonably request.
(d) The Lenders shall have received a duly completed Compliance
Certificate dated the Closing Date and executed by a Financial Officer of the
Borrower, confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01 hereof, with paragraphs (f), (g), (i),
(j) and (k) of this Section 4.02, and demonstrating compliance by the Borrower
with the provisions of Sections 6.09 and 6.10 hereof, and certifying to the fact
that there exists no Default or Event of Default under the terms of this
Agreement, and consummating the Agreement and making the initial Loans hereunder
would not cause a Default or Event of Default.
(e) Each Lender and the Administrative Agent shall have received payment
in full of all Fees and other amounts due and payable on or prior to the Closing
Date, including reimbursement or payment of all reasonable out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder.
(f) The Borrower shall have delivered duly executed and completed copies
to each of the Lenders of each of the following documents and agreements, in
form and substance satisfactory to each Lender: this Agreement, applicable Fee
Letters and guaranties of the Obligations executed by all Guarantors. The
Borrower shall have delivered a promissory note to each Lender, in form and
substance satisfactory to each such Lender, and any other Loan Paper reasonably
required by any Lender in connection with this Agreement.
(g) An order has been entered confirming the Reorganization Plan, and the
time for reconsideration, rehearing or new trial and the time to appeal or to
seek a petition for review or certiorari has expired and no post-trial motion or
request for review is pending. All notices to creditors required under Debtor
Relief Laws in order to confirm such Plan have been made within the time
required by Debtor Relief Laws. No condition to closing of either the Merger or
the Acquisition has been waived by the Borrower. The Acquisition has been
consummated (or will be consummated on the Closing Date) in accordance with the
terms of the Acquisition Agreement and the Merger has been consummated (or will
be consummated simultaneous with this Transaction) in accordance with the terms
of the Merger Agreement. The Capital Stock of Spectradyne and all of the assets
of Spectradyne are wholly owned by the Borrower (or will be wholly owned by the
Borrower on the Closing Date) free and clear of any Liens in accordance with the
terms of the Acquisition Agreement and the Reorganization Plan. There are no
shareholders who have effectively exercised, or continue to have the right to
effectively exercise, their appraisal rights with respect to the Capital Stock
of OCV.
(h) Except with respect to certain FCC licenses of Spectradyne described
on Schedule 4.02(h) hereto, all governmental and third party approvals necessary
or advisable in connection with the Corporate Restructuring, the Transactions,
and the continuing operations of the Borrower and its Subsidiaries shall have
been obtained and be in full force and effect, and all applicable waiting
periods shall have expired without any action being taken or threatened by any
Governmental Authority which would restrain, prevent or otherwise impose adverse
conditions on the Corporate Restructuring or the Transactions.
(i) There shall not have occurred any material change in the
capitalization (whether in debt or in equity), corporate structure or assets of
the Borrower or any of its Subsidiaries from that set forth in the S-4
Registration Statement.
(j) No action, suit, litigation or similar proceeding by or before any
Governmental Authority shall exist or, in the case of litigation by a
Governmental Authority, be threatened, with respect to the Corporate
Restructuring or the Transactions contemplated thereby or otherwise, which would
be likely in the reasonable opinion of the Required Lenders to have a Material
Adverse Effect.
(k) The structure and documentation of the Corporate Restructuring and the
Transactions contemplated thereby, and all corporate and other proceedings taken
or to be taken and all documents incidental thereto, shall be reasonably
satisfactory in form and substance to the Administrative Agent and Donohoe,
Jameson & Carroll, P.C., counsel for the Administrative Agent, and each Lender
shall have received copies of all such documents as such Lender, acting through
the Administrative Agent, may reasonably request. All transactions necessary to
consummate the Corporate Restructuring shall have been completed in accordance
with the terms and conditions of the Merger Agreement, the Acquisition Agreement
and the Reorganization Plan.
(l) The Lenders shall have received a certification from the chief
financial officer of the Borrower, in form and substance reasonably satisfactory
to the Lenders, as to the solvency of the Borrower and its Subsidiaries on a
consolidated basis after giving effect to the Corporate Restructuring and the
consummation of the other transactions contemplated hereby.
(m) The Ascent Loan Facility shall have closed, or shall close
simultaneously with, this Transaction.
SECTION 4.03. Increase of Long Term Commitment. The Long
Term Commitment may only be increased if each of the following
conditions has been satisfied:
(a) The Borrower and each of its Subsidiaries, and the Guarantors, shall
have satisfied each condition in Section 4.01 hereof, and there shall exist no
Default or Event of Default on the date the Borrower requests such advance, and
both immediately before and after such increase.
(b) The Borrower shall give not less than five Business Day's notice of a
requested increase in the Long Term Commitment specifying (i) that such notice
is for an increase in the Long Term Commitment (with a corresponding decrease in
the Short Term Commitment) in accordance with the terms of Section 2.01(b)
hereof and this Section 4.03, (ii) the date that such proposed increase is to be
effective and (iii) the amount of such increase in the Long Term Commitment
(which such amount must be in excess of $5,000,000 and in integral multiples of
$5,000,000 in excess thereof and otherwise comply with subsection (c) below).
(c) The sum of (i) the aggregate outstanding Revolving Loans plus (ii) the
aggregate amount of outstanding Competitive Loans shall never exceed
$125,000,000 (as such $125,000,000 amount is reduced by each reduction in the
Commitments and Total Commitment in accordance with Section 2.10 hereof).
(d) Every increase in the Long Term Commitment shall reduce the Short Term
Commitment immediately and automatically in the amount of each such increase. No
increase in the Long Term Commitment may be made if such increase would, upon
reduction of the Short Term Commitment in accordance with the terms of this
subsection (d), reduce the Short Term Commitment to a number less than zero.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the Obligations shall have been paid in full and all Letters of Credit have
been canceled or have expired and all amounts drawn thereunder have been
reimbursed in full, the Borrower will, and will cause each of its Subsidiaries
to:
Existence; Businesses and Properties.es and Properties
(a) Do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence, except as otherwise expressly
permitted under Section 6.05 hereof.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; comply in all material respects with
all applicable Laws, rules, regulations and decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted; and at all
times maintain and preserve all property material to the conduct of such
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times.
Insurance. Keep its insurable properties insured in accordance with
industry standards at all times by financially sound and reputable insurers;
maintain such other insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is customary with
companies in the same or similar businesses operating in the same or similar
locations, including public liability insurance against claims for personal
injury or death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by it; and maintain
such other insurance as may be required by Law.
Obligations and Taxes. Pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise that, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such payment and
discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall have
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and such contest operates to suspend collection of the contested
obligation, tax, assessment or charge and enforcement of a Lien, and with
respect to those matters listed on Schedule 3.14 hereto.
Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 105 days after the end of each fiscal year, its consolidated
and consolidating balance sheet and related consolidated and consolidating
statements of income and cash flow, showing the financial condition of the
Borrower and its consolidated Subsidiaries as of the close of such fiscal year
and the results of their operations during such year, and a comparison of such
financial position and results of operations as of the corresponding date and
for the previous fiscal year, all audited (in the case of the consolidated
financial statements) by Deloitte & Touche, LLP or other independent public
accountants of recognized national standing acceptable to the Required Lenders
and accompanied by an opinion of such accountants (which shall not be qualified
in any material respect) to the effect that such consolidated financial
statements fairly present the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheet and related
consolidated statements of earnings and cash flow showing the financial
condition of the Borrower and its consolidated Subsidiaries as of the close of
such fiscal quarter and the results of their operations during such fiscal
quarter and the then elapsed portion of the fiscal year, and a comparison of
such financial position and results of operations as of the corresponding date
and for the corresponding periods in the previous fiscal year, all certified by
one of its Financial Officers as fairly presenting the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustment;
(c) (i) concurrently with any delivery of financial statements under
sub-paragraph (a) above, a certificate of the accounting firm opining on or
certifying such statements (which certificate may be limited to accounting
matters and disclaim responsibility for legal interpretations) certifying that
no Event of Default has occurred in Sections 6.01, 6.02(h), 6.03, 6.04, 6.05,
6.06, 6.09 and 6.10 hereof; and (ii) concurrently with any delivery of financial
statements under sub-paragraph (a) or (b) above, a Compliance Certificate of a
Financial Officer of the Borrower certifying that no Event of Default or Default
has occurred or, if such an Event of Default or Default has occurred, specifying
the nature and extent thereof and any corrective action taken or proposed to be
taken with respect thereto and setting forth computations demonstrating
compliance with the covenants contained in Sections 6.01, 6.03, 6.04, 6.06, 6.09
and 6.10 hereof;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements, registration statements (other
than on Form S-8) and other similar materials filed by the Borrower or any
Subsidiary of the Borrower with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the function of said
Commission, or with any national securities exchange, or distributed generally
to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Subsidiary of the Borrower, or compliance with the terms of this Agreement and
the other Loan Papers, as the Administrative Agent or any Lender may reasonably
request.
Litigation and Other Notices. Furnish to the Administrative
Agent, the Issuing Bank and each Lender prompt written notice of the
following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken with
respect thereto;
(b) the (i) filing or commencement of, or any written threat or notice of
intention of any Person to file or commence, any action, suit or proceeding,
whether at Law or in equity or by or before any Governmental Authority, or (ii)
the making of any written claim, in either case against the Borrower or any
Affiliate thereof as to which there is a reasonable possibility of an adverse
determination and which if adversely determined, could reasonably be expected to
result in a Material Adverse Effect; and
(c) any development (including developments in pending litigation and
developments in pending or threatened labor disruption) that has resulted in, or
could reasonably be expected to result in, a Material Adverse Effect.
Employee Benefits. (a) Comply in all material respects with the applicable
provisions of ERISA and the Code and (b) furnish to the Administrative Agent (i)
as soon as possible after, and in any event within 10 days after any Responsible
Officer of the Borrower or any ERISA Affiliate knows or has reason to know that,
any ERISA Event has occurred that, alone or together with any other ERISA Event
could reasonably be expected to result in liability of the Borrower in an
aggregate amount exceeding $55,000,000, a statement of a Financial Officer of
the Borrower setting forth details as to such ERISA Event and the action, if
any, that the Borrower proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
InspecMaintaining Records; Access to Properties and Inspections. Keep proper
books of record and account in which full, true and correct entries in
conformity with GAAP and all requirements of Law are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior written notice, to
visit and inspect the financial records and the properties of the Borrower or
any Subsidiary of the Borrower at reasonable times and as often as reasonably
requested and to make extracts from and copies of such financial records, and
permit any representatives designated by the Administrative Agent or any Lender
to discuss the affairs, finances and condition of the Borrower or any Subsidiary
of the Borrower with the officers thereof and (with the concurrence of the
Administrative Agent) independent accountants therefor (provided that the
Borrower has the right to have a representative present for any meeting with the
Borrower's independent accountants).
Use of Proceeds. Use the proceeds of the Loans and request the issuance of
Letters of Credit only for the purposes set forth in the preamble to this
Agreement.
Compliance with Environmental Laws.nvironmental Laws
(a) Comply, and exercise best efforts to cause all lessees and other
Persons occupying its Properties to comply, in all material respects with all
Environmental Laws and Environmental Permits applicable to its operations and
Properties; and obtain and renew all material Environmental Permits necessary
for its operations and Properties; and conduct any Remedial Action to the extent
required by and in accordance with Environmental Laws; provided, however, that
none of the Borrower or any of its Subsidiaries shall be required to undertake
any Remedial Action to the extent that its obligation to do so is being
contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances.
(b) If a Default caused by reason of a breach of paragraph (a) above or
Section 3.20 hereof shall have occurred and be continuing, at the request of the
Required Lenders through the Administrative Agent, provide to the Lenders within
45 days after such request, at the expense of the Borrower, a "Phase 1"
environmental site assessment report for the Properties which are the subject of
such default prepared by an environmental consulting firm acceptable to the
Administrative Agent and indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance or Remedial Action in
connection with such Properties.
Compliance with Material Contracts. Except as set forth in Section 6.07
hereof, maintain in full force and effect (including exercising any available
renewal option), and without amendment or modification, each material contract,
unless the failure so to maintain any such material contract or replacement
contract or contracts thereof (or any amendment or modification thereto) could
not, individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the Obligations have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been reimbursed
in full:
SECTION 6.01. Indebtedness of the Subsidiaries of the BorrowIndebtedness
of the Subsidiaries of the Borrower. The Borrower will not cause or permit any
of its Subsidiaries to, issue any Preferred Stock, or to issue, incur, create,
assume or permit to exist any Indebtedness, except:
(a) Indebtedness of any Subsidiary of the Borrower for borrowed money
existing on the date hereof and set forth in Schedule 6.01 hereto, but not any
extensions, renewals or replacements of such Indebtedness; and
(b) Indebtedness of any Subsidiary of the Borrower owed to the Borrower or
to a Wholly Owned Subsidiary of the Borrower that does not otherwise violate any
provision of this Agreement or any other Loan Paper.
Liens. The Borrower will not, and will not cause or permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien on any of its
property or assets (including stock or other securities of any Person, including
any Subsidiary) now owned or hereafter acquired by it or them or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
existing on the date hereof and set forth in Schedule 6.02 hereto; provided that
such Liens shall secure only those obligations which they secure on the date
hereof;
(b) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary of the Borrower; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition and (ii) such Lien does not apply to any other property or assets of
the Borrower or any Subsidiary of the Borrower;
(c) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03 hereof;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03 hereof, which, in the aggregate, are not
substantial in amount and do not materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(e) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security Laws or regulations;
(f) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course or business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use of
real property and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Borrower or any of
its Subsidiaries; and
(h) purchase money security interests in real property, equipment or other
assets hereafter acquired by the Borrower or any Subsidiary of the Borrower;
provided that (i) such security interests secure Indebtedness (including, as
applicable, Capital Lease Obligations) permitted by Section 6.01(c) hereof, (ii)
such security interests are incurred, and the Indebtedness secured thereby is
created, within 180 days after such acquisition, (iii) the Indebtedness secured
thereby does not exceed 100% of the cost of such real property, equipment or
other assets at the time of such acquisition and (iv) such security interests do
not apply to any other property or assets of the Borrower or any Subsidiary of
the Borrower.
SECTION 6.03. Sale and Lease Back Transactions; Off-Balance
Sheet Sale and Lease Back Transactions; Off-Balance Sheet Financings.
The Borrower will not, and will not cause or permit any of its
Subsidiaries to:
(a) Enter into any arrangement, directly or indirectly, with any person
whereby it shall sell or transfer any property, real or personal, used or useful
in its business, whether now owned or hereafter acquired, and thereafter rent or
lease such property or other property which it intends to use for substantially
the same purpose or purposes as the property being sold or transferred;
provided, however, that the Borrower or a Subsidiary of the Borrower may enter
into (i) any operating lease, (ii) Equipment Lease Transactions permitted by
paragraph (b) of this Section and (iii) Capital Lease Obligations secured by
purchase money security interests permitted by Section 6.02(h) hereof to finance
the initial acquisition of real property, equipment or other assets.
(b) Directly or indirectly enter into or be or become liable with respect
to any Equipment Lease Transactions, other than Equipment Lease Transactions of
the Borrower and all of its Subsidiaries, which do not in the aggregate at any
time have Attributable Debt in an amount in excess of 20% of the Borrower's
Consolidated Tangible Net Worth as of the last day of the most recently ended
fiscal quarter of the Borrower.
Investments, Acquisitions, Loans and Advances. The Borrower es will not,
and will not cause or permit any of its Subsidiaries to, purchase, hold or
acquire any Capital Stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, or make any acquisition of assets of any
other Person as a going concern (each, an "Investment"), except:
(a) Investments existing on the date hereof in the Capital
Stock set forth on Schedule 6.04 hereto;
(b) Permitted Investments;
(c) Investments consisting of loans or advances to (i) a Wholly Owned
Subsidiary, provided that such loans or advances are not subordinated to any
other Indebtedness or other obligations of such Subsidiary and rank pari passu
with all senior, unsecured Indebtedness of such Subsidiary, or (ii) employees of
the Borrower or the Wholly Owned Subsidiaries, provided that such loans or
advances are made in the ordinary course of business and in accordance with
company policy, and provided further that the proceeds of such loan or advance
are used to finance employee related expenses (including relocation expenses and
travel and entertainment expenses);
(d) additional equity Investments in any Subsidiary of the Borrower which
is in existence on the date hereof provided that, immediately after giving
effect thereto, (i) the ratio of such Subsidiary's consolidated liabilities
(less borrowings by such Subsidiary allowed and outstanding under this
Agreement, deferred compensation, deferred income and allocation of income to
minority interests in earnings of consolidated subsidiaries) to such
Subsidiary's consolidated assets (determined in accordance with GAAP) shall be
less than 1.00 to 4.00 and (ii) the ratio of Consolidated Liabilities (less
borrowings allowed and outstanding under this Agreement, deferred compensation,
deferred income and allocation of income to minority interests in earnings of
consolidated subsidiaries) to Consolidated Assets shall be less than 1.00 to
4.00;
(f) Investments consisting of non-cash consideration received in
connection with a sale or disposition of assets permitted under Section 6.05
hereof; and
(g) Investments (other than Investments described in clauses (a) through
(f) above and other than equity Investments in Subsidiaries of the Borrower) to
the extent the aggregate amount thereof made in any fiscal year does not exceed
10% of the Consolidated Assets as of the last day of the immediately preceding
fiscal year.
Mergers, Consolidations and Sales of Assets. The Borrower will
not, and will not cause or permit any of its Subsidiaries to:
(a) merge into or consolidate with any Person, or permit any other Person
to merge into or consolidate with it, provided that, if there exists no Default
or Event of Default at the time thereof or immediately after giving effect
thereto (i) any Wholly Owned Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any Wholly
Owned Subsidiary may merge into or consolidate with any other Wholly Owned
Subsidiary in a transaction in which the surviving entity is a Wholly Owned
Subsidiary and no Person other than the Borrower or a Wholly Owned Subsidiary
receives any consideration; or
(b) sell, transfer, lease or otherwise dispose of (in one transaction or
in a series of transactions) all or any substantial part of its assets (whether
now owned or hereafter acquired) or any amount of Capital Stock of any
Subsidiary of the Borrower, except that (a) the Borrower and any Subsidiary of
the Borrower may sell or dispose of inventory and obsolete equipment in the
ordinary course of business, (b) if at the time thereof and immediately after
giving effect thereto no Event of Default or Default shall have occurred and be
continuing, the Borrower or any of its Subsidiaries may sell or dispose of
assets (not including Capital Stock owned by the Borrower or any Subsidiary of
the Borrower) for fair market value outside the ordinary course of business
(each an "Asset Disposition") so long as the cumulative aggregate noncash
consideration for all such Asset Dispositions after the date hereof shall not
exceed $10,000,000 in fair market value and provided that the aggregate Net Cash
Proceeds of all such Asset Dispositions are, to the extent they exceed
$25,000,000, applied in accordance with the terms of Section 2.12(c) hereof to
repay the Loans and reduce the Commitments, and (c) if at the time thereof and
immediately after giving effect thereto no Event of Default or Default shall
have occurred and be continuing, the Borrower may transfer control, through a
sale, corporate transaction or other disposition, of the hotel contracts and
related assets for its hotel customers outside of the United States.
SECTION 6.06. Dividends and Distributions; Restrictions on AbilitDividends
and Distributions; Restrictions on Ability of Subsidiaries to Pay Dividends. The
Borrower will not, and will not cause or permit any of its Subsidiaries to,
declare or pay, directly or indirectly, any dividend or make any other
distribution (by reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, with respect to any shares of its Capital
Stock or directly or indirectly redeem, purchase, retire or otherwise acquire
for value (or permit any Subsidiary of the Borrower to purchase or acquire) any
shares of any class of its Capital Stock or set aside any amount for any such
purpose; provided, however, that (a) any Subsidiary of the Borrower may declare
and pay dividends or make other distributions to another Wholly Owned Subsidiary
or to the Borrower, and (b) so long as there exists no Default or Event of
Default both before and after giving effect to such dividend, distribution or
repurchase (i) the Borrower may make redemptions or repurchases of its Capital
Stock in connection with employee stock options upon termination of such
employment, for an aggregate amount of consideration paid from and after the
date hereof of up to $10,000,000, in connection with any employee stock option
or incentive plans, (ii) the Borrower may declare and pay dividends or
distributions to its shareholders, and redeem, purchase, retire or otherwise
acquire for value any shares of any class of its Capital Stock, and (iii) any
Subsidiary of the Borrower may declare and/or pay any dividends in accordance
with the terms of the Reorganization Plan.
Transactions with Affiliates. Except in accordance with the terms of
Section 6.06 hereof, the Borrower will not, and will not cause or permit any of
its Subsidiaries to, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, or permit any Subsidiary of the Borrower to sell or transfer
any property or assets to, or purchase or acquire any property or assets from,
or otherwise engage in any other transactions with any of its Affiliates, except
that the Borrower or any Subsidiary of the Borrower may engage in any of the
foregoing transactions in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's length basis from unrelated third parties; provided,
however, that the foregoing shall not preclude the Borrower nor any Subsidiary
of the Borrower from performing and complying with its obligations under (a) the
Ascent Agreements in accordance with the terms thereof on the date hereof or, so
long as any such amendment (or extension to additional services, in the case of
the Services Agreement) does not materially adversely affect the interests of
the Administrative Agent, the Issuing Bank or the Lenders, as the same may be
hereafter amended (or extended to additional services) or (b) the transactions
necessary to consummate the Corporate Restructuring. Notwithstanding anything in
this Agreement or the other Loan Papers to the contrary, it is understood by all
parties hereto that all or any of the Ascent Agreements may be terminated by the
parties thereto at any time during the term of this Agreement.
Limitation on Restrictive Agreements. The Borrower will not, and will not
cause or permit any of its Subsidiaries to, enter into any indenture, agreement,
instrument, financing document or other arrangement which, directly or
indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon: (a) the granting of
Liens, (b) the making or granting of Guarantees, (c) the payment of dividends or
distributions, (d) the purchase, redemption or retirement of any Capital Stock,
(e) the making of loans or advances or (f) transfers or sales of property or
assets (including Capital Stock) by the Borrower or any of its Subsidiaries,
other than restrictions on the granting of Liens on, or the transfer of, assets
that are encumbered by Liens permitted under clauses (b), (h) and (i) of Section
6.02 hereof with respect to the property or assets covered by such Lien only.
Leverage Ratio. The Borrower will not permit the Leverage Ratio as of the
last day of any fiscal quarter ending during any period set forth below to be
more than the ratio set forth below for such period:
Quarter Ending Ratio Ratio
From the Closing Date to
through December 31, 1997 2.50 to 1.00
January 1, 1998 and thereafter 2.00 to
1.00
In the event that the Borrower shall complete, directly or through a
Subsidiary of the Borrower, a permitted acquisition, the Leverage Ratio shall be
determined thereafter, to the extent necessary, by computing such ratio on a pro
forma basis as if such acquisition had been completed on the first day of the
period of four consecutive fiscal quarters ending on the dates indicated above
occurring after the date of such acquisition.
Coverage Ratio. The Borrower will not permit the Coverage Ratio as of the
last day of any fiscal quarter ending during any period set forth below to be
less than 4.00 to 1.00. In the event that the Borrower shall complete, directly
or through a Subsidiary of the Borrower, a permitted acquisition, the Coverage
Ratio shall be determined thereafter, to the extent necessary, by computing such
ratio on a pro forma basis as if such acquisition had been completed on the
first day of the period of four consecutive fiscal quarters ending on the dates
indicated above occurring after the date of such acquisition.
Amendments to Organizational Documents. The Borrower will not, and will
not cause or permit any of its Subsidiaries to, enter into any amendment of any
term or provision, or accept any consent or waiver with respect to any such
provision, of its articles of incorporation, by-laws, or its organizational
documents, as applicable, in any manner that is material and adverse to the
Lenders.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) (i) any representation or warranty made or deemed made by the Borrower
or any of its Subsidiaries (except representations and warranties by or on
behalf of Spectradyne and its Subsidiaries on the Closing Date) in, or in
connection with, this Agreement or in any other Loan Paper, or in
connection with any agreement related to the Corporate Restructuring or
the borrowings or issuances of Letters of Credit hereunder, or any
representation, warranty, statement or written information contained in
any report, certificate, financial statement or other instrument prepared
by the Borrower or any Subsidiary of the Borrower (except Spectradyne and
its Subsidiaries) and furnished by the Borrower or any Subsidiary of the
Borrower (except Spectradyne and its Subsidiaries) in connection with or
pursuant to this Agreement or any other Loan Paper, or in connection with
any of the transactions contemplated to occur as of the Closing Date,
shall prove to have been false or misleading in any material respect when
so made, deemed made or furnished; or
(ii) any representation or warranty made or deemed made by or on
behalf of Spectradyne or any of its Subsidiaries on the Closing Date: in
or in connection with, this Agreement or in any other Loan Paper, or in
connection with any agreement related to the Corporate Restructuring or
the borrowings or issuances of Letters of Credit hereunder, or any
representation, warranty, statement or written information contained in
any report, certificate, financial statement or other instrument prepared
by Spectradyne or any Subsidiary of Spectradyne and furnished by the
Borrower or any Subsidiary of the Borrower in connection with or pursuant
to this Agreement or any other Loan Paper, or in connection with any of
the transactions contemplated to occur as of the Closing Date, shall prove
to have been false or misleading in any material respect when so made,
deemed made or furnished, and which could reasonably be expected to have a
Material Adverse Effect;
(b) default shall be made in the payment of any principal of any Loan or
the reimbursement of principal with respect to any L/C Disbursement when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
any Fee or L/C Disbursement or any other amount (other than an amount referred
to in (b) above) due under this Agreement or any other Loan Paper, when and as
the same shall become due and payable, and such default shall continue
unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of the Borrower of any covenant, condition or
agreement contained in Sections 5.01(a), 5.05 or 5.08 hereof or in Article VI
hereof;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of the Borrower of any covenant, condition or
agreement contained in this Agreement (other than those specified in (b), (c) or
(d) above) or in any other Loan Paper and such default shall continue unremedied
for a period of 15 days after notice thereof from the Administrative Agent or
any Lender to the Borrower;
(f) the Borrower or any Subsidiary of the Borrower shall (i) fail to pay
any principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $10,000,000, when and as the
same shall become due and payable, or (ii) fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or instrument
evidencing or governing any such Indebtedness if the effect of any failure
referred to in this clause (ii) is to cause, or to permit the holder or holders
of such indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such Indebtedness to
become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Borrower or any Subsidiary of the Borrower, or of a
substantial part of the property or assets of the Borrower or a Subsidiary of
the Borrower, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar Law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Subsidiary of the Borrower or for a substantial part of the
property or assets of the Borrower or a Subsidiary of the Borrower or (iii) the
winding-up or liquidation of the Borrower or any Subsidiary of the Borrower; and
such proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;
(h) the Borrower or any Subsidiary of the Borrower shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar Law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
(g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Subsidiary of the Borrower, or for a substantial part of the property or assets
of the Borrower or any Subsidiary of the Borrower, (iv) file an answer admitting
the material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate amount
in excess of $10,000,000 shall be rendered against the Borrower, any Subsidiary
of the Borrower or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of the Borrower or any Subsidiary of
the Borrower to enforce any such judgment;
(j) an ERISA Event shall have occurred that, when taken together with all
other such ERISA Events, could reasonably be expected to result in liability of
the Borrower, any Subsidiary of the Borrower, or any combination thereof, in an
aggregate amount exceeding $10,000,000;
(k) there shall have occurred a Change in Control;
(l) Ascent shall: (i) fail to pay any principal or interest, regardless of
amount, due in respect of the Ascent Loan Facility, when and as the same shall
become due and payable taking into account any applicable period of grace
thereunder, or (ii) fail to observe or perform any other term, covenant,
condition or agreement contained in any agreement or instrument evidencing or
governing the Ascent Loan Facility if the effect of any failure referred to in
this clause (ii) is to cause, or to permit the holder or holders of such
indebtedness or a trustee on its or their behalf (with or without the giving of
notice, the lapse of time or both) to cause, such Indebtedness to become due
prior to its stated maturity;
(m) any of the following shall occur: (i) This Agreement, any guarantee or
promissory note executed in connection with this Agreement (collectively, the
"Material Agreements"), or any material provision of any thereof shall, for any
reason, not be valid and binding on the Obligor signatory thereto, or not be in
full force and effect, or shall be declared to be null and void; or (ii) the
validity or enforceability of any Material Agreement shall be contested by any
Obligor, the Borrower, any Subsidiary of the Borrower or any of their
Affiliates; or (iii) any Obligor shall deny in writing that it has any or
further liability or obligation under its respective Material Agreements; or
(iv) any default or breach under any provision of any Material Agreement shall
continue after the applicable grace period, if any, specified in such Material
Agreement;
(n) the occurrence of either of the following two events: (i) confirmation
of the Reorganization Plan is revoked; or (ii) the Reorganization Plan is
modified after confirmation in any manner not described on Schedule 7.0 hereto
(A)without prior written notice to the Lenders or (B) in any manner material and
adverse to the interest of the Lenders (as determined by the Required Lenders in
their sole discretion) and without the prior written consent of the
Administrative Agent and the Required Lenders; or
(o) at any time that the debt limitation on the Borrower in the Corporate
Agreement with Ascent operates to limit the ability of the Borrower to make a
borrowing hereunder at a time when the Borrower needs such ability to meet
operating expenses or capital requirements in each case approved by the
Borrower's Board of Directors (as such approval may be amended), provided that,
no amendment to any such approval may be made once operating expenses or capital
requirements have been incurred or made, or to avoid a Default or an Event of
Default under this subsection (v);
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the either or both of the Short Term Commitment or the Long Term Commitment,
(ii) declare the Loans then outstanding to be forthwith due and payable in whole
or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and
all other liabilities of the Borrower accrued hereunder, shall become forthwith
due and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrower, anything
contained herein to the contrary notwithstanding or (iii) require cash
collateral as contemplated by Section 2.21(j) hereof; and in any event with
respect to the Borrower described in paragraph (g) or (h) above, all the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest hereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein to the contrary notwithstanding. Notwithstanding anything in
this Agreement or in any Loan Paper to the contrary, to the extent any Default
or Event of Default under any of subsections (a), (d) or (e) above is due
exclusively to the actions, inactions or misrepresentations with respect to any
foreign Subsidiary of the Borrower, then such event shall not be a Default or
Event of Default unless such event could also reasonably be expected to cause a
Material Adverse Effect.
ARTICLE VIII
The Administrative Agent
In order to expedite the transactions contemplated by this Agreement and
the other Loan Papers, NationsBank is hereby appointed to act as Administrative
Agent on behalf of the Lenders and the Issuing Bank. Each of the Lenders and
each assignee of any such Lender, hereby irrevocably authorizes the
Administrative Agent to take such actions on behalf of such Lender or assignee
or the Issuing Bank and to exercise such powers as are specifically delegated to
the Administrative Agent by the terms and provisions hereof, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Issuing Bank,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Issuing Bank all payments of principal of and interest on the
Loans, all payments in respect of L/C Disbursements and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender or the Issuing
Bank its proper share of each payment so received; (b) to give notice on behalf
of each of the Lenders to the Borrower of any Event of Default specified in this
Agreement and the other Loan Papers of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by the Borrower pursuant to this Agreement and the other
Loan Papers as received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants or agreements contained
herein. The Administrative Agent shall not be responsible to the Lenders for the
due execution, genuineness, validity, enforceability or effectiveness of this
Agreement, the other Loan Papers or any other instruments or agreements. The
Administrative Agent shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. The Administrative Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document believed by it in
good faith to be genuine and correct and to have been signed or sent by the
proper Person or Persons. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall have any responsibility to the
Borrower on account of the failure of or delay in performance or breach by any
Lender or the Issuing Bank of any of its obligations hereunder or to any Lender
or the Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or the issuing Bank or the Borrower of any of their
respective obligations hereunder or in connection herewith. The Administrative
Agent may execute any and all duties hereunder by or through agents or employees
and shall be entitled to rely upon the advice of legal counsel selected by it
with respect to all matters arising hereunder and shall not be liable for any
action taken or suffered in good faith by it in accordance with the advice of
such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Paper unless it
shall be requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank having a
combined capital and surplus of at least $500,000,000 or an Affiliate of any
such bank. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor bank, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.05 hereof
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative Agent
in its individual capacity and not as Administrative Agent shall have the same
rights and powers as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any Subsidiary of the Borrower or other
Affiliate thereof as if it were not Administrative Agent.
Each Lender agrees (a) to reimburse the Administrative Agent, on demand,
in the amount of its pro rata share (based on its Commitment hereunder) of any
expenses incurred for the benefit of the Lenders by the Administrative Agent,
including reasonable counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Lenders, that shall not have been
reimbursed by the Borrower and (b) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be Imposed on, incurred by or asserted against it in its capacity as the
Administrative Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Paper, or any action taken or omitted by it or
any of them under this Agreement or any other Loan Paper, to the extent the same
shall not have been reimbursed by the Borrower; provided that no Lender shall be
liable to the Administrative Agent or any such other indemnified Person for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of the Administrative Agent or any of
its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent, or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Papers. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
and the other Loan Papers, or any related agreement or any document furnished
hereunder or thereunder.
ARTICLE IX
Miscellaneous
Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at:
On Command Corporation
3301 Olcott Street
Santa Clara, CA 85054
Attn: Brian Steel
Telephone: (408) 496-1800
Telecopy No.: (408) 496-0668
With a copy to:
Ascent Entertainment Group., Inc.
One Tabor Center, Suite 2800
1200 17th Street
Denver, Colorado 80202
Attention: W. D. Minami
Telephone: (303) 626-7030
Telecopy No.: (303) 595-0823
With a copy to:
Ascent Entertainment Group, Inc.
One Tabor Center, Suite 2800
1200 17th Street
Denver, Colorado 80202
Attention: Arthur Aaron, Esq.
Telephone: (303) 626-7040
Telecopy No.: (303) 595-0127
(b) if to the Administrative Agent, to it at:
NationsBank of Texas, National Association
NationsBank Plaza
901 Main Street, 64th Floor
Dallas, Texas 75202
Telephone No.: (214) 508-0860
Telecopier No.: (214) 508-9390
Attention: Mr. Gregory I. Meador
Vice President
With a copy to:
Donohoe, Jameson & Carroll, P.C.
3400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Telephone No.: (214) 698-3814
Telecopier No.: (214) 744-0231
Attention: Melissa Ruman Stewart
(c) if to a Lender, to it at its address (or telecopy number) set forth on
the signature pages hereto or in the Assignment and Acceptance pursuant to which
such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement and the other Loan Papers shall be deemed
to have been given on the date of receipt if delivered by hand or overnight
courier service or sent by telecopy or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent
or mailed (properly addressed) to such party as provided in this Section 9.01 or
in accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.01.
Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement and the other Loan Papers shall be considered to have been relied upon
by the Lenders and the Issuing Bank and shall survive the making by the Lenders
of the Loans and the issuance of Letters of Credit by the Issuing Bank,
regardless of any investigation made by the Lenders or the Issuing Bank or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Paper is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
been terminated. The provisions of Sections 2.13. 2.15, 2.19 and 9.05 hereof
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Paper, or any
investigation made by or on behalf of the Administrative Agent, any Lender or
the Issuing Bank.
Binding Effect. This Agreement shall become effective when it shall have
been executed by the Borrower and the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
Successors and Assigns.ssors and Assigns
(a) Whenever in this Agreement or any other Loan Paper any of the parties
hereto is referred to, such reference shall be deemed to include the permitted
successors and assigns of such party, and all covenants, promises and agreements
by or on behalf of the Borrower, the Administrative Agent, the Issuing Bank or
the Lenders that are contained in this Agreement and the other Loan Papers shall
bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement and the other Loan
Papers (including all or a portion of its Commitments and the Loans at the time
owing to it); provided, however, that (i) except in the case of an assignment to
a Lender or an Affiliate of such Lender, (x) the Borrower and the Administrative
Agent (and, in the case of any assignment of a Commitment, the Issuing Bank)
must give their prior written consent to such assignment (which consent shall
not be unreasonably withheld) and (y) the amount of the Commitments of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $10,000,000 (or, if less, the
entire remaining amount of such Lender's Commitments) and will not result in the
unassigned portion, if any, of the assigning Lender's Commitments being less
than $10,000,000 (provided, however, that the $10,000,000 amounts referred to in
this clause (i) shall be reduced ratably in accordance with any reductions in
the Total Commitments) (ii) the parties to each such assignment shall execute
and deliver to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500 and (iii) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement
and the other Loan Papers and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement and the other Loan Papers (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement and the other
Loan Papers, such Lender shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 2.13, 2.15, 2.19 and 9.05 hereof, as
well as to any Fees accrued for its account and not yet paid). The Borrower
shall, at its expense, issue to the assignor and assignee new promissory notes,
as applicable, in the respective amounts of each such Lender's Pro Rata
Percentage in the Loans, each in the form of the promissory notes delivered by
the Borrower on the Closing Date.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitments, and the outstanding balances of its Revolving Loans and
Competitive Loans, in each case without giving effect to assignments thereof
which have nor become effective, are as set forth in such Assignment and
Acceptance; (ii) except as set forth in (i) above, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Paper, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Paper, or any other instrument or document furnished pursuant hereto, or
the financial condition of the Borrower or any Subsidiary of the Borrower or the
performance or observance by the Borrower or any Subsidiary of the Borrower of
any of its obligations under this Agreement or any other Loan Paper or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05 or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Papers; (vi) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Loan Papers as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement and the other Loan Papers are required to be performed by it as a
Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at its offices in Dallas, Texas a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive and
the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement and the other
Loan Papers, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Issuing
Bank and the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders and the Issuing Bank. No assignment shall be effective unless it has
been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Issuing Bank
or the Administrative Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
and the other Loan Papers (including all or a portion of its Commitments and the
Loans owing to it); provided, however, that (i) such Lender's obligations under
this Agreement and the other Loan Papers shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other entities
shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.13, 2.15 and 2.19 hereof to the same extent as if they were Lenders
and (iv) the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Papers, and such Lender shall retain the sole right to enforce
the obligations of the Borrower relating to the Loans or L/C Disbursements and
to approve any amendment, modification or waiver of any provision of this
Agreement and the other Loan Papers (other than amendments, modifications or
waivers decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans or
increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04. disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16 hereof.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement and the other Loan Papers to a Federal Reserve Bank to
secure extensions of credit by such Federal Reserve Bank to such Lender;
provided that no such assignment shall release a Lender from any of its
obligations hereunder or substitute any such Bank for such Lender as a party
hereto. In order to facilitate such an assignment to a Federal Reserve Bank, the
Borrower shall, at the request of the assigning Lender, duly execute and deliver
to the assigning Lender a promissory note or notes evidencing the Loans made to
the Borrower by the assigning Lender hereunder.
(i) The Borrower shall not assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent, the
Issuing Bank and each Lender, and any attempted assignment without such consent
shall be null and void.
(j) In the event that Standard & Poor's Ratings Group, a Division of
McGraw-Hill, Inc., Moody's Investors Service, Inc., and Thompson's BankWatch (or
Insurance Watch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not rated
by Insurance Watch Ratings Service)) shall, after the date that any Lender
becomes a Lender, downgrade the longterm certificate deposit ratings of such
Lender, and the resulting ratings shall be below BBB-, Baa3 and C (or BB, in the
case of a Lender that is an insurance company (or B, in the case of an insurance
company not rated by Insurance Watch Ratings Service)), then the Issuing Bank
shall have the right, but not the obligation, at its own expense, upon notice to
such Lender and the Administrative Agent, to replace (or to request the Borrower
to use its reasonable efforts to replace) such Lender with an assignee (in
accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in paragraph (b)
above) all its interests, rights and obligations in respect of its Commitments
to such assignee; provided, however, that (i) no such assignment shall conflict
with any Law, rule and regulation or order of any Governmental Authority and
(ii) the Issuing Bank or such assignee, as the case may be, shall pay to such
Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
Expenses; Indemnity.penses; Indemnity
(a) The Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent and the Issuing Bank in connection with the
syndication of the credit facilities provided for herein and the preparation and
administration of this Agreement and the other Loan Papers or in connection with
any amendments, modifications or waivers of the provisions hereof (whether or
not the transactions hereby or thereby contemplated shall be consummated) or
incurred by the Administrative Agent or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Papers, or in connection with the Loans made or Letters of Credit
issued hereunder, including the reasonable fees, charges and disbursements of
Donohoe, Jameson & Carroll, P.C., counsel for the Administrative Agent, and, in
connection with any such enforcement or protection, the fees, charges and
disbursements of any other counsel for the Administrative Agent or any Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, each Lender
and the Issuing Bank, each Affiliate of any of the foregoing Persons and each of
their respective directors, officers, employees and agents (each such Person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement and the other Loan
Papers or any agreement or instrument contemplated thereby, the performance by
the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or issuance of Lenders of
Credit, (iii) the Corporate Restructuring or any transactions connected
therewith or (iv) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether or not any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of, or
breach of contract by, such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
other Loan Papers, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement, any other Loan Paper, or any investigation made by
or on behalf of the Administrative Agent, any Lender or the Issuing Bank. All
amounts due under this Section 9.05 shall be payable on written demand therefor.
Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time,
to the fullest extent permitted by Law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement and the other Loan
Papers held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section 9.06 are in addition to
other rights and remedies (including other rights of setoff) which such Lender
may have.
Applicable Law. THIS AGREEMENT AND THE OTHER LOAN PAPERS SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(EXCEPT, IN THE CASE OF CERTAIN OF THE LOAN PAPERS, TO THE EXTENT THE LAWS OF
ANOTHER JURISDICTION GOVERN THE PERFECTION AND EFFECT OF PERFECTION OR
NON-PERFECTION OF CERTAIN LIENS). EACH LETTER OF CREDIT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OR RULES DESIGNATED IN SUCH
LETTER OF CREDIT OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS
AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF TEXAS.
Waivers; Amendment.aivers; Amendment
(a) No failure or delay of the Administrative Agent, any Lender or the
Issuing Bank in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent, the
Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or any other Loan Paper, or consent to any departure
by the Borrower therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Borrower in any case shall entitle the Borrower to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof or in any other Loan
Paper may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders;
provided, however, that no such agreement shall (i) decrease the principal
amount of, or extend the maturity of or any scheduled principal payment date or
date for the payment of any interest on any Loan or any date for reimbursement
of an L/C Disbursement, or waive or excuse any such payment or any part thereof,
or decrease the rate of interest on any Loan or L/C Disbursement, without the
prior written consent of each Lender affected thereby (ii) change or extend the
Commitments or decrease the Commitment Fees or the Facility Fees of any Lender
without the prior written consent of such Lender, or (iii) amend or modify the
provisions of Sections 2.16 or 9.04(i) hereof, the provisions of this Section or
the definition of the term "Required Lenders", without the prior written consent
of each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the Issuing
Bank hereunder without the prior written consent of the Administrative Agent or
the Issuing Bank.
Interest Rate Limitation. It is not the intention of any party to any Loan
Papers to make an agreement violative of the Laws of any applicable jurisdiction
relating to usury. In no event shall the Borrower or any other Person be
obligated to pay any amount in excess of the Maximum Amount. If Administrative
Agent or any Lender ever receives, collects or applies, as interest, any such
excess, such amount which would be excessive interest shall be deemed a partial
repayment of principal and treated hereunder as such; and if principal is paid
in full, any remaining excess shall be paid to the Borrower or the other Person
entitled thereto. In determining whether or not the interest paid or payable,
under any specific contingency, exceeds the Maximum Amount, each Obligor,
Administrative Agent and each Lender shall, to the maximum extent permitted
under Applicable Law, (a) characterize any nonprincipal payment as an expense,
fee or premium rather than as interest, (b) exclude voluntary prepayments and
the effect thereof, and (c) amortize, prorate, allocate and spread in equal
parts, the total amount of interest throughout the entire contemplated term of
the Obligation so that the interest rate is uniform throughout the entire term
of the Obligation; provided that if the Obligation is paid and performed in full
prior to the end of the full contemplated term thereof, and if the interest
received for the actual period of existence thereof exceeds the Maximum Amount,
Administrative Agent or Lenders, as appropriate, shall refund to the Borrower
the amount of such excess or credit the amount of such excess against the total
principal amount owing, and, in such event, neither Administrative Agent nor any
Lender shall be subject to any penalties provided by any Laws for contracting
for, charging or receiving interest in excess of the Maximum Amount. This
Section 9.09 shall control every other provision of all agreements among the
parties to the Loan Papers pertaining to the transactions contemplated by or
contained in the Loan Papers.
SECTION 9.10. ENTIRE AGREEMENT. THIS AGREEMENT AND THE
OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN PAPER. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN PAPERS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 9.11.
Severability. In the event any one or more of the provisions contained in
this Agreement or in any other Loan Paper should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
Counterparts. This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 9.03 hereof.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
Jurisdiction; Consent to Service of Process.ervice of Process
(a) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any Texas State
court or Federal court of the United States of America sitting in Dallas, Texas
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Paper, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such Texas State or, to the
extent permitted by Law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by Law. Nothing in this Agreement or in any other
Loan Paper shall affect any right that the Administrative Agent, the Issuing
Bank or any Lender may otherwise have to bring any action or proceeding relating
to this Agreement or any other Loan Paper against the Borrower or its properties
in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Paper in any
Dallas, Texas State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by Law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement and any other Loan Paper irrevocably
consents to service of process in the manner provided for notices in Section
9.01 hereof. Nothing in this Agreement or any other Loan Paper will affect the
right of any party to this Agreement or any other Loan Paper to serve process in
any other manner permitted by Law.
Confidentiality. The Administrative Agent, the Issuing Bank and each of
the Lenders agrees to keep confidential (and to use its best efforts to cause
its respective agents and representatives to keep confidential) the Information
(as defined below) and all copies thereof, extracts therefrom and analyses or
other materials based thereon, except that the Administrative Agent, the Issuing
Bank or any Lender shall be permitted to disclose Information (a) to such of its
respective officers, directors, employees, agents, affiliates and
representatives as need to know such Information, (b) to the extent requested by
any regulatory authority, (c) to the extent otherwise required by Applicable
Laws and regulations or by any subpoena or similar legal process, (d) in
connection with any suit, action or proceeding relating to the enforcement of
its rights hereunder or (e) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 9.16 or (ii)
becomes available to the Administrative Agent the Issuing Bank or any Lender on
a nonconfidential basis from a source other than the Borrower. For the purposes
of this Section, "Information" shall mean all financial statements,
certificates, reports, agreements and information (including all analyses,
compilations and studies prepared by the Administrative Agent, the Issuing Bank
or any Lender based on any of the foregoing) that are received from the Borrower
and related to the Borrower, any shareholder of the Borrower or any employee,
customer or supplier of the Borrower, other than any of the foregoing that were
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrower, and which
are in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential. The provisions of this
Section 9.16 shall remain operative and in full force and effect regardless of
the expiration and term of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
THE BORROWER: ON COMMAND CORPORATION
By:
Its:
THE ADMINISTRATIVE AGENT:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, as Administrative
Agent
By: Gregory I. Meador
Its: Vice President
LENDERS:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, individually as a
Lender
Pro Rata Percentage:
100%
Address:
901 Main Street
64th Floor
Dallas, Texas 75202
By: Gregory I. Meador
Attn.: Gregory I. Meador Its: Vice President
Telephone: (214) 508-0860
Telecopy: (214) 508-9390
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
financial statements for the quarter ended September 30, 1996 and is qualified
in its entirety by reference to such financial statements.
</LEGEND>
<CIK> 0001002666
<NAME> Ascent Entertainment Group, Inc.
<MULTIPLIER> 1000
<CURRENCY> U.S. Dollars
<S> <C> <C>
<PERIOD-TYPE> 9-MOS 3-MOS
<FISCAL-YEAR-END> DEC-31-1996 DEC-31-1996
<PERIOD-START> Jan-01-1996 Jul-01-1996
<PERIOD-END> SEP-30-1996 SEP-30-1996
<EXCHANGE-RATE> 1.00 1.00
<CASH> 1,473 1,473
<SECURITIES> 0 0
<RECEIVABLES> 25,631 25,631
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 54,945 54,945
<PP&E> 255,206 255,206
<DEPRECIATION> 0 0
<TOTAL-ASSETS> 546,117 546,117
<CURRENT-LIABILITIES> 134,787 134,787
<BONDS> 72,000 72,000
0 0
0 0
<COMMON> 297 297
<OTHER-SE> 287,268 287,268
<TOTAL-LIABILITY-AND-EQUITY> 546,117 546,117
<SALES> 0 0
<TOTAL-REVENUES> 152,583 33,940
<CGS> 0 0
<TOTAL-COSTS> 114,138 21,533
<OTHER-EXPENSES> 56,669 19,641
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 5,905 2,282
<INCOME-PRETAX> (23,638) (8,788)
<INCOME-TAX> (7,186) (2,738)
<INCOME-CONTINUING> (16,452) (6,050)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (16,768) (6,102)
<EPS-PRIMARY> (.56) (.21)
<EPS-DILUTED> (.56) (.21)
</TABLE>
