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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER: 00-21315
ON COMMAND CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 77-04535194
(STATE OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
6331 SAN IGNACIO AVENUE, SAN JOSE, CALIFORNIA 95119
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (408) 360-4500
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
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TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
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Common Stock NASDAQ National Market System
Series A Common Stock Purchase Warrants NASDAQ National Market System
Series B Common Stock Purchase Warrants NASDAQ National Market System
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SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: NONE
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 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 [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
The aggregate market value of the Registrant's Common Stock held by
non-affiliates of the Registrant as of March 3, 1999, was $125,407,368 based
upon a price of $9.625 per share, which was the average of the bid and asked
prices of such stock on March 3, 1999, as reported on the NASDAQ National Market
Reporting System. As of March 3, 1999, there were 30,169,752 shares of the
Registrant's Common Stock issued and outstanding and 1,424,875 Series A
Warrants, 2,625,000 Series B Warrants, and 3,450,000 Series C Warrants
(non-registered) issued and outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
The registrant's definitive proxy statement with respect to its annual
meeting of stockholders is incorporated by reference herein.
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TABLE OF CONTENTS
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Item 1. Business
Introduction................................................ 1
General..................................................... 2
Industry Overview........................................... 2
Operating and Growth Strategies............................. 3
Services and Products....................................... 3
Sales and Marketing......................................... 5
Installation and Service Operations......................... 6
Hotel Contracts............................................. 6
Technology.................................................. 6
Suppliers................................................... 7
Integrating Operations...................................... 7
Competition................................................. 7
Regulation.................................................. 8
Patents, Trademarks, and Copyrights......................... 9
International Markets....................................... 9
Other Guest Services........................................ 9
Markets and Customers....................................... 10
Employees................................................... 10
Item 2. Properties.................................................. 10
Item 3. Legal Proceedings........................................... 11
Item 4. Submission of Matters to a Vote of Security Holders......... 11
Executive Officers of Registrant............................ 11
Item 5. Market for the Registrant's Common Equity and Related
Stockholder Matters......................................... 12
Item 6. Selected Financial Data..................................... 14
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................... 15
Item 7A. Quantitative and Qualitative Disclosures About Market
Risk........................................................ 21
Item 8. Financial Statements and Supplementary Data................. 21
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure.................................... 40
Item 10. Directors and Executive Officers of the Registrant.......... 40
Item 11. Executive Compensation...................................... 40
Item 12. Security Ownership of Certain Beneficial Owners and
Management.................................................. 40
Item 13. Certain Relationships and Related Transactions.............. 40
Item 14. Exhibits, Financial Statements, Schedules and Reports on
Form 8-K.................................................... 41
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PART I
This Form 10-K may contain forward looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended, which reflect On Command
Corporation's current judgment on those issues. Because such statements apply to
future events, they are subject to risks and uncertainties that could cause the
actual results to differ materially. Important factors, which could cause actual
results to differ materially, are described in the following paragraphs and are
particularly noted under Business Risks on pages 18 through 21 and the Company's
Reports on Forms 10-Q and 10-K, as filed with the Securities and Exchange
Commission. Although the Company has attempted to list some of the important
factors that may cause actual results to differ materially from those
anticipated, those factors should not be viewed as the only factors which may
affect future operating results.
ITEM 1. BUSINESS
INTRODUCTION
On Command Corporation (the "Company" or "OCC") is a Delaware corporation
formed by Ascent Entertainment Group, Inc. ("Ascent") for the purpose of (i)
effecting the merger (the "Merger") of On Command Video Corporation ("OCV"), a
majority-owned subsidiary of Ascent, with a wholly-owned subsidiary of OCC,
after which OCV became a wholly-owned subsidiary of OCC, and (ii) effecting the
acquisition (the "Acquisition") of Spectradyne, Inc., a wholly-owned subsidiary
of SpectraVision, Inc. ("Oldco"). Following the Acquisition, Spectradyne, Inc.
changed its name to SpectraVision, Inc. ("SpectraVision"). At the time of the
Merger and Acquisition, Ascent had been a majority-owned subsidiary of COMSAT
Corporation ("COMSAT"). On June 27, 1997, COMSAT consummated the distribution of
its 80.67% ownership interest in Ascent to the COMSAT shareholders on a pro-rata
basis in a transaction that was tax-free for federal income tax purposes.
The Merger and Acquisition were effective on October 8, 1996. The Merger
was accounted for using the historical book value of the assets, liabilities,
and stockholders' equity acquired from OCV in a manner similar to a pooling of
interests. The Acquisition was accounted for as a purchase using the fair value
of the assets acquired and liabilities assumed from SpectraVision. Prior to the
Merger and Acquisition (collectively hereafter, the "Acquisition"), OCC had no
significant operations other than On Command Development Corporation.
As of the closing date of the Acquisition, the stockholders of OCV received
21,750,000 of OCC Common Stock (72.5% of the initial OCC Common Stock, of which
Ascent received 17,149,766 shares). In consideration for the acquisition of the
assets and properties of SpectraVision by OCC, OCC paid $4 million in cash and
issued 8,041,618 shares of OCC common stock to the Oldco bankruptcy estate for
distribution to Oldco's creditors. Additionally, 208,382 shares were held in
reserve pursuant to the Acquisition for potential adjustments. Of these, 196,382
shares of reserve stock were subsequently distributed to the Oldco bankruptcy
estate for the benefit of Oldco's creditors with the remaining 12,000 shares
distributed to the OCV stockholders.
In connection with the Acquisition, 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 seven 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 1,123,823 shares;
Series B warrants to purchase for cash an aggregate of 2,625,000 shares of OCC
Common Stock were issued to the Oldco bankruptcy estate for distribution to
creditors; and $4.0 million in cash was paid and Series C warrants to purchase
for cash an aggregate of 3,450,000 shares of OCC Common Stock were issued to
OCC's investment advisors in consideration for certain banking and advisory
services provided in connection with the Acquisition.
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Unless otherwise indicated, all references to "On Command Corporation,"
"OCC" or the "Company" will include On Command Corporation and its wholly owned
subsidiaries.
GENERAL
OCC, is a holding company whose principal assets are OCV, SpectraVision,
and On Command Development Corporation, each of which operates as a separate,
wholly owned subsidiary of On Command Corporation.
OCC is the leading provider (by number of hotel rooms served) of in-room,
on-demand video entertainment and information services to the domestic lodging
industry. Currently, OCC's primary on-demand platform is the patented OCV
system, a video selection and distribution technology platform that allows hotel
guests to select at any time up to 50 motion pictures on-demand by computer
controlled television sets located in their rooms.
The OCV platform also provides for in-room viewing of free-to-guest
programming of select cable channels (such as HBO, Showtime, ESPN, CNN and
Disney Channel) and other interactive and information services. OCV primarily
provides its services under long-term contracts to hotel chains, hotel
management companies, and individually owned and franchised hotel properties,
predominantly in the deluxe, luxury, and upscale hotel categories serving
business travelers, such as Marriott, Hilton, Hyatt, Wyndham, Doubletree,
Fairmont, Embassy Suites, Four Seasons, and other select hotels. OCV has
experienced rapid growth in the past six years, increasing its base of installed
on-demand rooms from approximately 37,000 rooms at the end of 1992 to
approximately 704,000 rooms at December 31, 1998.
At December 31, 1998, approximately 86.6% of OCC's 929,000 installed rooms
were located in the United States, with the balance located primarily in Canada,
the Caribbean, Australia, Europe, and the Asia-Pacific region. In addition to
installing OCV systems in hotels served by OCV, OCV sells its systems to certain
other providers of in-room entertainment, including Hospitality Network, Inc.,
which is licensed to use OCV's system to provide on-demand, in-room
entertainment and information services to certain gaming-based, hotel properties
and MagiNet Corporation (formerly Pacific Pay Video Limited), which was
previously licensed to use OCV's system to provide on-demand in-room
entertainment in the Asia-Pacific region. OCV has terminated the MagiNet
license, which termination is being contested by MagiNet.
SpectraVision was historically a leading provider of interactive in-room
video entertainment services to the lodging industry. Founded in 1971,
SpectraVision's former parent, Oldco, originally developed and patented a system
that provides in-room television viewing of recently released major and other
motion pictures on a pay-per-view basis. SpectraVision subsequently expanded its
services to include providing pay-per-view motion pictures in an on-demand
format, delivering free-to-guest programming, and providing interactive services
that capitalized on SpectraVision's proprietary two-way communications
equipment. Like OCV, SpectraVision also provides in-room viewing of
free-to-guest programming of similar select cable channels and other interactive
services.
At December 31, 1998, SpectraVision equipment was in place in approximately
225,000 rooms, with approximately 152,000 installed rooms in the United States,
and the balance located in Canada, Asia, Europe and Mexico.
On Command Development Corporation develops technologies to be used by OCV
and SpectraVision to support and enhance OCV's and SpectraVision's operations
and to develop new applications to be marketed by OCV and SpectraVision.
INDUSTRY OVERVIEW
Providing in-room entertainment and information services to the lodging
industry includes offering pay-per-view motion pictures, free-to-guest
programming of select pay cable channels, and an increasing array of interactive
programs and information services. Pay-per-view services were introduced in the
early 1970s and have since become a standard amenity offered by many hotels to
their guests. Historically, providers of programming to hotels delivered their
content on a fixed time schedule that did not provide the hotel guest
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flexibility in choosing when to watch a movie. Typically, a guest would be
offered a choice of four to eight movies, each of which would be shown once
every two to four hours. The development of video switches (including OCV's
patented video switch) has enabled providers of pay-per-view services to offer
scheduling flexibility to the viewer. Changes in technology have also led to the
ability to provide a number of on-demand interactive services such as guest
folio review, automatic checkout, survey completion, guest messaging, and video
games. The market for in-room entertainment and information is characterized as
a highly competitive environment among several industry-dedicated companies and
a number of new entrants including cable companies, telecommunications companies
and others. See "Competition".
OPERATING AND GROWTH STRATEGY
On Command Corporation's operating and growth strategy is to (i) increase
its installed hotel customer base by obtaining contracts with business and
luxury hotels and select mid-priced hotels without current service, converting
hotels currently served by other providers whose contracts are expiring, and
servicing hotels which are acquired or constructed by existing customers, (ii)
increase revenues and decrease costs in certain hotels acquired in the
SpectraVision acquisition by installing OCV technology offering greater
reliability, broader selection, and more viewing flexibility, (iii) create new
revenue sources through an expanding range of interactive and information
services offered to the lodging industry, and (iv) expand its room base in
underserved foreign markets.
Prior to the Acquisition and through 1998, OCV had experienced rapid
growth, increasing its base of installed rooms from approximately 37,000 rooms
in approximately 90 hotels at the end of 1992 to approximately 704,000 rooms in
approximately 2,496 hotels at December 1998. Conversely, SpectraVision, as a
result of financial constraints and its bankruptcy filing in June 1995,
experienced deterioration in its room base. SpectraVision's room base had
decreased from approximately 1,059,000 installed rooms December 1992 to
approximately 469,000 rooms at the time of the Acquisition.
The Acquisition also increased OCC's international base of rooms, better
positioning it to expand further into international markets, which represents an
opportunity for growth for OCC. As of December 31, 1998, approximately 13.4% of
OCC's hotel rooms served, or 124,000 rooms, are located in international
markets.
OCC has substantially completed the integration of SpectraVision's
operating systems, financial reporting, sales, marketing and management
following the Acquisition. In addition, OCC has been actively pursuing the
renewal or extension of most of these contracts with hotel customers with
SpectraVision equipment by offering these customers the opportunity to obtain
OCV on-demand pay-per-view movie service and related services. As of December
31, 1998, OCC had converted approximately 137,000 rooms previously served by
SpectraVision's systems to OCC's on-demand system. Management expects to have a
substantial majority of SpectraVision rooms converted to OCV's on-demand system
by the end of 2000.
SERVICES AND PRODUCTS
Pay-Per-View
Through its OCV and SpectraVision subsidiaries, OCC provides on-demand and,
in some cases, scheduled in-room television viewing of major motion pictures and
independent non-rated motion pictures for mature audiences, for which a hotel
guest pays on a per-view basis. Depending on the type of system installed and
the size of the hotel, guests can choose up to 50 different movies with an
on-demand system, or from eight to twelve movies with a scheduled system.
OCC obtains the non-exclusive rights to show recently released motion
pictures from major motion picture studios generally pursuant to a master
agreement with each studio. The license period and fee for each motion picture
are negotiated individually with each studio, which typically receives a
percentage of that picture's gross revenues generated by the pay-per-view
system. Typically, OCC obtains rights to exhibit major motion pictures during
the "Hotel/Motel Pay-Per-View Window," which is the time period after initial
theatrical release and before release for home video distribution or cable
television exhibition. OCC attempts to license pictures as close as possible to
motion pictures theatrical release date to benefit from the studios'
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advertising and promotional efforts. OCC also obtains independent motion
pictures, most of which are non-rated and are intended for mature audiences, for
a one-time flat fee that is nominal in relation to the licensing fees paid for
major motion pictures.
OCC provides service under contracts with hotels that generally provide for
a term of five to seven years. Under these contracts, OCC installs its system
into the hotel at OCC's cost, and OCC retains ownership of all its equipment
used in providing the service. Traditionally, the hotel provides its own
televisions, however, based on certain economic evaluations, OCC may provide
televisions to hotels in exchange for other contractual consideration. OCC
undertakes a significant investment when it installs its system in a hotel
property, sometimes rewiring part of the hotel. Depending on the size of the
hotel property and the configuration of the system installed, and if televisions
are provided by the Company to the hotel property, the installation cost of a
new, on-demand system with interactive and video game services capabilities,
including the head-end equipment, averages from approximately $375 to $750 per
room. If the Company does not provide televisions to the hotel property, the
average costs are $375 to $450 per room. OCC's contracts with hotels generally
provide that OCC will be the exclusive provider of in-room, pay-per-view video
entertainment services to the hotel and generally permit OCC to set the movie
price. The hotels collect movie-viewing charges from their guests and retain a
commission equal to a percentage of the total pay-per-view revenue that varies
depending upon the size and profitability of the system. Some contracts also
require OCC to upgrade systems to the extent that new technologies and features
are introduced during the term of the contract. At the scheduled expiration of a
contract, OCC generally seeks to extend the agreement on terms that are based
upon the competitive situation in the market.
The revenue generated from OCC's pay-per-view service is dependent on the
occupancy rate at the property, the "buy rate" or percentage of occupied rooms
that buy movies or other services at the property, and the price of the movie or
service. Occupancy rates vary based on the property's location, its competitive
position within the marketplace, and, over time, based on seasonal factors and
general economic conditions. Buy rates generally reflect the hotel's guest mix
profile, the popularity of the motion pictures or services available at the
hotel, and the guests' other entertainment alternatives. Buy rates also vary
over time with general economic conditions and the business of OCC is closely
related to the performance of the business and luxury hotel segments of the
lodging industry. Movie price levels are established by OCC and are set based on
the guest mix profile at each property and overall economic conditions.
Currently, OCC's movie prices typically range from $8.95 to $9.95 for a purchase
by the hotel guest and, in certain hotels with OCV systems, $4.95 for each
subsequent purchase by the same guest on the same day. The SpectraVision
equipped hotels do not currently discount second buys. The current price for
OCC's pay-per-day service is $15.99 per day.
OCV
On Command Video(TM) On Demand System. The On Command Video System was
patented by OCV in 1992 and consists of a microprocessor controlling the
television in each room, a hand-held remote control, and a central "head-end"
video rack and system computer located elsewhere in the hotel. Programming
signals originate from video cassette players located within the head-end rack
and are transmitted to individual rooms by way of OCV's proprietary video
switching technology. Movie starts are controlled automatically by the system
computer. The system computer also records the purchase by a guest of any title
and reports billing data to the hotel's accounting system, which posts the
charge to the guest's bill.
Manual functions of the OCV equipment and system are limited to changing
videocassettes once per month and are all handled by OCC's service personnel who
also update the system's movie titles screens. OCV's information system is
capable of generating regular reports of guests' entertainment selections,
permitting OCV to adjust its programming to respond to viewing patterns. The
number of guests that can view a particular movie at the same time varies from
hotel to hotel depending upon the popularity of the movie. OCV provides more
copies of the most popular programming to hotels. The high-speed, two-way
digital communications capability of the OCV system enables OCC to provide
advanced interactive and information features, such as video games, in addition
to basic guest services such as video checkout, room service ordering and guest
satisfaction surveys. The OCV system also enables hotel owners to broadcast
informational and promotional messages and to monitor room availability.
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For example, in a typical hotel with 400 rooms, the central head-end video
rack would consist of approximately 120 videocassette recorders containing up to
ten copies of the most popular movies and a total of up to 50 different titles.
The OCV system includes a computerized in-room on-screen menu that offers to
guests a list of only those movie selections available to the guest at that
time. As a result, even though the on-screen menu may not include a list of all
titles available in the particular hotel, the list includes all movies currently
available to the guest, thus eliminating the possibility of a guest being
disappointed when the guest's selection is not available. OCC markets the
full-scale OCV video-on-demand systems to business and luxury hotels.
Video NOW(TM). The Video NOW system works with the hotel's existing
televisions and telephones allowing guests to use their touch-tone telephones to
access on-demand movies and other programming and was targeted to select
midscale hotels. Beginning in 1997, OCV began to discontinue the marketing of
Video NOW systems due to the Company's development of a lower-cost, scalable,
on-demand system based substantially upon the On Command Video patented system.
SpectraVision
In comparison with OCV systems, hotels still equipped with SpectraVision
technology generally offer fewer choices if served by SpectraVision on-demand
systems, or only offer hotel guests eight movies per day at scheduled times, or
some combination thereof.
Tape-Based SpectraVision(TM). SpectraVision originated a tape-based system
which typically offers a hotel guest eight movies per day at predetermined
times.
Guest Choice(TM). In 1991, SpectraVision introduced the Guest Choice system
to provide hotel guests with on-demand viewing of videotapes based upon
proprietary equipment and software.
Digital Guest Choice(TM). In 1994, SpectraVision introduced a digital video
on-demand service, called Digital Guest Choice. The Digital Guest Choice system
provides on-demand viewing of digitally stored movies that reside on high
capacity disk arrays. While the Company is in the process of converting Digital
Guest Choice systems in the United States to its OCV on-demand systems, some
units of Digital Guest Choice equipment will continue to be used in Asia.
Free-To-Guest Services
OCC also markets free-to-guest services pursuant to which a hotel may elect
to receive one or more programming channels, such as HBO, Showtime, CNN, ESPN,
TBS, Disney Channel, Discovery Channel, and other cable networks. OCC provides
hotels free-to-guest services through a variety of arrangements, including
having the hotel pay the company a fixed monthly fee per room for each
programming channel selected or having the price of such programming included in
the Company's other offerings.
New Services. Beginning in 1997, OCC developed and selectively deployed for
market testing several new services to complement its existing offerings and
strengthen its growth strategy by creating new potential revenue sources. New
technology and services being tested by OCC include a digital server technology
and high-speed, TV-based and laptop connectivity Internet offerings. OCC is also
testing shorter and more targeted non-movie programming on a lower cost
pay-per-view basis. The initial categories of content include business,
lifestyle and kids-only. In addition, OCC is in the process of long-term testing
of a new sports category of programming that provides hotel guests with a
selection of out-of-market sports not televised nationally, or subject to local
blackout restrictions.
SALES AND MARKETING
Substantially all of OCV's growth has derived from obtaining contracts with
hotels in the United States not under contract with existing vendors or served
by other vendors as the contracts covering such hotels expired. OCC believes
that, as a result of the Acquisition, opportunities for additional growth in the
United States will be more limited than in the past. Therefore, the Company
intends to focus its strategy for obtaining
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new hotel customers in international markets. The Company believes that,
relative to the United States, many international markets are underserved by the
in-room entertainment industry.
OCC's marketing efforts are primarily focused on business and leisure
hotels with approximately 150 rooms or more. Management believes that such
hotels consistently generate the highest revenues per room in the lodging
industry and have the highest potential for new service revenue growth. The
Company also targets smaller deluxe, luxury and upscale hotels and select
mid-priced hotels serving business travelers that meet its profitability
criteria. In connection with such smaller hotel segments, the Company has
recently begun to employ additional engineering development and marketing
efforts to target hotels under 150 rooms. On Command intends to continue
targeting established hotel chains, certain business and leisure hotel
management companies, and selected independent hotels.
OCC markets its services to hotel guests by means of on-screen advertising
that highlights the services and motion picture selections of the month as well
as an in-room entertainment guide distributed to more than 804,000 hotel rooms
each month. OCC believes it has been successful at renewing its hotel contracts
due to its large capital investment in wiring infrastructure of the hotel and
its high quality service record.
INSTALLATION AND SERVICE OPERATIONS
At December 31, 1998, OCC's installation and service organization consisted
of approximately 381 installation and service personnel in the United States and
Canada. OCC installation and service personnel are responsible for all of the
hotel rooms served by OCC in the United States and Canada, including system
maintenance and distribution of videocassettes. OCC's installation personnel
also prepare site surveys to determine the type of equipment to be installed at
each hotel, install systems, train the hotel staff to operate the systems, and
perform quality control tests. OCC also uses local installation subcontractors
supervised by full-time OCC personnel to install its systems.
OCC maintains a toll-free technical support hot line that is monitored 24
hours a day by trained support technicians. The on-line diagnostic capability of
the OCV and SpectraVision systems enables the technician to identify and resolve
a majority of the reported system malfunctions from OCC's service control center
without visiting the hotel property. Should a service visit be required, the
modular design of the OCV and SpectraVision systems generally permits
installation and service personnel to replace defective components at the hotel
site.
HOTEL CONTRACTS
The Company typically negotiates and enters into a separate contract with
each hotel for the services provided, except for some of the Company's large
hotel management customers, in which case the Company negotiates and enters into
a single master contract for the provision of services for all of the corporate-
managed hotels of such management company. In the case of franchised or
independently owned hotels, the contracts are generally negotiated separately
with each hotel. Existing contracts generally have a term of five or seven years
from the date the system becomes operational. At expiration, OCC typically seeks
to extend the term of the contract on terms competitive in the market. At
December 31, 1998, approximately 10% of the pay-per-view hotels served by OCC
have contracts that have expired and are on a month-to-month basis.
Approximately 8% of the pay-per-view hotels served by OCC have contracts
expiring in 1999. However, some of the SpectraVision hotel contracts, which the
Company classified internally as expired, have two-year automatic renewal
provisions under certain conditions and may continue to be in effect. As a
result, the expiration rates set forth above may overstate the actual number of
hotel contracts that are expiring.
TECHNOLOGY
OCC's product development philosophy is to design high quality
entertainment and information systems which incorporate features allowing the
Company to add system enhancements as they become commercially available and
economically viable. The high speed, two-way digital communications capability
of the OCV system enables the Company to provide advanced interactive features
such as video games in addition to basic guest services such as video checkout,
room service ordering, and guest survey.
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The Company's systems incorporate proprietary communications system designs
with commercially manufactured components and hardware such as video cassette
players, televisions, amplifiers, and computers. Because the Company's systems
generally use industry standard interfaces, OCC can integrate new technologies
as they become economically viable.
SUPPLIERS
OCC contracts directly with various electronics firms for the manufacture
and assembly of its systems hardware, the design of which is controlled by On
Command Development Corporation. Historically, these suppliers have been
dependable and able to meet delivery schedules on time. The Company believes
that, in the event of a termination of any of its sources, alternate suppliers
could be located without incurring significant costs or delays. However, certain
electronic component parts used with the Company's products are available from a
limited number of suppliers and can be subject to temporary shortages because of
general economic conditions and the demand and supply for such component parts.
In addition, some of the SpectraVision systems currently installed in hotels
require a high level of service and repair. As these systems become older,
servicing replacement parts will become more difficult. If the Company were to
experience a shortage of any given electronic part, the Company believes that
alternative parts could be obtained or system design changes could be made. In
such event, the Company could experience a temporary reduction in the rate of
new installations and/or an increase in the cost of such installations.
The head-end electronics are assembled at the Company's facilities for
testing prior to shipping. Following assembly and testing of equipment designed
specifically for a particular hotel, the system is shipped to each location,
where OCC-employed and trained technicians install the system, typically
assisted by independent contractors.
For those hotels for which the Company supplies televisions, On Command
purchases such televisions from a small number of television vendors. In the
event of a significant price increase for televisions by such vendors, the
Company could face additional, unexpected capital expenditure costs.
OCC, through its OCV and SpectraVision subsidiaries, maintains direct
contractual relations with various suppliers of pay-per-view and free-to-guest
programming, including the motion picture studios and/or their domestic and
international distributors and programming networks. OCC believes its
relationships with all suppliers are good.
In addition, the Company receives satellite signal transport services for
much of its domestic cable television programming from DIRECTV, Inc. The Company
believes that its relationship with DIRECTV, Inc. is good. However, an
interruption in DIRECTV's satellite service could interfere with the Company's
ability to serve many of its hotel customers' free-to-guest cable programming
requirements.
INTEGRATING OPERATIONS
On Command Corporation has substantially completed the full integration of
its operations in support of the OCV and SpectraVision systems. Some remaining
system development and field support projects will continue into 1999. In
addition, OCC has continued to pursue the renewal or extension of certain hotel
customers with SpectraVision equipment by offering these customers the
opportunity to obtain OCV on-demand pay-per-view service and related services.
COMPETITION
In the U.S., taking into account the various providers of cable television
services, there are numerous providers of in-room video entertainment to the
lodging industry, at least three of which provide on-demand pay-per-view,
free-to-guest programming, and guest services by means of the in-room
television. Internationally, there are more companies competing in the
pay-per-view lodging industry than in the United States.
Pay-per-view, the most profitable component of the services offered,
competes for a guest's time and entertainment resources with broadcast
television, free-to-guest programming, and cable television services. In
addition, there are a number of competitors that are developing ways to use
their existing infrastructure to
7
<PAGE> 10
provide in-room entertainment and/or information services to the lodging
industry, including cable companies (including wireless cable),
telecommunications companies, Internet and high-speed connectivity companies,
and direct-to-home and direct broadcast satellite companies. Some of these
competitors have been providing free-to-guest services to hotels and are
beginning to provide video-on-demand, Internet and high speed connectivity to
hotels.
OCC is the leading provider (by number of hotel rooms served) of in-room
video entertainment services to the United States lodging industry. OCC is also
the leading provider (by number of hotel rooms served) of in-room on-demand
video entertainment services to the lodging industry on a worldwide basis.
Domestically, OCC competes on a national scale primarily with LodgeNet
Entertainment Corporation ("LodgeNet") and on a domestic and international
regional basis with certain other smaller entities. Based on publicly available
information, OCC estimates that, at December 31, 1998, LodgeNet served
approximately 597,000 pay-per-view rooms, as of which approximately 582,000 are
equipped with on-demand service. At December 31, 1998, OCC served approximately
929,000 rooms, of which approximately 829,000 are on-demand rooms.
Competition with respect to in-room video entertainment and information
contracts centers on a variety of factors, depending upon the circumstances
important to a particular hotel. Among the more important factors are (i) the
features and benefits of the entertainment and information systems, (ii) the
quality of the vendor's technical support and maintenance services, and (iii)
the financial terms and conditions of the proposed contract. With respect to
hotel properties already receiving in-room entertainment services, the current
provider may have certain informational and installation cost advantages
compared to outside competitors.
Furthermore, while the Company is addressing the likelihood of increased
demand for Internet services in the hotel guestroom, OCC may face additional
competition in this area from traditional as well as new competitors. Some of
these competitors may be better funded from both public capital and/or private
venture capital markets and have access to additional capital resources which
OCC does not have.
OCC believes its competitive advantages include (i) technological
leadership represented by its superior on-demand capability and range of
services offered, and (ii) system reliability and high quality service. OCC
believes that its growth (including OCV's growth prior to the Acquisition)
reflects the strong competitive position of its products and services. The OCC
system offers an expansive library of on-demand movies and will allow OCC to
upgrade and add new features to the OCC system during the terms of OCC's
contracts and to obtain renewals or extensions of its contracts.
OCC also competes with local cable television operators by customizing
packages of programming to provide only those channels desired by the hotel
subscriber, which typically reduces the overall cost of the service provided.
On Command Corporation anticipates substantial competition in obtaining new
contracts with major hotel chains. The Company believes that hotels view the
provision of in-room on-demand entertainment and information both as a revenue
source and as a source of competitive advantage in that sophisticated hotel
guests are increasingly demanding a greater range of quality entertainment and
information alternatives. At the same time, OCC believes that certain major
hotel chains have awarded contracts based primarily on the level and nature of
financial and other incentives offered by the service provider. While the
Company believes its competitive advantages will enable OCC to continue to offer
financial arrangements that are attractive to hotels, its competitors may
attempt to maintain or gain market share at the expense of profitability. OCC
may not always be willing to match incentives provided by its competitors.
The communications industry is subject to rapid technological change. New
technological developments could adversely effect OCC's operations unless the
Company is able to provide equivalent services at competitive prices.
REGULATION
The Federal Communications Commission (the "FCC") has broad jurisdiction
over electronic communications. The FCC does not directly regulate the Company's
pay-per-view or free-to-guest services.
8
<PAGE> 11
The FCC's jurisdiction also encompasses certain aspects of OCC's operations
as they related to its use of the radio frequency spectrum in certain hotels
acquired in connection with SpectraVision. SpectraVision had obtained optional
licenses from the FCC for a number of its downlink, television receive-only
satellite receivers, which are used to receive transmissions from communications
satellites in connection with its free-to-guest services. SpectraVision had also
obtained the required licenses for the microwave point-to-point relay
facilities.
On February 1, 1996, Congress passed The Telecommunications Act of 1996
(the "Telecommunications Act"), which was signed into law on February 8, 1996.
The Telecommunications Act has and will continue to alter federal, state, and
local laws and regulations for telecommunications providers and services, and
may affect On Command Corporation. There are numerous rulemakings to be
undertaken by the FCC that will interpret and implement the Telecommunications
Act. It is not possible at this time to predict the outcome of such rulemakings.
PATENTS, TRADEMARKS AND COPYRIGHTS
The Company owns a number of patents and patent licenses covering various
aspects of its pay-per-view and interactive systems. Although OCC maintains
these patents, On Command Corporation believes that the design, innovation, and
quality of its products and their relations with its customers are at least as
important, if not more so, to the maintenance and growth of the Company. The
Company also owns various trade names, trademarks, service marks, and logos used
in its businesses, which OCC intends to actively protect. In connection with the
LodgeNet litigation, the Company has licensed each other's patented technology
for five years.
INTERNATIONAL MARKETS
In addition to its operations in the fifty United States, OCC offers its
services in Canada, Mexico, Puerto Rico, the U.S. Virgin Islands, Hong Kong,
Singapore, Thailand, Australia, the Bahamas, Europe, and elsewhere in the
Asia-Pacific region.
The Company historically experienced higher international revenues and
operating cash flow per room than in the United States because of higher prices,
higher buy rates, and the general lack of programming alternatives. However, the
Company generally also incurs greater capital expenditure and operating costs
outside the United States. Additionally, the effect of the Asian economic crisis
contributed to a decline in revenues from that region. At December 31, 1998, the
Company serviced 421 hotels with a total of approximately 124,000 rooms located
outside the United States.
The competition to provide pay-per-view services to hotels is even more
dispersed in international markets, than in the United States. Expansion of
OCC's operations into foreign markets involves certain risks that are not
associated with further expansion in the United States including availability of
programming, government regulation, currency fluctuations, language barriers,
differences in signal transmission formats, local economic and political
conditions, and restriction on foreign ownership and investment. Consequently,
these risks may hinder OCC's efforts to grow its base of hotel rooms in foreign
markets.
OTHER GUEST SERVICES
In addition to entertainment services, OCC provides other guest services to
the lodging industry. Some of these services generate revenues and cash flows
that are independent of viewing levels. These services use two-way interactive
communications capability of the Company's equipment and room availability
monitoring. The hotel typically pays a fixed monthly fee for each service
selected. Among the guest services provided are video check-out, room service
ordering and guest satisfaction survey. Guest services are also currently
available in Spanish, French, and certain other foreign languages. In most
cases, the guest services are made a part of the contract for pay-per-view
services which typically runs for a term of five to seven years.
Furthermore, OCC sells systems to certain other providers of in-room
entertainment including Hospitality Network, Inc., which is licensed to use
OCV's system to provide on-demand, in-room entertainment and
9
<PAGE> 12
information services to certain gaming-based, hotel properties and through
September 1998 MagiNet Corporation (formerly Pacific Pay Video Limited)
("MagiNet"), which was previously licensed to use OCV's system to provide
on-demand in-room entertainment in the Asia Pacific region. In September 1998,
OCV filed suit against MagiNet for violations of the license agreement between
MagiNet and OCV, and concurrently terminated MagiNet's license to use the OCV
system. MagiNet is contesting the termination and the lawsuit.
In addition, the Company is developing and testing technology that will
bring Internet and other services to hotel guests in their rooms.
MARKETS AND CUSTOMERS
On Command currently provides entertainment and information services to
hotels which are associated with major hotels chains, management companies and
independent hotels including Adam's Mark, Fairmont, Four Seasons, Hilton
(including Hilton Garden Inn), Holiday Inn, Hyatt, Loews, Marriott (including
Courtyard By Marriott, Fairfield Inn, Renaissance, Residence Inn, &
Ritz-Carlton), Omni, Patriot American Hospitality (Wyndham), Promus Hotels
(Doubletree Hotels, Embassy Suites, & Hampton Inn), Radisson, Sheraton and
Starwood Hotels & Resorts (W & Westin). OCC serves major chains and selected
other hotels throughout the United States, Canada, Mexico, the United Kingdom,
Spain, France, Australia, and the Asia-Pacific region.
The following table sets forth certain information regarding the number of
hotels and rooms served by OCC as of December 31, 1998 and 1997, respectively:
<TABLE>
<CAPTION>
AS OF DECEMBER 31
----------------------------
1998 1997
------------ ------------
<S> <C> <C>
Hotels Served:
U.S. ....................................... 2,799 2,642
Non-U.S. ................................... 421 418
Rooms Served:
U.S. ....................................... 804,025 773,005
Non-U.S. ................................... 124,485 120,409
Total Room Revenue per Equipped Room (RER).... $20.76/month $19.38/month
</TABLE>
EMPLOYEES
As of December 31, 1998, OCC employed a total of 835 persons, including 80
in engineering, 354 in domestic installation and service, 166 in domestic
manufacturing and operations, 23 in sales, 111 in management, administration and
finance, and 101 in international service and operations. During fiscal year
1998, the vast majority of research and development efforts have been performed
by the Company's employees rather than outside consultants. None of the
Company's employees is represented by a labor union. The Company has experienced
no work stoppages and believes employee relations are good.
ITEM 2. PROPERTIES
On Command Corporation currently leases its headquarters located in San
Jose, California. The headquarters contain approximately 131,000 square feet of
office, light manufacturing, and storage space. In connection with the
acquisition of SpectraVision, On Command Corporation acquired the SpectraVision
headquarters building in Richardson, Texas which contained approximately 84,000
square feet of office, light manufacturing, and storage space. OCC sold the
Richardson facility in the fourth quarter of 1997 and leased back the facility
through March 31, 1998. The Company has transferred all necessary operations to
the San Jose headquarters. In connection with the Acquisition, OCC also acquired
other leased space that housed SpectraVision's customer support operations
throughout the United States, Canada, Mexico, Puerto Rico, Hong Kong, and
Australia. The Company's properties are suitable and adequate for the Company's
business operations.
10
<PAGE> 13
ITEM 3. LEGAL PROCEEDINGS
On September 11, 1998, OCC reached an agreement with LodgeNet Entertainment
Corporation ("LodgeNet") to settle all pending litigation between the companies.
As a result, the companies have dismissed all pending litigation between the
parties in United States Federal District Courts in California and South Dakota,
with no admission of liability by either party. The terms of the confidential
settlement include a cross-license of each company's patented technologies at
issue to the other party and a covenant not to engage in patent litigation
against the other party for a period of five years. Each company is responsible
for its own legal costs and expenses, and in connection with the multiple
cross-licenses, OCC expects to receive royalty payments, net of legal fees and
expenses, in an aggregate amount of approximately $10.8 million. OCC received
the first payment of approximately $2.9 million (net of expenses) in September
1998 and expects to receive an additional two payments of approximately $3.9
million (net of expenses) in each of July 1999 and July 2000. OCC will recognize
the additional royalty revenue as the cash payments are received.
In September 1998, OCV filed suit against MagiNet, alleging a breach by
MagiNet of a license agreement between OCV and MagiNet, and terminating the
license agreement. OCV has also demanded the payment of license fees from
MagiNet which OCC believes were due and payable under the License Agreement and
have not been paid by MagiNet. MagiNet has counter-claimed against OCV, alleging
that OCV breached the license agreement, and alleging various torts by OCV in
its relationship with MagiNet.
On Command Corporation, or its operating entities, is a defendant and may
be a potential defendant, in lawsuits and claims arising in the ordinary course
of business. While the outcomes of such claims, lawsuits, or other proceedings
cannot be predicted with certainty, management expects that such liability, to
the extent not provided for by insurance or otherwise, will not have a material
adverse effect on the financial condition of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the fourth
quarter of 1998.
EXECUTIVE OFFICERS OF THE REGISTRANT
In accordance with General Instruction G to the Annual Report on Form 10-K,
included herein is the following table, which sets forth the names, ages, at
March 1, 1999, and titles of executive officers of the Company, and biographical
information with respect to such officers.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
President, Chief Operating Officer, and
Brian A.C. Steel............ 39 Director
Ronald D. Lessack........... 52 Senior Vice President, Operations
Richard C. Fenwick, Jr. .... 41 Senior Vice President, Engineering
Paul J. Milley.............. 45 Senior Vice President, Finance
Arthur M Aaron.............. 41 Acting General Counsel and Secretary
Jean A. deVera.............. 49 Senior Vice President, National Accounts
</TABLE>
Brian A.C. Steel has been President and Chief Operating Officer of On
Command Corporation since December 1998. Prior to that appointment, Mr. Steel
was the Executive Vice President, Chief Financial Officer, and Chief Operating
Officer of On Command Corporation since September 1996 and a Director of On
Command Corporation since October 1996. Prior thereto, Mr. Steel was Executive
Vice President, Strategic Development, and Chief Financial Officer for TELE-TV,
a video services partnership among several regional telephone companies, since
August 1995. Prior to joining TELE-TV, Mr. Steel was Vice President, Strategic
Development of Pacific Telesis Enhanced Services, General Manager of Pacific
Telesis Electronic Publishing Services, and Executive Director, Corporate
Development of Pacific Telesis Group from January 1994 to July 1995. Prior to
joining Pacific Telesis, Mr. Steel was a principal in Conversion Management
Associates from January 1993 to December 1993.
11
<PAGE> 14
Ronald D. Lessack has been Senior Vice President, Operations since December
1996 and was named Vice President, Operations of On Command Corporation in
September 1996. Prior to joining On Command Corporation, Mr. Lessack was Vice
President, Operations of OCV since January 1994. Prior to that he was self
employed as a consultant from July 1992 to February 1994, and prior to that he
was a Vice President of Watkins Johnson Co. Group.
Richard C. Fenwick, Jr. has been Senior Vice President of Engineering since
December 1996 and was named Vice President, Engineering of On Command
Corporation in September 1996. Mr. Fenwick had been Vice President, Engineering
of OCV since September 1992.
Paul J. Milley has been Senior Vice President, Finance since December 1996.
Prior thereto, Mr. Milley was Vice President and Chief Financial Officer of The
3DO Company where he worked since October 1993. Prior to joining the 3DO
company, Mr. Milley was Senior Vice President and Chief Financial Officer of
Computerland Corporation where he worked from July 1989 to September 1993.
Arthur M. Aaron has been Acting General Counsel and Secretary since April
1998. Mr. Aaron has been Vice President, Business and Legal Affairs of Ascent
Entertainment Group, Inc. since April 1995. Prior thereto, he was a General
Attorney in the office of the General Counsel of COMSAT Corporation since July
1993.
Jean A. deVera has been Senior Vice President, National Accounts of On
Command Corporation since October 1997, having been promoted from Vice
President, National Accounts, a title Ms. deVera held since September 1996.
Prior to joining On Command Corporation, Ms. deVera was Vice President, National
Accounts of OCV since January 1994. From 1977 through December 1993, Ms. deVera
held various positions at COMSAT Video Enterprises, the last of which was
Director of Sales Administration.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
On Command Corporation's Common Stock and Series A and B Warrants are
traded on the NASDAQ National Market under the symbols ONCO, ONCOW, and ONCOZ
respectively. Series C Warrants were given to an advisor to the Acquisition
transaction but were not registered for public trading. The high and low closing
prices for On Command Corporation's securities during the periods January 1,
1998 through December 31, 1998 and January 1, 1997 through December 31, 1997 are
as follows:
<TABLE>
<CAPTION>
PRICE RANGE
--------------------
COMMON STOCK HIGH LOW
------------ -------- --------
<S> <C> <C>
1998:
First Quarter................................ $13.3750 $12.0000
Second Quarter............................... $14.8750 $13.0000
Third Quarter................................ $14.0000 $ 8.0000
Fourth Quarter............................... $ 9.2500 $ 6.8750
1997:
First Quarter................................ $16.0000 $10.7500
Second Quarter............................... $12.6250 $ 8.1250
Third Quarter................................ $15.2500 $10.7500
Fourth Quarter............................... $13.7500 $11.8750
</TABLE>
12
<PAGE> 15
<TABLE>
<CAPTION>
PRICE RANGE
--------------------
SERIES A WARRANTS HIGH LOW
- - ----------------- -------- --------
<S> <C> <C>
1998:
First Quarter................................ $ 7.1250 $ 6.7500
Second Quarter............................... $ 6.0000 $ 5.5000
Third Quarter................................ $ 5.8750 $ 5.2500
Fourth Quarter............................... $ 5.7500 $ 3.5000
1997:
First Quarter................................ $ 9.5000 $ 6.2500
Second Quarter............................... $ 7.0625 $ 5.0000
Third Quarter................................ $ 6.5000 $ 5.0000
Fourth Quarter............................... $ 8.0000 $ 6.5000
</TABLE>
<TABLE>
<CAPTION>
PRICE RANGE
--------------------
SERIES B WARRANTS HIGH LOW
- - ----------------- -------- --------
<S> <C> <C>
1998:
First Quarter................................ $ 5.4375 $ 5.1250
Second Quarter............................... $ 5.1875 $ 5.0000
Third Quarter................................ $ 4.1250 $ 2.9375
Fourth Quarter............................... $ 3.0000 $ 2.0000
1997:
First Quarter................................ $ 8.7500 $ 4.2500
Second Quarter............................... $ 5.8750 $ 3.5000
Third Quarter................................ $ 6.2500 $ 4.0000
Fourth Quarter............................... $ 7.0000 $ 5.3750
</TABLE>
As of March 3, 1999 there were 30,169,752 shares of Common Stock, 1,424,875
Series A Warrants, 2,625,000 Series B Warrants, and 3,450,000 Series C Warrants
issued and outstanding. As of March 3, 1999 there were 357 Common Stockholders,
21 Series A Warrant holders, 285 Series B Warrant holders, and 8 Series C
Warrant holders of record. The Company's Transfer Agent and Registrar is the
Bank of New York located at 101 Barclay Street, New York, New York.
Concurrent with the Acquisition transaction, the Company paid a dividend in
the amount of $10.7 million to stockholders of record as of September 18, 1996.
This dividend was distributed through the assignment to Ascent of a $8.9 million
promissory note received from Hilton Hotels Corporation and cash of $1.8 million
paid to the minority stockholders. The Company had not paid cash dividends prior
to the transaction, and any payment of such dividends in the future will depend
upon the earnings and financial position of the Company, its capital needs, and
such other factors as the Board of Directors deem appropriate.
13
<PAGE> 16
ITEM 6. SELECTED FINANCIAL DATA
The financial data set forth below, except hotel and room data, was derived
from the audited consolidated financial statements of the Company and should be
read in connection with the Consolidated Financial Statements and related Notes
included elsewhere herein. References herein are to the financial statements and
footnotes included in Part II, Item 8 "Financial Statements and Supplementary
Data".
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------------
1998 1997 1996(1) 1995 1994
-------- -------- -------- -------- --------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Total revenues.................... $238,820 $222,103 $147,469 $102,059 $ 81,609
Total direct costs of revenues.... 103,902 103,343 71,019 48,417 47,786
Total operating expenses.......... 151,068 142,166 87,770 45,091 27,976
Income (loss) from operations..... (16,150) (23,406) (11,320) 8,551 5,847
Net income (loss)(2).............. (25,966) (33,314) (14,739) 4,902 3,456
Net income (loss) applicable to
nonredeemable common stock..... (25,966) (33,314) (15,222) 4,261 2,856
Basic net income (loss) per
share.......................... (0.86) (1.11) (0.67) 0.24 0.20
Diluted net income (loss) per
share.......................... (0.86) (1.11) (0.67) 0.22 0.18
Shares used in basic per share
calculations (in thousands).... 30,150 30,081 22,625 17,554 14,022
Shares used in diluted per share
calculations (in thousands).... 30,150 30,081 22,625 19,406 15,822
CASH FLOW DATA:
Net cash provided by operating
activities..................... 53,913 53,481 42,784 41,374 20,051
Net cash used in investing
activities..................... (83,208) (88,044) (80,505) (63,693) (64,110)
Net cash provided by financing
activities..................... 30,379 35,268 42,521 14,952 47,285
OTHER DATA:
EBITDA(3)......................... $ 72,049 $ 55,578 $ 41,960 $ 37,288 $ 23,381
Cash dividends per share.......... -- -- $ 0.49 -- --
Rooms served at end of
period(4)...................... 929,000 893,000 917,000 361,000 248,000
On Demand rooms at period
end.......................... 829,000 765,000 709,000 361,000 248,000
Scheduled rooms at period
end.......................... 100,000 128,000 208,000 -- --
Hotels served at end of period.... 3,220 3,060 3,144 1,221 751
Capital expenditures(5)........... 83,208 92,307 70,545 63,693 64,110
BALANCE SHEET DATA (AT END OF
PERIOD):
Total assets...................... $402,968 $401,388 $396,538 $211,005 $138,884
Total debt........................ 163,000 133,000 98,000 15,942 1,025
Redeemable common stock........... -- -- -- 11,684 11,043
Total stockholders' equity........ 190,005 217,167 250,917 169,804 108,949
</TABLE>
- - ---------------
(1) 1996 data reflects the acquisition of SpectraVision which was recorded using
the purchase method of accounting as defined by generally accepted
accounting principles. As such, all revenues, expenses and capital
expenditures of SpectraVision for the period October 8 through December 31,
1996, are included herein. Also included are the room and hotel counts and
the assets and liabilities of SpectraVision at December 31, 1996.
(2) 1996 data also includes $8.7 million of charges which management believes
are one-time in nature which consist of asset write-downs, reserves, and
expense accruals related to the Acquisition and integration of
SpectraVision; re-alignment of the Company's operating practices; and the
establishment of On Command Corporation as a new public company. Of the
non-recurring charges, $6.7 million affected EBITDA (see note 3). Excluding
non-recurring charges, the net loss applicable to nonredeemable common stock
for 1996 would have been $6.5 million, net loss per common and equivalent
share would have been $0.29, and EBITDA would have been $48.7 million.
(3) EBITDA represents earnings before interest, income taxes, depreciation,
amortization and other non-operating items such as gain/loss on disposal of
assets and exchange rate gain/loss. The most significant difference between
EBITDA and cash provided from operations is changes in working capital.
EBITDA
14
<PAGE> 17
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. In addition, management believes EBITDA provides
an important additional perspective on the Company's operating results and
the Company's ability to service its long-term debt and fund the Company's
continuing growth. EBITDA is not intended to represent cash flows for the
period, or to depict funds available for dividends, reinvestment or other
discretionary uses. EBITDA has not been presented as an alternative to
operating income or 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 in Item 8 and discussed in Item 7
under Liquidity and Capital Resources. See the Consolidated Financial
Statements and the Notes thereto appearing elsewhere in this document
(4) The decrease in rooms in 1997 is primarily due to the sale and termination
of certain U.S. hotel contracts, which hotels received satellite only
broadcasts of pay-per-view movies.
(5) Capital expenditures primarily include the installation of systems in new
hotels, the conversion of SpectraVision systems and upgrades made to
existing equipment in hotels.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis addresses results of operations for
the calendar years ended December 31, 1998, 1997 and 1996.
RESULTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1998 COMPARED TO YEAR ENDED DECEMBER 31, 1997
Total revenues increased $16.7 million or 7.5% to $238.8 million in 1998,
as compared to total net revenues of $222.1 million in 1997. Room revenues
increased $16.7 million or 7.9% to $227.2 million in 1998 from $210.5 million in
1997. The increase was primarily due to stronger buy rates for movies during
1998, higher total rooms during the year, and a higher percentage of total rooms
being served by higher revenue producing on-demand equipment in 1998 as compared
to 1997. Revenues during 1997 were also affected by a satellite outage in
January affecting certain SpectraVision properties and the termination and sale
of approximately 40,000 rooms during the second half of the year that were
receiving satellite only pay-per-view (PPV) movies. Video system sales and other
revenues remained relatively flat during 1998 as compared to 1997. This was due
to a lower number of video system sales to the Company's primary licensees
offset by the receipt of a $2.9 million royalty payment (net of legal fees) from
LodgeNet made during the third quarter of 1998 (see Note 14 of Notes to
Consolidated Financial Statements).
Total direct cost of revenues increased by $0.6 million or 0.5% to $103.9
million in 1998 as compared to $103.3 million in 1997. Direct costs associated
with room revenue increased $2.4 million or 2.5% to $99.0 million in 1998 from
$96.6 million in 1997, however, as a percentage of room revenue 1998 decreased
to 43.6% as compared to 45.9% in 1997. The dollar amount increase was due to
higher room revenues in 1998 as compared to 1997, while the decrease in the
percentage was due to lower feature movies royalties as a percentage of total
room revenues, and lower satellite/lease cost during 1998. Direct costs from
video system sales and other revenues decreased $1.8 million or 27.1% to $4.9
million, as compared to $6.7 million in 1997, as a result of a decline in sales
of video systems. Direct costs as a percentage of video system sales and other
revenues decreased to 42.1% in 1998 from 57.9% in 1997. The improved gross
margin was largely due to the receipt of the LodgeNet royalty payment during
1998.
Operation costs, which consist primarily of labor and material expense
required to maintain the existing equipment in hotels, decreased $2.7 million or
7.9% to $31.3 million in 1998, as compared to $34.0 million in 1997, and as a
percentage of total revenue decreased to 13.1% in 1998 from 15.3% in 1997. The
decrease was primarily due to non-recurring satellite re-deployment expenses
incurred in the first quarter of 1997 and a higher percentage of rooms using OCV
technology which is less expensive to support than SpectraVision technology.
15
<PAGE> 18
Research and development expenses in 1998 increased $0.6 million or 9.0% to
$7.5 million as compared to $6.9 million in 1997. The higher expenses are due to
increasing efforts in the development of the Company's new products, services
and programming support.
Selling, general, and administrative expenses increased $1.8 million or
7.9% to $24.0 million in 1998, as compared to $22.3 million in 1997. The
increase is principally due to higher expenses in product management and
marketing in order to support new products and initiatives.
Depreciation and amortization expense increased $9.2 million or 11.7% to
$88.2 million in 1998 from $79.0 million in 1997, and as a percentage of total
revenue increased to 36.9% in 1998 from 35.6% in 1997. These expenses are
primarily attributable to depreciable assets associated with video systems that
generate movie revenue. The dollar increase reflects capital investments
associated with growing the Company's room base and converting SpectraVision
rooms to OCC equipment.
Interest/Other expense net increased to $10.4 million in 1998, as compared
to $9.3 million in 1997. This increase was due to the Company's greater reliance
on debt financing to continue its expansion of its installed customer base,
somewhat offset by a lower effective interest rate in 1998.
Provision for income taxes for 1998 represents tax benefits on losses in
certain foreign jurisdictions.
EBITDA increased to $72.0 million in 1998 from $55.6 million in 1997 or an
increase of 29.6%. As a percentage of revenue, EBITDA increased to 30.2% in 1998
from 25.0% in 1997. The improved EBITDA amount is primarily attributable to the
increase in revenue for 1998 as compared to 1997. With the LodgeNet royalty
payment excluded, EBITDA as a percentage of total revenue increased to 28.9% in
1998 from 25.0% in 1997.
Net loss decreased to $26.0 million in 1998 from $33.3 million in 1997 due
to the factors described above.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
Total revenues increased $74.6 million or 50.6% to $222.1 million in 1997,
as compared to total net revenues of $147.5 million in 1996. Room revenues
increased $76.7 million or 57.3% to $210.5 million in 1997 from $133.8 million
in 1996. Such increase was primarily attributable to revenue generated from
rooms acquired in the SpectraVision acquisition. Revenues during 1997 were also
affected by a satellite outage in January affecting certain SpectraVision
properties and the termination and sale of approximately 40,000 rooms during the
second half of the year that were receiving satellite only pay-per-view movies.
The Company discontinued satellite distribution of movies due to poor economics
with the delivery method. Management believes these two events reduced revenue
in 1997 by approximately $3 million to $4 million. Video system sales and other
revenues decreased by $2.0 million or 15.0% to $11.6 million as compared to
$13.7 million in 1996, reflecting a slowdown in ordering of video systems from
two of the Company's primary licensees.
Total direct cost of revenues increased by $32.3 million or 45.5% to $103.3
million in 1997 as compared to $71.0 million in 1996. Direct costs associated
with room revenue increased $37.0 million or 62% to $96.6 million in 1997 as
compared to the prior year, and as a percentage of room revenue increased to
45.9% in 1997 from 44.6% in 1996. The percentage increase reflects lower
reimbursements of free-to-guest programming provided to hotels, higher royalties
on feature movies and higher hotel commission expenses on SpectraVision room
revenues. Direct costs from video system sales and other revenues decreased $4.7
million or 41.0% to $6.7 million, as compared to $11.4 million in 1996, as a
result of a decline in sales of video systems. Direct costs as a percentage of
video system sales and other revenues decreased to 57.9% in 1997 from 83.4% in
1996. The improved gross margin was largely due to higher margin on used systems
sold to Skylink and other revenues from equipment rental and video interactive
services, which have minimal direct costs.
Operation costs, which consist primarily of labor and material expense
required to maintain the existing equipment in hotels, increased $18.1 million
or 114.2% to $34.0 million in 1997, as compared to $15.9 million
16
<PAGE> 19
in 1996, and as a percentage of total revenue increased to 15.3% in 1997 from
10.8% in 1996. The increase was primarily due to the higher field service costs
necessary to support the acquired SpectraVision equipment.
Research and development expenses in 1997 increased $2.3 million or 49.4%
to $6.9 million as compared to $4.6 million in 1996. The reason for the increase
was due to the sustaining engineering support requirement of the SpectraVision
platforms and the development of the Company's new products and services. The
increase was primarily attributable to an increase in personnel and consulting
service costs of $1.6 million.
Selling, general, and administrative expenses increased $8.3 million or
59.2% to $22.3 million in 1997, as compared to $14.0 million in 1996, primarily
due to costs to support the Company's much larger room base, including the
SpectraVision hotels, costs associated with the integration of SpectraVision's
and OCV's accounting and operational systems and higher administrative costs
associated with being a public company with an expanded international presence.
Depreciation and amortization expense increased $25.7 million or 48.2% to
$79.0 million in 1997 from $53.3 million in 1996, and as a percentage of total
revenue decreased to 35.6% in 1997 from 36.1% in 1996. These expenses are
primarily attributable to depreciable assets associated with video systems that
generate movie revenue. The dollar increase reflects capital investments
associated with growing the OCV room base and with incremental depreciation and
amortization resulting from the acquisition of SpectraVision's in room assets
and intangible assets. The percentage decrease is primarily attributable to the
lower cost basis of the acquired SpectraVision assets.
Interest/Other expense net increased to $9.3 million in 1997, as compared
to $3.3 million in 1996. This increase was due to the Company's greater reliance
on debt financing to continue its expansion of its installed customer base, debt
used to complete the acquisition of SpectraVision and the write-down of a
minority investment in MagiNet Corporation to its estimated fair value.
Provision for income taxes increased to $0.8 million in 1997 from $0.2
million in 1996, an increase of $0.6 million. The income tax expense in 1997
represents tax on income in foreign jurisdictions. The Company's international
presence grew from approximately 13,000 rooms at January 1, 1996 to
approximately 120,000 rooms at December 31, 1997 primarily due to the
SpectraVision acquisition.
Redeemable common stock accretion was eliminated in 1997 as this security
was converted to Common Stock in 1996. The accretion in 1996 was $0.5 million.
EBITDA increased to $55.6 million in 1997 from $42.0 million in 1996 or an
increase of 32.5%. As a percentage of revenue, EBITDA decreased from 28.5% in
1996 to 25.0% in 1997. The major factor in this reduction was the increase in
operation cost percentage, explained above.
Net loss increased to $33.3 million in 1997 from $14.7 million in 1996 due
to the factors described above.
LIQUIDITY AND CAPITAL RESOURCES
The primary sources of cash during 1998 were net cash from operations of
$53.9 million, and net borrowings of $30.0 million from the Company's revolving
credit facility. Cash was invested primarily for capital expenditures which
totaled $83.2 million, primarily for the installation of on-demand systems in
new hotel installations and conversions of SpectraVision equipped hotels.
The Company's principal cash requirements in 1999 are expected to include
the continued conversion of SpectraVision properties to OCV's more dependable
on-demand technology, the installation of systems in new hotels, both
domestically and abroad, and the selected deployment of the Company's new
digital technology. The Company anticipates these activities will require
capital expenditures of approximately $65.0 to $90.0 million in 1999. The
Company believes that its internally generated cash and its remaining capacity
under its credit facility will provide sufficient funding for the foreseeable
future.
17
<PAGE> 20
REVOLVING CREDIT FACILITY
On November 24, 1997, the Company refinanced its former credit facility and
entered into an amended and restated agreement (the "Credit Facility"). Under
the amended Credit Facility, the amount available to the Company was increased
from $150.0 million to $200.0 million, and certain other terms were amended. The
Credit Facility matures in November 2002 and, subject to certain conditions, can
be renewed for two additional years. At December 31, 1998, there was $37.0
million of available borrowings under the Credit Facility, subject to certain
covenant restrictions.
LIMITATIONS ON ADDITIONAL DEBT FINANCING
On Command Corporation and Ascent entered into a Corporate Agreement, as
amended (the "Corporate Agreement"), pursuant to which OCC has agreed with
Ascent not to incur any indebtedness without Ascent's prior consent, other than
indebtedness under the Credit Facility, and indebtedness incurred in the
ordinary course of operations which together shall not exceed $182 million in
the aggregate through December 31, 1999.
FOREIGN EXCHANGE
The Company believes the risks of foreign exchange rate fluctuations on its
present operations are not material to the Company's overall financial
condition. However, should the Company's international operations continue to
grow, OCC will consider using foreign currency contracts, swap arrangements, or
other financial instruments designed to limit exposure to foreign exchange rate
fluctuations.
BUSINESS RISKS
CONTROL BY ASCENT
Ascent owned approximately 56.9% of the outstanding OCC Common Stock at
December 31, 1998. Accordingly, Ascent has the ability to control the management
and policies of On Command Corporation and the outcome of matters submitted to
the stockholders for approval, including the election of directors. In addition,
the Company and Ascent have entered into a Corporate Agreement which requires
the Company to get Ascent's approval with respect to incurring indebtedness and
issuing equity.
DEPENDENCE ON ADDITIONAL CAPITAL FOR GROWTH
The growth of On Command Corporation's business requires substantial
investment on a continuing basis to finance capital expenditures and related
expenses. Prior to the Acquisition, OCC has relied on capital provided by Ascent
and cash flow from operations to finance its growth. However, Ascent is not
obligated to provide any additional capital or debt financing to On Command
Corporation. On Command Corporation intends to use cash flow from operations and
additional borrowings (subject to the limitations discussed under "Limitations
on Additional Debt Financings") to support its growth. Whether or when On
Command Corporation can achieve cash flow levels sufficient to support its
anticipated growth cannot be accurately predicted. Unless such cash flow levels
are achieved, On Command Corporation may require additional borrowings or the
sale of debt or equity securities (subject to the limitations described under
"Limitations on Additional Debt Financings"), or some combination thereof, to
provide funding for growth or, alternatively, may have to reduce growth to a
level that can be supported by internally generated cash flow. On Command
Corporation can give no assurances with respect to the impact on the results of
operations and financial condition if On Command Corporation is required to
reduce growth to a level that can be supported by internally generated cash
flow.
THINLY TRADED STOCK IN THE PUBLIC MARKET AND POSSIBLE VOLATILITY OF STOCK PRICE
As approximately 43.1% of the outstanding On Command Common Stock, is
traded on the Nasdaq National Market as of March 3, 1999 the public market for
the OCC Common Stock and the On Command Corporation Warrants may not be subject
to an active public market which can be sustained. Further, the
18
<PAGE> 21
stock markets may experience volatility that affects the market prices of
companies in ways unrelated to the operating performance of such companies.
These market fluctuations may adversely affect the market price of the OCC
Common Stock or Warrants.
HIGHLY COMPETITIVE IN-ROOM ENTERTAINMENT INDUSTRY
The hotel in-room entertainment industry is highly competitive. Due to the
high level of penetration in the United States lodging industry already achieved
by participants in the in-room entertainment industry and the current rate of
construction and expansion of hotel properties in the United States, most of the
growth opportunities in the in-room entertainment industry currently involve
securing contracts to serve hotels that are already being served by a competing
vendor, expanding internationally and broadening the range of services provided.
These circumstances have led to increasing competition for contract renewals,
particularly at hotels operated by major hotel chains. There can be no assurance
that On Command Corporation will obtain new contracts with hotels currently
served by other vendors or that On Command Corporation will be able to retain
contracts with the hotels served by OCV and SpectraVision when those contracts
expire. The loss by On Command Corporation of one or more of the major hotel
chain customers, such as Marriott, Hyatt, Holiday Inn or Hilton, could have a
material adverse impact on On Command Corporation's results of operations. See
"Dependence on Significant Customers." In addition, there are a number of
potential competitors that could utilize their existing infrastructure to
provide in-room entertainment to the lodging industry, including cable companies
(including wireless cable), telecommunications companies, and direct-to-home and
direct broadcast satellite companies. Some of these potential competitors
already are providing free-to-guest services to hotels and testing
video-on-demand. Some of these potential competitors have substantially greater
resources than On Command Corporation.
DEPENDENCE ON SIGNIFICANT CUSTOMERS
Marriott, Holiday Inn and Hilton accounted for approximately 24%, 11% and
10%, respectively, of On Command Corporation's revenues for the year ended
December 31, 1998. The loss of any of these customers, or the loss of a
significant number of other hotel chain customers, could have a material adverse
effect on On Command Corporation's results of operations or financial condition.
However, these customers represent both chain-owned managed hotels, as well as
franchisees. The Company often has different contracts on different terms with
the chain-owned/managed hotels, on the one hand, and with the franchisees (or
groups of franchisees), on the other.
DEPENDENCE ON PERFORMANCE OF LODGING INDUSTRY
On Command's business is closely linked to the performance of the hotel
industry in which overall occupancy has been declining recently, though not as
significantly as many of the luxury and business hotels served by OCC. Declines
in hotel occupancy as a result of general business, economic, seasonal and other
factors can have a significant adverse impact on On Command Corporation's
results of operations.
RISK OF TECHNOLOGICAL OBSOLESCENCE
Technology in the entertainment and communications industry is continuously
changing as new technologies and developments continue to be introduced. There
can be no assurance that future technological advances will not result in
improved equipment or software systems that could adversely affect On Command
Corporation's competitive position. In order to remain competitive, On Command
Corporation must maintain the programming enhancements, engineering and
technical capability and flexibility to respond to customer demands for new or
improved versions of its systems and new technological developments, and there
can be no assurance that On Command Corporation will have the financial or
technological resources to be successful in doing so.
19
<PAGE> 22
DEPENDENCE ON KEY PERSONNEL
On Command Corporation's success will be dependent upon the contributions
of its executive officers, especially Brian A.C. Steel, its President, and Chief
Operating Officer. The loss of the services of such executive officers could
have a material adverse effect on On Command Corporation. On Command
Corporation's success also depends on its continued ability to attract and
retain highly skilled and qualified personnel. There can be no assurance that On
Command Corporation or its subsidiaries will be successful in attracting and
retaining such personnel. Mr. Steel has entered into an employment agreement
with On Command Corporation through 1999.
SEASONALITY
The business of On Command Corporation is seasonal, with higher revenues
per room realized during the summer months and lower revenues per room realized
during the winter months due to business and vacation travel patterns.
ANTI-TAKEOVER PROTECTIONS
Ascent owns approximately 56.9% of the OCC Common Stock at December 31,
1998, before giving effect to the exercise of any Warrants. Accordingly, On
Command Corporation will not be able to engage in any strategic transactions
without the approval of Ascent. Even if Ascent's interest in On Command
Corporation were reduced below such level, On Command Corporation's Certificate
of Incorporation contains certain provisions that could make it more difficult
for a third party to acquire, or discourage a third party from attempting to
acquire, control of On Command Corporation. Such provisions could limit the
price that certain investors might be willing to pay in the future for shares of
OCC Common Stock. Certain of such provisions allow On Command Corporation to
issue preferred stock with rights senior to those of the OCC Common Stock and
impose various procedural and other requirements which could make it more
difficult for stockholders to effect certain corporate actions.
PROGRAMMING
The cost to the Company to license feature movies from major movie studios
is subject to change as the major movie studios continue to negotiate for higher
royalty rates as well as higher minimum payments by the Company. Such changes
may have adverse impacts on the Company's earnings. While the Company intends to
address such trends, there can be no assurance that the Company's efforts will
prove effective.
YEAR 2000
The year 2000 issue is the result of certain computer programs being
written using two digits rather than four digits to define the application year,
such that computer programs that are date sensitive may recognize a date using
"00" as the Year 1900 rather than the Year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions or engage in normal
business activities for both the Company and its customers who rely on its
products.
The Company is actively engaged, but has not yet completed, reviewing,
correcting and testing all of the Year 2000 compliance issues. Based on the
current review and remediation, the Company has determined that it will be
required to modify or replace some of its internally developed IT software
products. The Company utilizes embedded technology in all of its hotel system
design. The Company's engineering department has completed the majority of its
evaluation process and is currently developing solutions to the Year 2000 issues
affecting the hotel systems. In addition, the Company has also determined that
it will be required to modify and/or replace certain third-party software so
that it will function properly with respect to dates in the Year 2000 and
thereafter. The Company presently believes that with the proper modifications,
the Year 2000 issue will not pose significant operational problems for the
Company or its customers.
20
<PAGE> 23
The Company is currently on schedule to complete all Year 2000 issues by
June 1999. However, if such modifications and replacements are not made, or not
completed timely, the Year 2000 issue could have a material impact on the
Company and its customers.
The total cost to the Company for addressing its Year 2000 issues is
estimated to be less than $1 million with less than $100,000 incurred through
December 31, 1998. The costs of Year 2000 compliance and the date on which the
Company plans to complete the Year 2000 modifications are based on management's
best estimates, which were derived utilizing numerous assumptions including
third parties' Year 2000 readiness and other factors.
The Company has and will continue to have communications with its
significant suppliers and customers to determine the extent to which the Company
may be vulnerable in the event that those parties fail to properly address their
own Year 2000 issues. The Company has taken steps to monitor the progress made
by those parties, and intends to test critical system interfaces, as the Year
2000 approaches. There is some unknown level of risk based upon the compliance
issue affecting a given hotel, and generally this should be limited to a
specific hotel. Conditions that make a hotel unable to take in guests would
affect the Company's revenue. A large number of the Company's systems are
interfaced with the hotel's property management system. If this interface fails
all movie charges will require manual processing. Processes to perform this are
in place in all hotels and are occasionally utilized at times when the property
management system interface is not functioning. This typically causes a slightly
higher number of lost charges, which could be material if applied to a large
number of customers.
While the Company has not completed a formal contingency plan for the Year
2000 problem, it has evaluated several anticipated scenarios for failures
affecting both its critical business systems and hotel systems. It is
management's opinion that any of the potential scenarios can be managed by
manual means, although less efficient, while the necessary corrective action is
taken. However, there can be no guarantee that the systems of third parties on
which the Company relies will be corrected in a timely manner, that manual
processing of the Company's movie charges would be accomplished, or that the
failure to properly convert by another company would not have a material adverse
effect on the Company.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to market risk from changes in interest rates, which
could impact its results of operations and financial condition, particularly,
the Company's interest expense and cash flow. The Company does not hedge this
exposure. Revolving loans extended under the Credit Facility generally bear an
interest rate that is variable and based on the London Interbank Offering Rate
("LIBOR") and on certain operating ratios of the Company. At December 31, 1998,
the Company had $163.0 million outstanding on the Credit Facility and the
weighted average interest rate on the Credit Facility was 5.9%. Assuming no
increase or decrease in the amount outstanding, a hypothetical immediate 100
basis point increase (or decrease) in interest rates at December 31, 1998 would
increase (or decrease), the Company's annual interest expense and cash outflow
by approximately $1.6 million.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Independent Auditors' Report
Consolidated Balance Sheets at December 31, 1998 and 1997
Consolidated Statements of Operations for the years ended December 31,
1998, 1997 and 1996
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 1998, 1997 and 1996
Consolidated Statements of Comprehensive Loss for the years ended December
31, 1998, 1997 and 1996
Consolidated Statements of Cash Flows for the years ended December 31,
1998, 1997 and 1996
Notes to the Consolidated Financial Statements
Quarterly Results of Operations for the years ended December 31, 1998 and
1997
21
<PAGE> 24
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of
On Command Corporation:
We have audited the accompanying consolidated balance sheets of On Command
Corporation (a majority-owned subsidiary of Ascent Entertainment Group, Inc.)
and subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of operations, stockholders' equity, comprehensive loss and cash
flows for each of the three years in the period ended December 31, 1998. Our
audits also included the financial statement schedule listed in the Index at
Item 14(a)(2). These financial statements and financial statement schedule are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements and financial statement schedule based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of On Command Corporation and
subsidiaries as of December 31, 1998 and 1997, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1998 in conformity with generally accepted accounting principles.
Also, in our opinion, such financial statement schedule, when considered in
relation to the basic financial statements taken as a whole, presents fairly in
all material respects the information set forth therein.
LOGO
San Jose, California
February 3, 1999
22
<PAGE> 25
ON COMMAND CORPORATION
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1998 AND 1997
ASSETS
<TABLE>
<CAPTION>
1998 1997
--------- ---------
(IN THOUSANDS, EXCEPT
PAR VALUE AMOUNTS)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents................................. $ 7,235 $ 6,287
Accounts receivable (less allowance for doubtful accounts
of $1,484 in 1998 and $1,630 in 1997).................. 32,167 26,827
Other current assets...................................... 2,633 1,959
-------- --------
Total current assets.............................. 42,035 35,073
VIDEO SYSTEMS, Net.......................................... 267,880 270,531
PROPERTY AND EQUIPMENT, Net................................. 11,829 7,850
GOODWILL, Net............................................... 77,674 82,049
OTHER ASSETS, Net........................................... 3,550 5,885
-------- --------
$402,968 $401,388
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable.......................................... $ 23,305 $ 20,051
Accounts payable to stockholder........................... 138 104
Accrued compensation...................................... 5,916 5,805
Other accrued liabilities................................. 11,977 9,763
Taxes payable............................................. 7,632 11,333
-------- --------
Total current liabilities......................... 48,968 47,056
OTHER ACCRUED LIABILITIES................................... 995 4,165
LONG-TERM PORTION OF REVOLVING CREDIT FACILITY.............. 163,000 133,000
-------- --------
Total liabilities................................. 212,963 184,221
COMMITMENTS AND CONTINGENCIES (Notes 7 and 14)
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value; shares
authorized -- 10,000; none outstanding -- --
Common stock, $.01 par value; shares authorized -- 50,000
in 1998 and 1997; shares issued and outstanding, 30,171
in 1998 and 29,801 in 1997;
shares subscribed -- 2 in 1998 and 315 in 1997......... 302 301
Additional paid-in capital................................ 249,809 249,431
Common stock warrants..................................... 31,450 31,450
Accumulated other comprehensive loss...................... (2,539) (964)
Accumulated deficit....................................... (89,017) (63,051)
-------- --------
Total stockholders' equity........................ 190,005 217,167
-------- --------
$402,968 $401,388
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
23
<PAGE> 26
ON COMMAND CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(IN THOUSANDS,
EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C>
REVENUES:
Room revenues............................................. $227,177 $210,493 $133,813
Video systems sales/other................................. 11,643 11,610 13,656
-------- -------- --------
Total revenues (see Note 10 for related party
revenues)....................................... 238,820 222,103 147,469
-------- -------- --------
DIRECT COSTS OF REVENUES:
Room revenues............................................. 98,999 96,617 59,628
Video systems sales/other................................. 4,903 6,726 11,391
-------- -------- --------
Total direct costs of revenues.................... 103,902 103,343 71,019
-------- -------- --------
OPERATING EXPENSES:
Operations................................................ 31,301 33,993 15,870
Research and development.................................. 7,537 6,912 4,628
Selling, general and administrative....................... 24,031 22,277 13,992
Depreciation and amortization............................. 88,199 78,984 53,280
-------- -------- --------
Total operating expenses.......................... 151,068 142,166 87,770
-------- -------- --------
LOSS FROM OPERATIONS........................................ (16,150) (23,406) (11,320)
INTEREST INCOME............................................. 503 155 104
INTEREST/OTHER EXPENSE...................................... (10,428) (9,277) (3,349)
-------- -------- --------
LOSS BEFORE INCOME TAXES.................................... (26,075) (32,528) (14,565)
PROVISION (BENEFIT) FOR INCOME TAXES........................ (109) 786 174
-------- -------- --------
NET LOSS.................................................... (25,966) (33,314) (14,739)
REDEEMABLE COMMON STOCK ACCRETION........................... -- -- (483)
-------- -------- --------
NET LOSS APPLICABLE TO
NONREDEEMABLE COMMON STOCK................................ $(25,966) $(33,314) $(15,222)
======== ======== ========
BASIC AND DILUTED NET LOSS PER SHARE........................ $ (0.86) $ (1.11) $ (0.67)
======== ======== ========
SHARES USED IN BASIC AND DILUTED PER SHARE COMPUTATIONS..... 30,150 30,081 22,625
======== ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
24
<PAGE> 27
ON COMMAND CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
ACCUM.
COMMON STOCK ADDITIONAL COMMON OTHER RETAINED TOTAL
--------------- PAID-IN STOCK COMP. EARNINGS STOCKHOLDERS'
SHARES AMOUNT CAPITAL WARRANTS LOSS (DEFICIT) EQUITY
------ ------ ---------- -------- ------- --------- -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCES, January 1, 1996............ 20,669 $207 $165,521 $ 840 -- $ 3,236 $169,804
Issuance of common stock and warrants
in connection with the acquisition
of SpectraVision................... 8,250 82 57,627 24,353 82,062
Exercise of stock options and
warrants........................... 1,298 13 12,319 (840) 11,492
Income tax benefit of stock option
transactions....................... 143 143
Dividends............................ 7,097 (17,751) (10,654)
Accretion of redeemable common
stock.............................. (483) (483)
Conversion of redeemable common
stock.............................. 1,166 11 12,156 12,167
Cancellation of common stock issued
and additional contribution of
assets by Ascent (see Note 10)..... (1,336) (13) 1,398 1,385
Translation adjustments.............. (260) (260)
Net loss............................. (14,739) (14,739)
------ ---- -------- ------- ------- -------- --------
BALANCES, December 31, 1996.......... 30,047 300 249,164 31,450 (260) (29,737) 250,917
Exercise of stock options............ 67 1 238 239
Issuance of common stock under ESP
plan (see Note 8).................. 2 29 29
Translation adjustment............... (704) (704)
Net loss............................. (33,314) (33,314)
------ ---- -------- ------- ------- -------- --------
BALANCES, December 31, 1997.......... 30,116 301 249,431 31,450 (964) (63,051) 217,167
Exercise of stock options............ 42 1 236 237
Issuance of common stock under ESP
plan (see Note 8).................. 15 142 142
Translation adjustment............... (1,575) (1,575)
Net loss............................. (25,966) (25,966)
------ ---- -------- ------- ------- -------- --------
BALANCES, December 31, 1998.......... 30,173 $302 $249,809 $31,450 $(2,539) $(89,017) $190,005
====== ==== ======== ======= ======= ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
25
<PAGE> 28
ON COMMAND CORPORATION
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Net loss................................................... $(25,966) $(33,314) $(14,739)
Translation adjustments.................................... (1,575) (704) (260)
-------- -------- --------
Comprehensive loss......................................... $(27,541) $(34,018) $(14,999)
======== ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
26
<PAGE> 29
ON COMMAND CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss.................................................. $(25,966) $(33,314) $(14,739)
Adjustments to reconcile net loss to net cash provided by
operating activities:
Depreciation and amortization........................... 88,278 78,984 53,280
Deferred income taxes, net.............................. -- (47) 195
Provision for loss on long term investment.............. -- 917
(Gain)/Loss on disposal of fixed assets................. 72 (844) 64
Changes in assets and liabilities net of effects from
acquired operations:
Accounts receivable................................... (5,439) (1,584) (962)
Other current assets.................................. 7 1,420 (1,024)
Accounts payable...................................... 3,269 3,246 (5,542)
Accounts payable to stockholder....................... 34 83 (185)
Accrued compensation.................................. (121) 880 1,950
Other accrued liabilities............................. (2,735) 5,395 (3,342)
Taxes payable......................................... (3,486) (1,655) 13,089
-------- -------- --------
Net cash provided by operating activities.......... 53,913 53,481 42,784
-------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Net cash paid in acquisition of SpectraVision............. -- -- (9,572)
Capital expenditures...................................... (83,208) (92,307) (70,545)
Proceeds from sale of property and equipment.............. -- 4,263 46
Other assets.............................................. -- -- (434)
-------- -------- --------
Net cash used in investing activities.............. (83,208) (88,044) (80,505)
-------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from borrowings under credit facility............ 30,000 165,000 97,625
Payment of former credit facility......................... -- (130,000) --
Payment of SpectraVision debt............................. -- -- (40,000)
Proceeds from stockholders' notes payable................. -- -- 22,526
Principal payments on stockholders' notes payable......... -- -- (38,468)
Proceeds from issuance of common stock.................... 379 268 2,587
Dividends paid............................................ -- -- (1,749)
-------- -------- --------
Net cash provided by financing activities.......... 30,379 35,268 42,521
-------- -------- --------
EFFECT OF EXCHANGE RATE CHANGES ON CASH..................... (136) (151) (23)
-------- -------- --------
NET INCREASE IN CASH AND CASH EQUIVALENTS................... 948 554 4,777
CASH AND CASH EQUIVALENTS, Beginning of year................ 6,287 5,733 956
-------- -------- --------
CASH AND CASH EQUIVALENTS, End of year...................... $ 7,235 $ 6,287 $ 5,733
======== ======== ========
SUPPLEMENTAL INFORMATION:
Cash paid for income taxes................................ $ -- $ 1,012 $ --
-------- -------- --------
Cash paid for interest.................................... $ 9,597 $ 6,832 $ 2,702
-------- -------- --------
NONCASH INVESTING AND FINANCING ACTIVITIES:
Net assets acquired from contribution agreement with
Ascent.................................................. $ -- $ -- $ 1,385
-------- -------- --------
Common stock issued for note receivable................... $ -- $ -- $ 8,905
-------- -------- --------
Reversal of accrual made in purchase price allocation..... $ -- $ 3,000 $ --
-------- -------- --------
Dividends paid through issuance of note and common stock
warrants................................................ $ -- $ -- $ 16,002
-------- -------- --------
Acquisition of SpectraVision:
Fair value of assets acquired (including intangibles of
$89,636).............................................. $ -- $ -- $155,916
Liabilities assumed..................................... -- -- (64,282)
Acquisition costs paid.................................. -- -- (5,829)
Net cash paid........................................... -- -- (3,743)
-------- -------- --------
Common stock and warrants issued........................ $ -- $ -- $ 82,062
======== ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
27
<PAGE> 30
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
1. BASIS OF PRESENTATION
On Command Corporation (the "Company" or "OCC") is a Delaware corporation
formed by Ascent Entertainment Group, Inc. ("Ascent") for the purpose of
effecting (i) the merger (the "Merger") of On Command Video Corporation ("OCV"),
a majority-owned subsidiary of Ascent, with a wholly-owned subsidiary of OCC,
after which OCV became a wholly-owned subsidiary of OCC, and (ii) the
acquisition (the "Acquisition") of Spectradyne, Inc., a wholly-owned subsidiary
of SpectraVision, Inc. ("Oldco"). Following the Acquisition, Spectradyne, Inc.
changed its name to SpectraVision, Inc. ("SpectraVision"). Ascent had been a
majority-owned subsidiary of COMSAT Corporation ("COMSAT") and on June 27, 1997,
COMSAT consummated the distribution of its 80.67% ownership interest in Ascent
to the COMSAT shareholders on a pro-rata basis in a transaction that was
tax-free for federal income tax purposes (the "Distribution").
Effective October 8, 1996, the Merger and Acquisition were consummated. The
Merger has been accounted for using the historical book value of the assets,
liabilities and stockholders' equity acquired from OCV in a manner similar to a
pooling of interests and the Acquisition was accounted for as a purchase using
the fair value of the assets acquired and liabilities assumed from Oldco.
Accordingly, the consolidated financial statements of the Company include the
historical results of operations and cash flows of OCV as well as the acquired
operations of SpectraVision subsequent to the date of acquisition. Per share
amounts and number of shares have been restated to reflect the 2.84 shares of
OCC common stock received for every share of OCV common stock previously held.
Prior to the Merger and Acquisition, OCC had no significant operations. (See
Note 3 for additional discussion of the business combination.)
2. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND NATURE OF BUSINESS -- The Company designs, develops,
manufactures and installs proprietary video systems. The Company's primary video
system is OCV's patented video selection and distribution system that allows
hotel guests to select motion pictures on computer-controlled television sets
located in their hotel rooms at any time. The Company also provides in-room
viewing of free-to-guest programming of select cable channels and other
interactive services under long-term contracts to hotels and businesses. The
Company has operating subsidiaries or branches in the United States, Canada,
Mexico, Hong Kong, Singapore, Thailand, Australia, Spain and the United Kingdom.
All significant intercompany accounts and transactions have been eliminated.
CASH AND CASH EQUIVALENTS -- The Company considers all highly liquid debt
instruments, with insignificant interest rate risk, acquired with an original
maturity of less than three months to be cash equivalents. Cash equivalents
consist primarily of certificates of deposit and bank savings accounts.
VIDEO SYSTEMS, PROPERTY AND EQUIPMENT -- Video systems and property and
equipment are stated at cost less accumulated depreciation and amortization.
Installed video systems consist of equipment and related costs of installation
at hotel locations. Construction in progress consists of purchased and
manufactured parts of partially constructed video systems. Depreciation and
amortization are provided using the straight-line method over the shorter of the
estimated useful lives, generally three to twenty years, or lease terms. Video
Systems and equipment acquired from the SpectraVision Acquisition are being
depreciated over 36 months.
OTHER ASSETS -- Other assets consist of payments made to customers as
inducements for them to enter into contracts with the Company for the
installation of pay-per-view video systems. These assets are amortized on a
straight-line basis over the term of the contracts, five to seven years.
Additionally, other assets at December 31, 1998 and 1997 include an investment
of $348,000 in MagiNet Corporation (See Note 10 for additional discussion on
MagiNet) and approximately $610,000 and $1,283,000 at December 31, 1998 and
1997, respectively, for technology acquired in the SpectraVision Acquisition
(net of amortization recorded on
28
<PAGE> 31
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
a straight-line basis over three years). The investment in MagiNet was reduced
by $917,000 in 1997 from an original cost of $1,265,000 due to a dilution of the
Company's ownership in MagiNet. (See Note 10 for additional discussion on
MagiNet.)
GOODWILL -- Goodwill resulted from the SpectraVision Acquisition, as
described in Note 3, and represents the excess of the aggregate purchase price
over the fair value of net assets acquired. The goodwill is being amortized over
20 years using the straight-line method. Amortization expense was $4,376,000,
$4,454,000, and $1,133,000 in 1998, 1997 and 1996, respectively.
EVALUATION OF LONG-LIVED ASSETS -- The Company evaluates the potential
impairment of long-lived assets and long-lived assets to be disposed of in
accordance with Statement of Financial Accounting Standards No. 121, "Accounting
for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
Of". As of December 31, 1998 and 1997, management believes that there was not
any impairment of the Company's long-lived assets or other identifiable
intangibles.
REVENUE RECOGNITION -- The Company installs pay-per-view video systems in
hotels, generally under five-to seven-year agreements, whereby it recognizes
revenues at the time of viewing. Revenue from the sale of video systems is
recognized when the equipment is shipped, except for systems requiring
installation by the Company, which is recognized upon completion of the
installation. Revenues from video management services and royalties are
recognized when earned and payment is considered probable.
STOCK-BASED COMPENSATION -- The Company accounts for stock-based awards to
employees using the intrinsic value method in accordance with APB Opinion No.
25, Accounting for Stock Issued to Employees.
NET LOSS PER SHARE -- Basic loss per share excludes dilution and is
computed by dividing net loss applicable to nonredeemable common stock by the
weighted-average number of common shares outstanding for the period. Diluted
loss per share reflects the potential dilution that could occur if securities or
other contracts to issue common stock were exercised or converted into common
stock. Common shares equivalent are excluded from the computations in loss
periods as their effect would be antidilutive. For the years ended December 31,
1998, 1997 and 1996 approximately 10.1 million, 9.9 million and 9.7 million
equivalent dilutive securities (primarily common stock options and warrants),
respectively, have been excluded in weighted-average number of common shares
outstanding for the diluted net loss per share computation as common stock
equivalents.
FAIR VALUE OF FINANCIAL INSTRUMENTS -- The carrying amounts of cash and
cash equivalents, accounts receivable and accounts payable approximate fair
value because of the short-term maturity of these instruments. The fair value of
the revolving credit facility approximates its carrying amount based on the
current rate offered to the Company for debt of the same remaining maturities.
FOREIGN CURRENCY TRANSLATION -- For translation of its foreign currencies,
the Company has determined that the local currencies of its international
subsidiaries are the functional currencies. Assets and liabilities of the
international subsidiaries are translated at the rate of exchange in effect at
period end. Results of operations are translated at the approximate rate of
exchange in effect during the period. Translation adjustments are included
within stockholders' equity. Balances of international subsidiaries denominated
in currencies other than the functional currency are restated at the rate of
exchange at year end and any resulting gains or losses are included in the
results of operations.
USE OF ESTIMATES, CERTAIN SIGNIFICANT RISKS AND UNCERTAINTIES -- The
preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period. Such
management estimates include the allowance for doubtful accounts receivable, the
29
<PAGE> 32
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
estimated useful lives of video systems, property and equipment and intangible
assets, including goodwill, reducing construction in progress to its net
realizable value and the amounts of certain accrued liabilities.
The Company participates in the highly competitive in-room entertainment
industry and believes that changes in any of the following areas could have a
material adverse effect on the Company's future financial position or results of
operations: decline in hotel occupancy as a result of general business,
economic, seasonal or other factors; loss of one or more major hotel chain
customers; ability to obtain additional capital to finance capital expenditures;
ability to maintain compliance with Credit Facility covenants; ability to retain
senior management and key employees; ability to convert operational computer
software to be Year 2000 compliant; and risks of technological developments.
RECENTLY ISSUED ACCOUNTING STANDARDS -- In 1998, the Company adopted
Statement of Financial Accounting Standards ("SFAS") No. 130, "Reporting
Comprehensive Income," which requires an enterprise to report, by major
components and as a single total, the change in net assets during the period
from nonowner sources. Statements of comprehensive loss have been presented for
the years ended December 31, 1998, 1997 and 1996.
In 1998, the Company early adopted Statement of Position ("SOP") 98-1,
"Accounting for the Costs of Computer Software Developed or Obtained for
Internal Use," which provides guidance on accounting for the costs of computer
software developed or obtained for internal use. In 1998, the Company
capitalized $4,100,000 of costs in accordance with this SOP.
In 1998, the Company adopted SFAS No. 131, "Disclosures about Segments of
an Enterprise and Related Information," which establishes annual and interim
reporting standards for an enterprise's business segments and related
disclosures about its products, services, geographic areas and major customers.
The Company operates in one reportable segment (see Note 12).
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." This statement
requires companies to record derivatives on the balance sheet as assets or
liabilities, measured at fair value. Gains or losses resulting from changes in
the values of those derivatives would be accounted for depending on the use of
the derivative and whether it qualifies for hedge accounting. SFAS No. 133 will
be effective for the Company's fiscal year ending December 31, 2000. Management
believes that this statement will not have a significant impact on the Company's
financial position, results of operations or cash flows.
RECLASSIFICATIONS -- Certain prior year amounts have been reclassified to
conform to the current year presentation. These reclassifications had no effect
on net loss or total stockholders' equity.
3. BUSINESS COMBINATION
As discussed in Note 1, effective October 8, 1996 (the "Closing Date"), the
Company acquired all of the outstanding capital stock of SpectraVision, the
primary operating subsidiary of Oldco, together with certain other assets of
Oldco and its affiliates.
The stockholders of OCV received 21,762,000 shares of OCC common stock
(72.5% of the initial OCC common stock). In consideration for the acquisition of
the net assets and properties of SpectraVision by OCC, OCC paid $4 million in
cash and issued 8,238,000 shares of OCC common stock to the Oldco bankruptcy
estate for distribution to Oldco's creditors. Ascent owned approximately 57% of
the outstanding common stock of OCC at December 31, 1998.
In connection with the Acquisition and 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 seven years and an exercise price of
$15.27 per
30
<PAGE> 33
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
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 1,123,823 shares;
Series B warrants to purchase for cash an aggregate of 2,625,000 shares of OCC
common stock were issued to the Oldco bankruptcy estate for distribution to
creditors; and $4 million in cash was paid and Series C warrants were issued to
OCC's investment advisor to purchase for cash an aggregate of 3,450,000 shares
of OCC common stock in consideration for certain banking and advisory services
provided in connection with the transactions. The fair value of the Series A
warrants has been recognized as a dividend to the former OCV stockholders while
the fair value of Series B and Series C warrants has been accounted for as a
cost of the Acquisition. Subsequent to the Acquisition, OCC's investment advisor
obtained a seat on the Company's Board of Directors.
The Acquisition was accounted for using the purchase method of accounting.
Accordingly, a portion of the purchase price was allocated to the net assets
acquired based on their estimated fair values. The fair value of tangible assets
acquired and liabilities assumed was $66 million and $64 million, respectively.
In addition, $2 million of the purchase price was allocated to purchased
technology. The balance of the purchase price, $87.6 million, was recorded as
goodwill and is being amortized over twenty years on a straight-line basis.
The reported results of operations of the Company for the year ended
December 31, 1996 includes the operating results of SpectraVision since the date
of the Acquisition. Unaudited pro forma results of operations as if the
Acquisition had occurred at the beginning of fiscal year 1996 is as follows (in
thousands except per share amounts):
<TABLE>
<CAPTION>
1996
--------
<S> <C>
Total revenues.............................................. $232,817
Net loss.................................................... (25,683)
Basic and diluted net loss per share........................ (0.83)
</TABLE>
The pro forma combination of the companies is for presentation purposes
only and is not necessarily indicative of the actual results of operations had
the Acquisition occurred on January 1, 1996.
4. VIDEO SYSTEMS
Video systems at December 31 consist of the following (in thousands):
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
Installed video systems.............................. $ 459,178 $ 383,393
Construction in progress............................. 46,431 51,204
--------- ---------
505,609 434,597
Accumulated depreciation............................. (237,729) (164,066)
--------- ---------
Video systems, net................................... $ 267,880 $ 270,531
========= =========
</TABLE>
31
<PAGE> 34
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
5. PROPERTY AND EQUIPMENT
Property and equipment at December 31 consist of the following (in
thousands):
<TABLE>
<CAPTION>
1998 1997
------- -------
<S> <C> <C>
Furniture and fixtures................................... $ 4,377 $ 4,317
Machinery, computer equipment and software............... 15,568 8,891
Buildings and leasehold improvements..................... 1,453 1,008
------- -------
21,398 14,216
Accumulated depreciation and amortization................ (9,569) (6,366)
------- -------
Property and equipment, net.............................. $11,829 $ 7,850
======= =======
</TABLE>
6. NOTES PAYABLE
The Company currently has a $200 million credit facility (the "Credit
Facility"). The Credit Facility matures in November 2002 and, subject to certain
conditions, can be renewed for two additional years. At December 31, 1998, there
was $37 million of available borrowings under the Credit Facility, subject to
certain covenant restrictions.
Revolving loans extended under the Credit Facility bear interest at the
London Interbank Offering Rate ("LIBOR") plus a spread that may range from
0.375% to 0.75% depending on certain operating ratios of the Company. At
December 31, 1998, the weighted average interest rate on the Credit Facility was
5.9%. In addition, a fee ranging from 0.1875% to 0.25% per annum is charged on
the unused portion of the Credit Facility, depending on certain operating ratios
of the Company. The Credit Facility contains customary covenants and agreements,
most notably, the inclusion of restrictions on the Company's ability to pay
dividends or make other distributions as well as leverage and interest coverage
covenants. The Company was in compliance with such covenants at December 31,
1998.
7. COMMITMENTS
OPERATING LEASES
The Company leases its principal facilities under a noncancelable operating
lease which expires in December 2003. In addition to lease payments, the Company
is responsible for taxes, insurance and maintenance of the leased premises. The
Company also leases certain other office space and equipment. These operating
leases expire at dates ranging from 1999 to 2004.
Rental payments for the Company's principal facility were approximately
$1,553,000, $1,303,000, and $538,000 during the years ended December 31, 1998,
1997 and 1996, respectively. In 1997 and 1996 the owner of this facility was a
minority stockholder. Rental expense under all operating leases was
approximately $5,100,000, $4,400,000, and $3,892,000 for the years ended
December 31, 1998, 1997 and 1996, respectively.
32
<PAGE> 35
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
Future minimum annual payments under noncancelable operating leases at
December 31, 1998 are as follows (in thousands):
<TABLE>
<S> <C>
1999............................................... $ 5,884
2000............................................... 2,741
2001............................................... 1,968
2002............................................... 1,783
2003............................................... 1,773
Thereafter......................................... 893
-------
Total.............................................. $15,042
=======
</TABLE>
The above amounts include a total of $1,580,000 of payments to be made
during 1999 for a lease that was written off during 1997.
PURCHASE COMMITMENTS
Noncancelable commitments for the purchase of video systems and office
equipment amounted to approximately $7,100,000 at December 31, 1998.
8. STOCKHOLDERS' EQUITY
COMMON STOCK SUBSCRIBED
As of December 31, 1998 and 1997, there were approximately 1,500 shares and
315,000 shares, respectively, of common stock and related warrants that had not
been issued as certain of the former OCV and the SpectraVision estate had not
yet exchanged their interest in connection with the Merger and Acquisition. Such
shares are considered to be subscribed common stock and have been included in
the earnings per share computations.
DIVIDENDS
In August 1996, OCV declared a dividend equal to the proceeds from the
exercise of the Hilton Warrants (see Note 10) to be paid to stockholders of
record as of September 18, 1996. The dividend was contingent upon the exercise
of Hilton Warrants. Accordingly, on October 7, 1996, when Hilton exercised its
warrants, a dividend was distributed to the OCV stockholders through the
assignment to Ascent of the $8.9 million promissory note received from Hilton
and cash of $1.8 million was paid to the minority stockholders.
As stated in Note 3, the fair value of the Series A warrants issued to the
former OCV stockholders has been recorded as a dividend in 1996.
STOCK OPTION PLAN
The Company adopted a stock option plan (the 1996 Plan), expiring in 2006,
under which employees may be granted incentive or nonstatutory stock options for
the purchase of common stock of the Company. In addition, restricted stock
purchases, performance awards, dividend equivalents, stock payment or
appreciation rights or deferred stock may be granted under the plan. A total of
3,000,000 shares were initially reserved for the plan.
The exercise price is set by the Company's Board of Directors. Incentive
stock options are granted at no less than fair market value on the date of
grant. Options generally expire in ten years, vest over a five-year period and
are exercisable in installments of 20% one year from the date of grant and 5%
quarterly thereafter. Unvested options are canceled upon termination of
employment.
33
<PAGE> 36
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
Under employment agreements with certain officers, 1,426,874 options were
granted in 1996 with a three-year vesting period. The shares become exercisable
as follows: 25% one year from date of grant, 25% after two years and 50% after
three years. During 1998, 1,041,562 of such options were cancelled.
1997 NON-EMPLOYEE DIRECTORS STOCK PLAN
In May 1997, the Company adopted the Company's 1997 Non-Employee Directors
Stock Plan ("Directors Plan"). The Directors Plan authorizes the granting of an
award of 400 shares of the Company's common stock and a non-qualified option to
purchase 4,000 shares of the Company's common stock (a "Director Option") to
each Independent Director on an annual basis. The aggregate number of shares of
the Company's Common Stock which may be issued upon exercise of Directors
Options granted under the Directors Plan plus the number of shares which may be
awarded pursuant to the Directors Plan will not exceed 110,000, subject to
adjustment to reflect events such as stock dividends, stock splits,
recapitalizations, mergers or reorganizations of or by the Company. In 1998,
12,000 options were granted. No options were granted in 1997.
The following is a summary of changes in shares under all of the Company's
Stock Option Plans:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING
----------------------------
OPTIONS WEIGHTED
AVAILABLE NUMBER AVERAGE
FOR GRANT OF SHARES EXERCISE PRICE
---------- ---------- --------------
<S> <C> <C> <C>
Balances, January 1, 1996 (280,500 exercisable at a
weighted-average price of $6.72).................... 263,793 453,409 $ 7.31
Additional shares authorized.......................... 2,288,478 --
Granted (weighted-average fair value of $7.33)........ (1,781,074) 1,781,074 15.60
Exercised............................................. -- (52,918) 4.62
---------- ----------
Balances, December 31, 1996 (314,345 exercisable at a
weighted-average price of $7.30).................... 771,197 2,181,565 14.14
Granted (weighted-average fair value of $3.96)........ (324,000) 324,000 11.54
Exercised............................................. -- (68,506) 5.22
Canceled.............................................. 63,250 (63,250) 12.63
---------- ----------
Balances, December 31, 1997 (814,178 exercisable at a
weighted-average fair value of $12.95).............. 510,447 2,373,809 14.09
========== ==========
Granted (weighted-average fair value of $4.62)........ (644,196) 644,196 13.22
Exercised............................................. -- (41,218) 6.00
Canceled.............................................. 1,236,312 (1,236,312) 15.26
---------- ----------
Balances, December 31, 1998........................... 1,102,563 1,740,475 $13.13
========== ==========
</TABLE>
34
<PAGE> 37
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
Additional information regarding options outstanding as of December 31,
1998 is as follows:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING
------------------------ OPTIONS EXERCISABLE
WEIGHTED -----------------------
AVERAGE WEIGHTED WEIGHTED
REMAINING AVERAGE AVERAGE
RANGE OF NUMBER CONTRACTUAL EXERCISE NUMBER EXERCISE
EXERCISE PRICES OUTSTANDING LIFE (YEARS) PRICE EXERCISABLE PRICE
- - --------------- ----------- ------------ -------- ----------- --------
<S> <C> <C> <C> <C> <C>
$4.40 - 4.72 28,631 1.6 $ 4.69 28,631 $ 4.69
$5.92 - 8.80 208,236 3.3 $ 8.24 208,236 $ 8.24
$10.97 - 16.40 1,503,608 8.8 $13.96 460,446 $14.80
--------- -------
1,740,475 7.9 $13.13 697,313 $12.43
========= =======
</TABLE>
As discussed in Note 2, the Company continues to account for its
stock-based awards using the intrinsic value method in accordance with
Accounting Principles Board No. 25, "Accounting for Stock Issued to Employees",
and its related interpretations. Accordingly, no compensation expense has been
recognized in the financial statements for employee stock arrangements, as the
exercise price of the options is not less than the fair market value of the
underlying stock at the date of grant.
Statement of Financial Accounting Standards No. 123, "Accounting for
Stock-Based Compensation", (SFAS No. 123) requires the disclosure of pro forma
net income and earnings per share had the Company adopted the fair value methods
as of the beginning of fiscal 1995. Under SFAS No. 123, the fair value of
stock-based awards to employees is calculated through the use of option pricing
models, even though such models were developed to estimate the fair value of
freely tradable, fully transferable options without vesting restrictions, which
significantly differ from the Company's stock option awards. These models also
require subjective assumptions, including future stock price volatility and
expected time to exercise, which greatly affect the calculated values. The
Company's calculations were made using the Black-Scholes option pricing model
with the following weighted-average assumptions for 1998, 1997 and 1996:
expected life of 5.0 years for both 1998 and 1997 grants and 5.2 years for 1996
grants; stock volatility of 25% for 1998 and 1997 grants and 43% for 1996
grants; risk free interest rates of 6%; and no dividends during the expected
term. The Company's calculations are based on a single option valuation approach
and forfeitures are recognized as they occur. If the computed fair values of the
awards had been amortized to expense over the vesting period of the awards, pro
forma net loss applicable to nonredeemable common stock would have been
approximately $28,848,000 ($0.96 per basic and diluted share) in 1998,
$37,397,000 ($1.24 per basic and diluted share) in 1997 and $16,056,000 ($0.71
per basic and diluted share) in 1996. However, the impact of outstanding
nonvested stock options granted prior to 1995 has been excluded from the pro
forma calculation; accordingly, the pro forma adjustments are not indicative of
future period pro forma adjustments, when the calculation will apply to all
applicable stock options.
EMPLOYEE STOCK PURCHASE PLAN
In August 1997, the Company adopted the Employee Stock Purchase Plan (the
"ESP Plan") which is intended to qualify under Section 423 of the Internal
Revenue Code. Under the terms of the ESP Plan, Company employees can purchase
the Company's common stock at a 10% discount from the market value on the
purchase date. As of December 31, 1998, 16,565 shares have been purchased by
Company employees.
35
<PAGE> 38
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
SHARES RESERVED FOR FUTURE ISSUANCE
Common stock reserved for future issuance at December 31, 1998 are as
follows:
<TABLE>
<S> <C>
Option Plans..................................... 2,843,038
ESP Plan......................................... 163,435
Warrants......................................... 7,500,000
----------
Total............................................ 10,506,473
==========
</TABLE>
9. INCOME TAXES
As a result of the exercise of the Hilton Warrants on October 7, 1996 (see
Note 10), Ascent's ownership in the Company fell below 80% and, accordingly, the
Company was no longer included in Ascent's consolidated tax group. The Company
has prepared its 1996 income tax provision based on inclusion in Ascent's
consolidated returns. However, the provision as calculated would approximate the
provision if prepared on a separate return basis. The current and deferred tax
expense represent the Company's separately computed tax liability.
The provision (benefit) for income taxes for the years ended December 31
consists of the following (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
----- ---- -----
<S> <C> <C> <C>
Current:
Federal................................................... $ -- $ -- $(776)
State..................................................... -- 198 257
Foreign................................................... (109) 635 498
----- ---- -----
(109) 833 (21)
Deferred:
Federal................................................... -- -- 354
State..................................................... -- -- (159)
Foreign................................................... -- (47) --
----- ---- -----
-- (47) 195
----- ---- -----
Total....................................................... $(109) $786 $ 174
===== ==== =====
</TABLE>
The provision for income taxes differs from the amount obtained by applying
the federal statutory rate (35%) to loss before income taxes for the years ended
December 31 as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
------- -------- -------
<S> <C> <C> <C>
Tax benefit computed at federal statutory rate....... $(9,126) $(11,385) $(5,097)
State tax benefit net of federal benefit............. (1,080) (1,246) (580)
Goodwill............................................. 1,750 1,750 --
Other................................................ 440 459 20
Foreign.............................................. (109) 588 498
Valuation allowance.................................. 8,016 10,620 5,333
------- -------- -------
Provision for income taxes........................... $ (109) $ 786 $ 174
======= ======== =======
</TABLE>
36
<PAGE> 39
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
Loss before income taxes for the years ended December 31 consists of the
following (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Domestic........................................... $(23,438) $(31,800) $(14,387)
Foreign............................................ (2,637) (728) (178)
-------- -------- --------
Total............................... $(26,075) $(32,528) $(14,565)
======== ======== ========
</TABLE>
Deferred income taxes, which result from the net tax effects of temporary
differences between the carrying amounts of assets and liabilities for financial
reporting purposes and the amounts used for income tax purposes, at December 31
consist of the following (in thousands):
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Deferred tax assets:
Tax net operating loss and credit carryforwards........... $ 40,021 $ 27,246
Accruals not recognized for tax purposes.................. 5,413 7,752
Depreciation and amortization............................. -- 3,232
Other..................................................... 2,850 1,269
Valuation allowance....................................... (47,401) (39,385)
-------- --------
Total deferred tax assets................................... 883 114
Deferred tax liabilities:
Depreciation and amortization............................. (817) --
Other..................................................... (66) (114)
-------- --------
Total deferred tax liabilities.............................. (883) (114)
-------- --------
Net deferred tax liability.................................. $ -- $ --
======== ========
</TABLE>
The Company has federal net operating loss carryforwards of approximately
$100,000,000, which expire beginning in 2010. However, because of the
acquisition of SpectraVision by On Command Corporation, the pre-ownership change
net operating loss carryforwards (approximately $43 million) are subject under
Section 382 of the Internal Revenue Code to an annual limitation estimated to be
approximately $6 million. In addition, the Company has state net operating loss
carryforwards of approximately $66,000,000 which expire beginning in 2000.
Certain of the state net operating loss carryforwards (approximately $7 million)
are subject to the annual limitation under Section 382. Alternative minimum tax
credit carryforwards of approximately $1,595,000 and $251,000 are available to
offset future regular federal and state tax liabilities, respectively. Research
and development tax credit carryforwards of approximately $32,000 and $382,000
are available to offset future federal and state tax liabilities, respectively.
10. RELATED PARTY TRANSACTIONS
ASCENT ENTERTAINMENT GROUP, INC.
During 1995, the Company entered into a Contribution Agreement with Ascent,
whereby the Company acquired various assets and liabilities (primarily installed
video systems and related construction in progress, accounts receivable,
deferred income taxes and other assets) from Ascent in exchange for shares of
common stock of the Company. During 1996, in connection with the aforementioned
Contribution Agreement, Ascent contributed additional assets and liabilities
with a net book value of $1,385,000 to the Company. Both of these transfers of
net assets and shares between companies under common control have been accounted
for at historical cost.
37
<PAGE> 40
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
During 1996, the Company and Ascent entered into a Corporate Agreement, as
amended, pursuant to which the Company has agreed with Ascent not to incur any
indebtedness without Ascent's prior consent, other than indebtedness under the
Company's Credit Facility (see Note 6), and indebtedness incurred in the
ordinary course of operations which together shall not exceed $182 million
through December 31, 1999; provided, however, that such indebtedness may only be
incurred in compliance with the financial covenants contained in the Credit
Facility, with any amendments to such covenants subject to the written consent
of Ascent.
Effective October 8, 1996, the Company entered into an "Intercompany
Management Services Agreement" with Ascent under which Ascent will provide
certain management services to OCC through December 31, 1999. Services to be
provided include insurance administration, coordination and advisory services
regarding corporate financing, employee benefits administration, public
relations, and various other general corporate functions. Fees for management
services are $100,000 per month. The Company paid a total of $100,000 in
management service fees to Ascent in 1996. In 1997 and 1998, Ascent waived the
management service fees due under the Agreement. The Company had approximately
$138,000 and $104,000 in payables to Ascent at December 31, 1998 and 1997,
respectively.
HILTON HOTELS CORPORATION ("HILTON")
In July 1993, pursuant to a stock purchase agreement with Hilton, the
Company sold 1,165,993 shares of redeemable common stock at $8.80 per share. In
July 1993, in connection with the signing of a contract to provide services, the
Company issued Hilton warrants (the "Hilton Warrants") to purchase 1,165,993
shares of common stock at $9.68 per share through May 1996, increasing to $10.65
per share in June 1996 and $11.72 per share in June 1997, subject to
anti-dilution. On October 7, 1996, Hilton exercised its warrants and the Company
received proceeds of $1.8 million in cash and $8.9 million in the form of a
promissory note.
MAGINET CORPORATION
The Company also earned video system sales of approximately $83,000,
$751,000, and $4,420,000 in 1998, 1997 and 1996, respectively, and room revenues
of approximately $0, $150,000, and $524,000 in 1998, 1997 and 1996,
respectively, from MagiNet Corporation which is a related party by virtue of the
Company's preferred stock investment in this company. Accounts receivable from
MagiNet at December 31, 1998 and 1997 was approximately $40,000 and $150,000,
respectively. (See Note 2 for additional discussion).
11. CONCENTRATION OF CREDIT RISK
The Company generates the majority of its revenues from the guest usage of
proprietary video systems located in various hotels primarily throughout the
United States, Canada, Mexico, Europe, Australia and the Far East. The Company
performs periodic credit evaluations of its installed hotel locations and
generally requires no collateral while maintaining allowances for potential
credit losses. The Company invests its cash in high-credit quality institutions.
These instruments are short-term in nature and, therefore, bear minimal risk.
Marriott Corporation and its affiliates accounted for 24%, 21%, and 25% of
revenues in 1998, 1997 and 1996, respectively, while Holiday Inn Corporation
accounted for 11%, 11% and 14% of revenues in 1998, 1997 and 1996, respectively.
The Company earned revenues of approximately $22,955,000, $22,000,000, and
$18,900,000, which accounted for 10%, 10% and 13%, of total revenues in 1998,
1997 and 1996, respectively, from Hilton and its affiliates. Accounts receivable
from Hilton and its affiliates at December 31, 1998 and 1997 was approximately
$1,400,000 and $753,000, respectively.
38
<PAGE> 41
ON COMMAND CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
12. GEOGRAPHIC OPERATING INFORMATION
The following represents total revenues for the years ended December 31,
1998, 1997 and 1996 and long-lived assets as of December 31, 1998 and 1997 by
geographic territory (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
--------------------- --------------------- -----------
LONG- LONG-
TOTAL LIVED TOTAL LIVED TOTAL
REVENUES(*) ASSETS REVENUES(*) ASSETS REVENUES(*)
----------- ------- ----------- ------- -----------
<S> <C> <C> <C> <C> <C>
United States.............................. 215,054 331,819 197,086 352,204 142,874
Canada..................................... 12,690 16,716 13,251 6,708 2,186
All other foreign.......................... 11,076 12,398 11,766 7,403 2,409
------- ------- ------- ------- -------
Total....................... 238,820 360,933 222,103 366,315 147,469
======= ======= ======= ======= =======
</TABLE>
- - ---------------
* Net revenues are attributed to countries based on invoicing location of
customer.
13. EMPLOYEE BENEFIT PLAN
Qualified employees are eligible to participate in the Company's 401(k)
tax-deferred savings plan. Participants may contribute up to 20% of their
eligible earnings (to a maximum of approximately $10,000 per year) to this plan,
for which the Company, at the discretion of the Board or Directors, may make
matching contributions. Matching contributions made by the Company were
approximately $773,000, $711,000, and $1,014,000 in 1998, 1997 and 1996,
respectively.
14. LEGAL MATTERS
On September 11, 1998, OCC reached an agreement with LodgeNet Entertainment
Corporation ("LodgeNet") to settle all pending litigation between the companies.
As a result, the two providers of in-room entertainment and information services
to the lodging industry have dismissed all pending litigation between the
parties in United States Federal District Courts in California and South Dakota,
with no admission of liability by either party. The terms of the confidential
settlement include a cross-license of each company's patented technologies at
issue to the other party and a covenant not to engage in patent litigation
against the other party for a period of five years. Each company is responsible
for its own legal costs and expenses, and in connection with the multiple
cross-licenses, OCC expects to receive royalty payments net of legal fees and
expenses in an aggregate amount of approximately $10.8 million, although no
assurance can be given. OCC received the first payment of approximately $2.9
million (net of expenses) in September 1998 and expects to receive an additional
two payments of approximately $3.95 million (net of expenses) in each of July
1999 and July 2000. OCC will be recognizing the additional royalty revenue as
the cash payments are received.
In September 1998, OCV filed suit against MagiNet, alleging a breach by
MagiNet of a license agreement between OCV and MagiNet, and terminating the
license agreement. OCV has also demanded the payment of license fees from
MagiNet which OCC believes were due and payable under the License Agreement and
have not been paid by MagiNet. MagiNet has counter-claimed against OCV, alleging
that OCV breached the license agreement, and alleging various torts by OCV in
its relationship with MagiNet.
The Company is a defendant, and may be a potential defendant, in lawsuits
and claims arising in the ordinary course of its business. While the outcomes of
such claims, lawsuits, or other proceedings cannot be predicted with certainty,
management expects that such liability, to the extent not provided for by
insurance or otherwise, will not have a material adverse effect on the financial
condition of the Company.
39
<PAGE> 42
QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
The following is a summary of unaudited quarterly results of operations for
the years ended December 31, 1998 and 1997:
<TABLE>
<CAPTION>
DEC. 31 SEPT. 30 JUNE 30 MARCH 31
------- -------- ------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
1998:
Revenues........................................... $59,082 $62,975 $60,895 $ 55,868
Direct costs of revenue............................ 26,424 26,696 26,862 23,920
Operating expenses................................. 37,278 37,555 38,705 37,530
Loss from operations............................... (4,620) (1,276) (4,672) (5,582)
Net loss........................................... (7,076) (3,974) (7,078) (7,838)
Basic and diluted loss per share................... $ (0.23) $ (0.13) $ (0.23) $ (0.26)
1997:
Revenues........................................... $56,667 $56,985 $56,387 $ 52,064
Direct costs of revenue............................ 25,775 25,734 26,338 25,496
Operating expenses................................. 37,102 34,821 33,576 36,667
Loss from operations............................... (6,210) (3,570) (3,527) (10,099)
Net loss........................................... (9,473) (6,068) (5,817) (11,956)
Basic and diluted loss per share................... $ (0.31) $ (0.20) $ (0.19) $ (0.40)
</TABLE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND OFFICERS OF THE REGISTRANT
Except for the portion of Item 10 relating to Executive Officers which is
included in Part I of this Report, the information called for by Items 10
through 13 is incorporated by reference from the On Command Corporation 1999
Annual Meeting of Stockholders -- Notice and Proxy Statement -- (the "Proxy
Statement") (to be filed pursuant to Regulation 14A not later than 120 days
after the close of the fiscal year ended December 31, 1998) which meeting
involves election of directors, in accordance with General Instruction G to the
Annual Report on Form 10-K.
ITEM 11. EXECUTIVE COMPENSATION
Information required by this Item 11 is hereby incorporated by reference to
the Company's Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information required by this Item 12 is hereby incorporated by reference to
the Company's Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information required by this Item 13 is hereby incorporated by reference to
the Company's Proxy Statement.
40
<PAGE> 43
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES AND REPORTS ON FORM 8-K
(A)(1) FINANCIAL STATEMENTS
The following consolidated financial statements of On Command Corporation
are included in Item 8:
Independent Auditors' Report
Consolidated Balance Sheets at December 31, 1998 and 1997
Consolidated Statements of Operations for the years ended December 31,
1998, 1997 and 1996
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 1998, 1997 and 1996
Consolidated Statements of Comprehensive Loss for the years ended
December 31, 1998, 1997 and 1996
Consolidated Statements of Cash Flows for the years ended December 31,
1998, 1997 and 1996
Notes to the Consolidated Financial Statements
Quarterly Results of Operations for the years ended December 31, 1998
and 1997
(A)(2) FINANCIAL STATEMENT SCHEDULES
The following consolidated financial statement schedule of On Command
Corporation is included:
Schedule II -- Valuation Accounts
Information required by the other schedules has been presented in the
Notes to the Consolidated Financial Statement or such schedule is not
applicable and, therefore, has been omitted.
(A)(3) EXHIBITS AND REPORTS ON FORM 8-K
(A) EXHIBIT
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
3.1 Certificate of Amended and Restated Certificate of
Incorporation of On Command Corporation, which is
incorporated by reference to Exhibit 3.1 of Form S-4.
3.3 Bylaws of On Command Corporation, which is incorporated by
reference to Exhibit 3.3 of Form S-4.
3.4 Amendment to Bylaws dated as of November 23, 1998.
4.1 Registration Rights Agreement by and among On Command
Corporation and the other parties named therein, which is
incorporated by reference to Exhibit 4.1 of Form S-4.
4.2 Warrant Agreement by and among On Command Corporation and
the other parties named therein, which is incorporated by
reference to Exhibit 4.2 of Form S-4.
10.1 Master Services Agreement, dated as of August 3, 1993, by
and between Marriott International, Inc., Marriott Hotel
Services, Inc. and On Command Video Corporation
(confidential treatment granted), which is incorporated by
reference to Form S-4, (Incorporated by reference to Exhibit
10.6 of the Registration statement on Form S-1 (File No.
33-98502) of Ascent Entertainment Group, Inc.).
10.2 Hilton Hotels Corporation -- On Command Video Agreement,
dated April 27, 1993, by and between Hilton Hotels
Corporation and On Command Video Corporation, which is
incorporated by reference to Exhibit 10.4 of Form S-4
(confidential treatment granted).
</TABLE>
41
<PAGE> 44
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
10.3* Amended and Restated Employment Agreement between On Command
Corporation and Robert Kavner, dated as of December, 1998.
10.4* Amendment to Employment Agreement between On Command
Corporation and Brian Steel, dated as of December 31, 1998.
10.5* Employment and Consulting Agreement, dated November 20,
1991, between Robert Snyder and On Command Video Corporation
which is incorporated by reference to Exhibit 10.9 of Form
S-4.
10.6 Standard Lease, dated June, 1996, between Berg & Berg
Developers, and On Command Video Corporation (Incorporated
by reference to Exhibit 10.10 of the Annual Report on Form
10-K for the year ended December 31, 1996 ("OCC 1996 Form
10-K")).
10.7 Corporate Agreement dated as of October 8, 1996, between On
Command Corporation and Ascent Entertainment Group, Inc.
(Incorporated by reference to Exhibit 10.22 of the Annual
Report on Form 10-K for the year ended December 31, 1996 at
Ascent Entertainment Group, Inc. (Commission File No.
0-27192)).
10.8* 1996 Key Employee Stock Plan (Incorporated by reference to
Exhibit 10.13 of the OCC 1996 Form 10-K).
10.9* 1997 Employee Stock Purchase Plan (Incorporated by reference
to Exhibit 4(c) of Form S-8 filed August 8, 1997).
10.10* 1997 Non-Employee Directors Stock Plan (Incorporated by
reference to Exhibit 4(d) of Form S-8 filed August 8, 1997).
10.11 First Amended and Restated Credit Agreement dated as of
November 24, 1997, between On Command Corporation and the
Lenders Named Therein and NationsBank of Texas, N.A.
10.12 Change of Control Severance Plan for Executive Officers.
21.1 Subsidiaries of On Command Corporation.
23.1 Independent Auditors' Consent.
</TABLE>
- - ---------------
* Indicates compensatory plan or arrangement.
(B) REPORTS
No reports on Form 8-K were filed during the quarter ended December 31,
1998.
42
<PAGE> 45
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY SAN JOSE,
STATE OF CALIFORNIA ON MARCH 27, 1999.
ON COMMAND CORPORATION
By: /s/ BRIAN A.C. STEEL
------------------------------------
Brian A.C. Steel
President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS
REPORT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON BEHALF OF THE
REGISTRANT AND IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- --------------
<S> <C> <C>
/s/ BRIAN A. C. STEEL President, Chief Operating March 27,1999
- - -------------------------------------------------------- Officer, and Director
Brian A. C. Steel (Principal Executive Officer
and Financial Officer)
/s/ PAUL J. MILLEY Senior Vice President, March 27, 1999
- - -------------------------------------------------------- Finance (Principal Accounting
Paul J. Milley Officer)
/s/ JAMES A. CRONIN, III Director March 27, 1999
- - --------------------------------------------------------
James A. Cronin, III
/s/ CHARLES LYONS Chairman of the Board March 27, 1999
- - --------------------------------------------------------
Charles Lyons
/s/ GARY L. WILSON Director March 27, 1999
- - --------------------------------------------------------
Gary L. Wilson
/s/ RICHARD D. GOLDSTEIN Director March 27, 1999
- - --------------------------------------------------------
Richard D. Goldstein
/s/ J. DAVID WARGO Director March 27, 1999
- - --------------------------------------------------------
J. David Wargo
/s/ J.C. SPARKMAN Director March 27, 1999
- - --------------------------------------------------------
J.C. Sparkman
</TABLE>
43
<PAGE> 46
SCHEDULE II
ON COMMAND CORPORATION
VALUATION ACCOUNTS
<TABLE>
<CAPTION>
COL. B COL. C COL. D COL. E
COL. A ------------ ------------- ---------- -------------
------ BALANCE AT ADDITIONS
BEGINNING OF ACQUIRED WITH CHARGED TO COSTS BALANCE AT
DESCRIPTION PERIOD SPECTRAVISION OR EXPENSES DEDUCTIONS END OF PERIOD
----------- ------------ ------------- ---------------- ---------- -------------
<S> <C> <C> <C> <C> <C>
From January 1, 1998 to December 31, 1998
Deferred tax asset valuation
allowance............................ $39,385,000 -- 8,016,000 -- $47,401,000
Bad debt allowance...................... 1,630,000 -- 982,000 1,128,000 1,484,000
From January 1, 1997 to December 31, 1997
Deferred tax asset valuation
allowance............................ $28,765,000 -- 10,620,000 -- $39,385,000
Bad debt allowance...................... 629,000 -- 1,001,000 -- 1,630,000
From January 1, 1996 to December 31, 1996
Deferred tax asset valuation
allowance............................ -- 23,407,000 6,502,000 1,144,000 $28,765,000
Bad debt allowance...................... $ 100,000 1,000,000 450,000 21,000 629,000
</TABLE>
44
<PAGE> 47
OFFICERS
Brian A.C. Steel
President, Chief Operating Officer
and Director
Richard C. Fenwick, Jr.
Senior Vice President, Engineering
Ronald D. Lessack
Senior Vice President, Operations
Paul J. Milley
Senior Vice President, Finance
Arthur M. Aaron
Acting General Counsel and Secretary
Jean A. deVera
Senior Vice President, Account Management
DIRECTORS
Charles Lyons, Chairman
Chairman, President and Chief Executive Officer, Ascent Entertainment Group,
Inc.
Brian A.C. Steel
President, Chief Operating Officer
and Director
James A. Cronin, III
Executive Vice President, Chief Financial Officer and Chief Operating Officer
Ascent Entertainment Group, Inc.
Gary L. Wilson
Chairman, Northwest Airlines, Inc.
Richard D. Goldstein
Senior Managing Director, Alpine Capital Group
Director, US Franchise Systems, Inc;
Roberts Radio LLC; and The Berkshire Bank
J. David Wargo
President, Wargo & Company, Inc.
Director, TV Guide, Inc.
J.C. Sparkman
Director, TCI; Shaw Communications;
and Universal Electronics, Inc.
COMMON STOCK
The Company's common stock commenced trading on October 8, 1996, and is listed
on the NASDAQ National Market under the symbol ONCO.
SERIES A COMMON STOCK PURCHASE WARRANTS
The Series A Warrants commenced trading on October 8, 1996, and are listed on
the NASDAQ National Market under the ticker symbol ONCOW.
SERIES B COMMON STOCK PURCHASE WARRANTS
The Series B Warrants commenced trading on January 10, 1997, and are listed on
the NASDAQ National Market under the ticker symbol ONCOZ.
FORM 10-K AND OTHER INVESTOR INFORMATION
A copy of our Form 10-K, filed with the Securities and Exchange Commission
(SEC), is included in this report. Additional copies are available upon request.
To have your name placed on a mailing list for copies of press releases and
periodic reports to the SEC, please call or fax our corporation headquarters.
AUDITORS
Deloitte & Touche LLP
60 S. Market Street, Suite 800
San Jose, California 95113
TRANSFER AGENT
Bank of New York
101 Barclay Street (22W)
New York, New York 10286
Website Address: http://stock.bankofny.com
SHAREHOLDER SERVICES AGENT
If you have questions concerning your ownership or records, please write to:
On Command Corporation
c/o The Bank of New York
Shareholder Relations Department - 11E
PO Box 11258
Church Street Station
New York, New York 10286
E-Mail Address:
[email protected]
45
<PAGE> 48
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
3.1 Certificate of Amended and Restated Certificate of
Incorporation of On Command Corporation, which is
incorporated by reference to Exhibit 3.1 of Form S-4.
3.3 Bylaws of On Command Corporation, which is incorporated by
reference to Exhibit 3.3 of Form S-4.
3.4 Amendment to Bylaws dated as of November 23, 1998.
4.1 Registration Rights Agreement by and among On Command
Corporation and the other parties named therein, which is
incorporated by reference to Exhibit 4.1 of Form S-4.
4.2 Warrant Agreement by and among On Command Corporation and
the other parties named therein, which is incorporated by
reference to Exhibit 4.2 of Form S-4.
10.1 Master Services Agreement, dated as of August 3, 1993, by
and between Marriott International, Inc., Marriott Hotel
Services, Inc. and On Command Video Corporation
(confidential treatment granted), which is incorporated by
reference to Form S-4, (Incorporated by reference to Exhibit
10.6 of the Registration statement on Form S-1 (File No.
33-98502) of Ascent Entertainment Group, Inc.).
10.2 Hilton Hotels Corporation-On Command Video Agreement, dated
April 27, 1993, by and between Hilton Hotels Corporation and
On Command Video Corporation, which is incorporated by
reference to Exhibit 10.4 of Form S-4 (confidential
treatment granted).
10.3* Amended and Restated Employment Agreement between On Command
Corporation and Robert Kavner, dated as of December, 1998.
10.4* Amendment to Employment Agreement between On Command
Corporation and Brian Steel, dated as of December 31, 1998.
10.5* Employment and Consulting Agreement, dated November 20,
1991, between Robert Snyder and On Command Video Corporation
which is incorporated by reference to Exhibit 10.9 of Form
S-4.
10.6 Standard Lease, dated June, 1996, between Berg & Berg
Developers, and On Command Video Corporation (Incorporated
by reference to Exhibit 10.10 of the Annual Report on Form
10-K for the year ended December 31, 1996 ("OCC 1996 Form
10-K")).
10.7 Corporate Agreement dated as of October 8, 1996, between On
Command Corporation and Ascent Entertainment Group, Inc.
(Incorporated by reference to Exhibit 10.22 of the Annual
Report on Form 10-K for the year ended December 31, 1996 at
Ascent Entertainment Group, Inc. (Commission File No.
0-27192)).
10.8* 1996 Key Employee Stock Plan (Incorporated by reference to
Exhibit 10.13 of the OCC 1996 Form 10-K).
10.9* 1997 Employee Stock Purchase Plan (Incorporated by reference
to Exhibit 4(c) of Form S-8 filed August 8, 1997).
10.10* 1997 Non-Employee Directors Stock Plan (Incorporated by
reference to Exhibit 4(d) of Form S-8 filed August 8, 1997).
10.11 First Amended and Restated Credit Agreement dated as of
November 24, 1997, between On Command Corporation and the
Lenders Named Therein and NationsBank of Texas, N.A.
10.12 Change of Control Severance Plan for Executive Officers.
21.1 Subsidiaries of On Command Corporation.
23.1 Independent Auditors' Consent.
</TABLE>
- - ---------------
* Indicates compensatory plan or arrangement.
46
<PAGE> 1
EXHIBIT 10.3
CONFIDENTIAL
AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT dated as of December 28, 1998 is made to the
EMPLOYMENT AGREEMENT dated as of September 11, 1996 (the "Agreement"), by and
between On Command Corporation, a Delaware corporation (the "Company"), and
Robert M. Kavner, a resident of the State of California (the "Executive").
WHEREAS, the Company and the Executive desire to change the terms
and conditions of the Company's employment of the Executive to 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, the Company
and the Executive agree as follows:
1. Change of Employment; Consulting Period. Effective December 31, 1998
(the "Effective Date"), the Executive shall resign as President, Chief Executive
Officer and a director of the Company, and as an officer or director of all of
the Company's subsidiaries. The Company shall retain the Executive as a
non-exclusive consultant for a period commencing on the Effective Date and
ending on December 31, 1999 (the "Consulting Period").
2. Compensation and Fringe Benefits. (a) Base Compensation. As
compensation for his consulting services, the Company shall pay the Executive
base compensation of $350,000 for the Consulting Period, with payments to be
made ratably in installments in accordance with the Company's regular practice
for compensating executive personnel.
(b) Bonus Compensation. As compensation for his service to the
Company during 1998, the Executive will receive a bonus of $350,000 to be paid
in the first week in January 1999.
(c) Fringe Benefits. During the Consulting Period, 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 the Company
to the senior executives of the Company. Such benefits in all events shall
include payment or reimbursement of (i) documented expenses reasonably incurred
in connection with travel and entertainment related to the Company's business
and affairs and performed at the request of a director or senior executive of
the Company, and (ii) Executive's reasonable legal fees and costs incurred in
connection with the drafting, negotiation and execution of this Amendment. All
benefits described in the foregoing (i) and (ii) that are reported by the
Company as earned or unearned income will be "grossed up" by the Company in
connection with federal
<PAGE> 2
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)
and (ii). The Company 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 Consulting Period and provided further that the
benefits provided in clauses (i) and (ii) above shall not be reduced at all.
(d) Stock Options. As of the Effective Date, the Executive agrees to
the cancellation of any and all options ("Options") previously granted to him to
purchase shares of the Company's common stock, par value $0.01 per share,
whether vested or unvested, and the Executive shall surrender his original stock
option agreements representing the Options upon execution of this Amendment.
3. Continuing Provisions. During the Consulting Period, Sections 3, 4, 6,
9, 10, 11, 12, 13, 14 and 15 of the Agreement shall remain in full force and
effect, and any references therein to the "Employment Period" shall be deemed
references to the Consulting Period, and all other sections of the Agreement
shall have no further force or effect after the execution of this Amendment.
4. Non-Competition. (a) As an inducement for the Company to enter into
this Amendment, the Executive agrees that during the Consulting 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 the Company, with respect to any
geographic area in which the Company 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 the Company (as defined in Section 3 of the Agreement) to which
Executive had access by reason of his employment by the Company.
(b) Non-Solicitation of Employees. During the Consulting Period, the
Executive will not (for his own benefit or for the benefit of any person or
entity other than the Company) solicit, or assist any person or entity other
than the Company to solicit, any officer, director, executive or employee (other
than an administrative or clerical employee) of the Company to leave his or her
employment.
(c) Reasonableness; Interpretation. The Executive
2
<PAGE> 3
acknowledges and agrees, solely for purposes of determining the enforceability
of this Section 4 (and not for purposes of determining the amount of money
damages or for any other reason), that (i) the markets served by the Company 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 equal to the term of the Consulting
Period; 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 the Company. In
the event that the covenants in this Section 4 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 Amendment shall be deemed to
prohibit the Executive from owning equity or debt investments in any
corporation, partnership or other entity which is competitive with the Company,
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.
5. Mutual Release. (a) In consideration for the Company entering into this
Amendment and for the benefits described herein, the Executive and his
successors and assigns release and absolutely discharge the Company, its
affiliates and their respective shareholders, directors, employees, agents,
attorneys, legal successors and assigns (the "Company Released Parties") of and
from any and all claims, actions, and causes of actions whether now known or
unknown, which the Executive now has, or at any other time had, or shall or may
have against the Company Released Parties based upon or arising out of any
matter, cause, fact, thing, act or omission whatsoever occurring or existing at
any time to and including the Effective Date, including but not limited to, any
claims under the Agreement or of breach of contract, wrongful termination or
national origin, race, age, sex, sexual orientation, disability or other
discrimination under the Civil Rights Act of 1964, the Age Discrimination in
Employment Act of 1967, the American with Disabilities Act, the Fair Employment
and Housing Act or any other applicable law, all
3
<PAGE> 4
as they have or may be amended.
(b) In consideration for the Executive entering into this Amendment and
for the benefits to the Company described herein, the Company and its successors
and assigns release and absolutely discharge the Executive and his successors
and assigns (the "Executive Released Parties") of and from any and all claims,
actions, and causes of actions whether now known or unknown, which the Company
now has, or at any other time had, or shall or may have against the Executive
Released Parties based upon or arising out of any matter, cause, fact, thing,
act or omission whatsoever occurring or existing at any time to and including
the Effective Date, including but not limited to, any claims under the Agreement
or of breach of contract.
(c) Each party acknowledges that he or it has read Section 1542 of the
Civil Code of the State of California which states:
A general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which
if known by him must have materially affected his settlement with the
debtor.
Each hereby waives any right or benefit which he or it has or may have under
Section 1542 of the Civil Code of the State of California to the full extent
that he or it may lawfully waive such rights and benefits pertaining to the
subject matter of this general release of claims.
6. Press Release. Public announcements to be made by the Company
announcing the changes in the Executive's offices and responsibilities reflected
in this Amendment shall be subject to the mutual approval of the parties,
subject to the Company's compliance with applicable laws and regulations.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
December 28, 1998.
/s/
-------------------------------------
Robert M. Kavner, Executive
ON COMMAND CORPORATION
By:
----------------------------------
Title:
4
<PAGE> 1
EXHIBIT 10.4
CONFIDENTIAL
AMENDMENT NO.1 TO EMPLOYMENT AGREEMENT
This AMENDMENT, dated as of December 28, 1998, is made to the
EMPLOYMENT AGREEMENT dated as of September 11, 1996 (the "Agreement"), by and
between On Command Corporation, a Delaware corporation (the "Company"), and
Brian A. C. Steel, a resident of the State of California (the "Executive").
WHEREAS, the Company and the Executive desire to amend certain of
the terms and conditions of the Agreement in connection with the Executive
becoming President of the Company to 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, the Company
and the Executive agree as follows:
1. Definition of "NEWCO". The first parenthetical in the introductory
paragraph of the Agreement is hereby amended to read as follows:
("NEWCO" or the "Company")
2. Change in Title; Duties.
Sections 1(a) and 1(b) of the Agreement are hereby deleted and replaced in
their entirety by the following:
(a) Employment and Employment Period. The Company shall employ the
Executive for a period (the "Employment Period") commencing on September
11, 1996 (the "Effective Date") and continuing thereafter for a term
ending on September 11, 2000 unless terminated in accordance with the
provisions of this Agreement. Executive shall be employed by the Company
to serve as Vice President, Chief Operating Officer and Chief Financial
Officer from the Effective Date to December 31, 1998, and as President and
Chief Operating Officer from December 31, 1998 through the remainder of
the Employment Period. In the event that the Company desires to extend the
employment of the Executive, it must give written notice of such desire by
September 11, 1999, and after such notice the parties shall enter
<PAGE> 2
into an exclusive negotiation period of not less than six months, unless
otherwise mutually agreed upon by the parties in writing. Each 12 month
period ending on September 11 is sometimes referred to herein as a "year
of the Employment Period."
(b) Offices, Duties and Responsibilities. Effective on the Effective
Date, Executive shall be elected Executive Vice President, Chief Operating
Officer and Chief Financial Officer of NEWCO. On December 31, 1998,
Executive shall be elected President and Chief Operating Officer of the
Company. The Executive shall report directly and solely to the Chief
Executive Officer and the Board of Directors of the Company (the "Board"),
or if there is no Chief Executive Officer, to the Chairman of the Board
and the Board of Directors of the Company. The Executive's offices
initially shall be located at OCV's present headquarters. Throughout the
Employment Period, the Company shall cause the Executive to be a member of
the Board. Until December 31, 1998, the Executive shall have all duties
and authority customarily accorded a chief operating officer and chief
financial officer, and from December 31, 1998, the Executive shall have
all duties customarily accorded a president and chief operating officer,
including, without limitation, the lead responsibility with full autonomy,
subject to the customary authority and direction of the Board (and the
Chairman of the Board or Chief Executive Officer, as the case may be), to
direct and develop the operating capabilities and performance of the
Company. The Executive shall be a member of any senior
executive/management committees which may be established from time to time
by the Board. The Executive shall not be required to perform services
other than those comparable in scope, dignity and stature to those
customarily performed by officers of the same rank at companies similar to
the Company.
3. Notification of Chief Executive Search. A new Subsection (d) is hereby
added to Section 1 of the Agreement to read as follows:
(d) New Chief Executive Search. In the event that the Company, or
any authorized representative of the Company, undertakes or authorizes a
search for a
2
<PAGE> 3
new chief executive officer or president of the Company, or solicits, or
engages in any substantive discussions with, any person (or representative
of any person) to become the chief executive officer or president of the
Company, then and in such event, the Company will promptly notify the
Executive about the existence of such search, solicitation or discussions
as a courtesy to Executive, it being understood that details about the
same need not be provided by the Company to the Executive.
4. Base Compensation. The following sentence is hereby added at the end of
Section 2(a) of the Agreement:
Commencing December 31, 1998, the Executive's Base Salary shall be
increased to $375,000 per year.
5. Bonus Compensation. The following sentence is hereby added at the end
of Section 2(b) of the Agreement:
Notwithstanding anything in the foregoing to the contrary, the parties
agree that the Compensation Committee will act in good faith to establish
parameters or guidelines which will contemplate that the target level
established for an Annual Bonus of 70% of Base Salary shall not be treated
as a "cliff" target; rather, in the event the Company fails to meet 100%
of the target level for a given period but nevertheless achieves a
substantial part of the targeted performance, then and in such event, the
parameters or guidelines will contemplate that Executive shall qualify for
an Annual Bonus for such period, albeit at a level below 70% of Base
Salary.
6. Fringe Benefits. Clause (v) of Section 2(c) of the Agreement is amended
in its entirety to read as follows:
(v) Executive's reasonable legal fees and costs incurred in connection
with the drafting, negotiation and execution of this Agreement and
amendments and proposed amendments hereto, including negotiations
contemplated by clause (IX) of Section 5(a) of this Agreement
7. Stock Option Term. A new Clause (w) is hereby inserted immediately
prior to Clauses (x) and (y) in Section 2(e) of the Agreement to read as
follows:
3
<PAGE> 4
(w) One year after the date upon which a termination of employment
occurs as a result of an Executive Election Event described in Clause (IX)
of Section 5(a) of this Agreement;
8. Termination. The Executive Election Event set forth in Clause (IX) of
Section 5(a) of the Agreement is hereby deleted and replaced in its entirety by
the following:
(IX) (A) the election or appointment by the Board of Directors of a Chief
Executive Officer other than the Executive, or (B) the failure of the
Compensation Committee of the Board, prior to June 1, 1999, to review the
Executive's entire compensation package provided under this Agreement and
to propose increases or other amendments thereto as determined by the
Compensation Committee in its sole discretion in light of the changes
occurring in Executive's employment on December 31, 1998 (it being
understood that the Compensation Committee shall have no obligation to
propose any such increases or other amendments), or (C) the Executive and
the Company failing to execute, on or before August 1, 1999, mutually
satisfactory amendments to this Agreement either incorporating the
proposals made by the Compensation Committee under the immediately
preceding clause (B) or containing other amendments to this Agreement that
are mutually satisfactory to the Executive and the Company; (provided that
in the event the Executive exercises his Executive Election as a result of
any of the conditions set forth in this clause (IX), then the Executive
need provide only five (5) days advance written notice in lieu of the
sixty (60) days advance written notice required by the first sentence of
Section 5(a) above and the Company, in full satisfaction of all of the
Company's obligations under this Agreement and in respect of the
termination of the Executive's employment with the Company, shall, (a)
through the first anniversary of his termination, pay the Executive his
Base Salary, together with fringe benefits that are described in the
introductory clause and prior to the proviso of Section 2(c) of this
Agreement, (b) pay the Executive an Annual Bonus for the year in which his
employment is terminated at the maximum amount payable under this
Agreement, prorated through the date of his termination; and (c) a pro
rata portion of the Option and any other stock options granted to the
Executive under the Company's option plan or any
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<PAGE> 5
successor plan that were scheduled to vest during the year of termination
shall vest as of the date of such termination of his employment.
9. No Other Amendments. Except as specifically set forth in this
Amendment, all other provisions of the Agreement shall remain in full force and
effect during the Employment Period and, as applicable, thereafter to the extent
set forth in the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
By: /s/ Brian Steel
-----------------------------------
Brian Steel, Executive
ON COMMAND CORPORATION
By: /s/ Charles Lyons
-------------------------------
Title: Chairman of the Board
5
<PAGE> 1
================================================================================
$200,000,000
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF NOVEMBER 24, 1997
AMONG
ON COMMAND CORPORATION
AS THE BORROWER
AND
THE LENDERS NAMED HEREIN
AND
NATIONSBANK OF TEXAS, N.A.
AS THE ADMINISTRATIVE AGENT
================================================================================
<PAGE> 2
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 1.01 - Unrestricted Subsidiaries
Schedule 3.08 - Subsidiaries
Schedule 3.09 - Litigation
Schedule 3.10 - Restrictive Material Agreements
Schedule 3.18 - Insurance
Schedule 3.20 - Environmental Matters
Schedule 6.01 - Subsidiary Indebtedness
Schedule 6.02 - Liens
Schedule 6.04 - Investments
<PAGE> 3
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.......................................... 2
SECTION 1.02. Terms, Generally....................................... 20
ARTICLE II
The Credits
SECTION 2.01. Revolving Loans........................................ 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................... 25
SECTION 2.06. Fees................................................... 26
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 Commitment; Extension of
the Revolving Loan Maturity Date....................... 29
SECTION 2.11. Conversion and Continuation of Borrowings.............. 31
SECTION 2.12. Prepayment............................................. 32
SECTION 2.13. Reserve Requirements; Change in Circumstances.......... 34
SECTION 2.14. Change in Legality..................................... 35
SECTION 2.15. Indemnity.............................................. 36
SECTION 2.16. Pro Rata Treatment..................................... 37
SECTION 2.17. Sharing of Setoffs..................................... 37
SECTION 2.18. Payments............................................... 38
SECTION 2.19. Taxes.................................................. 38
SECTION 2.20. Assignment of Commitment Under Certain Circumstances;
Duty to Mitigate....................................... 42
SECTION 2.21. Letters of Credit...................................... 43
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers................................... 47
SECTION 3.02. Authorization.......................................... 47
<PAGE> 4
SECTION 3.03. Enforceability......................................... 48
SECTION 3.04. Governmental Approvals................................. 48
SECTION 3.05. Financial Statements................................... 48
SECTION 3.06. No Material Adverse Change............................. 48
SECTION 3.07. Title to Properties; Possession Under Leases........... 49
SECTION 3.08. Subsidiaries........................................... 49
SECTION 3.09. Litigation; Compliance with Laws....................... 49
SECTION 3.10. Agreements............................................. 50
SECTION 3.11. Federal Reserve Regulations............................ 50
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act.................................................... 50
SECTION 3.13. Use of Proceeds........................................ 50
SECTION 3.14. Tax Returns............................................ 50
SECTION 3.15. No Material Misstatements.............................. 51
SECTION 3.16. Employee Benefit Plans................................. 51
SECTION 3.17. Solvency............................................... 51
SECTION 3.18. Insurance.............................................. 51
SECTION 3.19. Labor Matters.......................................... 52
SECTION 3.20. Environmental Matters.................................. 52
SECTION 3.21. Survival of Representations and Warranties, etc........ 53
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events...................................... 53
SECTION 4.02. First Credit Event..................................... 54
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............................................ 58
SECTION 5.08. Use of Proceeds........................................ 59
SECTION 5.09. Compliance with Environmental Laws..................... 59
SECTION 5.10. Compliance with Material Contracts..................... 59
ii
<PAGE> 5
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness of the Borrower and the Restricted
Subsidiaries of the Borrower........................... 60
SECTION 6.02. Liens.................................................. 60
SECTION 6.03. Sale and Lease Back Transactions; Off-Balance Sheet
Financings............................................. 61
SECTION 6.04. Investments, Acquisitions, Loans and Advances.......... 62
SECTION 6.05. Mergers, Consolidations and Sales of Assets............ 63
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends.......................... 63
SECTION 6.07. Transactions with Affiliates........................... 64
SECTION 6.08. Limitation on Restrictive Agreements................... 64
SECTION 6.09. Leverage Ratio......................................... 65
SECTION 6.10. Coverage Ratio......................................... 65
SECTION 6.11. Amendments to Organizational Documents. .............. 65
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices................................................ 71
SECTION 9.02. Survival of Agreement.................................. 73
SECTION 9.03. Binding Effect......................................... 73
SECTION 9.04. Successors and Assigns................................. 73
SECTION 9.05. Expenses; Indemnity.................................... 77
SECTION 9.06. Right of Setoff........................................ 78
SECTION 9.07. Applicable Law......................................... 78
SECTION 9.08. Waivers; Amendment..................................... 78
SECTION 9.09. Interest Rate Limitation............................... 79
SECTION 9.10. ENTIRE AGREEMENT....................................... 79
iii
<PAGE> 6
SECTION 9.11. WAIVER OF JURY TRIAL................................... 80
SECTION 9.12. Severability........................................... 80
SECTION 9.13. Counterparts........................................... 80
SECTION 9.14. Headings............................................... 80
SECTION 9.15. Jurisdiction; Consent to Service of Process............ 80
SECTION 9.16. Confidentiality........................................ 81
SECTION 9.17. Amendment, Restatement, Extension and Renewal.......... 82
iv
<PAGE> 7
ON COMMAND CORPORATION
$200,000,000
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"),
dated as of November 24, 1997, 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.
WHEREAS, the Borrower and Lenders entered in to that certain Credit
Agreement dated as of October 8, 1996 in the maximum principal amount of
$125,000,000 (Credit Agreement, as amended and increased to $150,000,000 by that
certain First Amendment to Credit Agreement, dated as of March 23, 1997, and as
amended, restated or modified thereafter, the "Existing Credit Agreement");
WHEREAS, the Borrower has requested the Lenders to amend and restate the
Existing Credit Agreement to provide for a loan facility in the aggregate
maximum amount of $200,000,000, consisting 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 (which under certain circumstances, may be used for Competitive Bid
Loans and of which not more than $10,000,000 may be used for Letters of Credit),
the proceeds of which will be used to repay indebtedness under the Existing
Credit Agreement and otherwise in accordance with the terms and conditions of
this Agreement.
The Lenders are willing to extend a $200,000,000 aggregate credit
facility to the Borrower in the form of either Revolving Loans, Competitive Bid
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:
<PAGE> 8
ARTICLE I
Definitions
SECTION 1.01. 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.
"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 and changes in Applicable 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
2
<PAGE> 9
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, Article 5069-1H, Title 79, Revised Civil
Statutes of Texas, 1925, ("Art. 1H"), as amended, if applicable, and if Art. 1H
is not applicable, Article 5069-1D, Title 79, Revised Civil Statutes of Texas,
1925, ("Art. 1D"), as amended, 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 or Competitive Bid 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 0.750% 0%
- - ----------
Greater than or equal
to 2.50 to 1.00
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<PAGE> 10
Category 2 0.625% 0%
- - ----------
Greater than or equal to
2.00 to 1.00 but less than
2.50 to 1.00
Category 3 0.500% 0%
- - ----------
Greater than or equal to
1.00 to 1.00 but less than
2.00 to 1.00
Category 4 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, the Commitment 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. 1D" has the meaning specified in the definition herein of
"Applicable Law".
"Art. 1H" has the meaning specified in the definition herein of
"Applicable Law".
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<PAGE> 11
"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.
"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
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<PAGE> 12
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) any Person
or group of affiliated Persons owns or controls in the aggregate a greater
percentage of the ordinary voting Capital Stock of the Borrower than Ascent, 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 $200,000,000, (a) as the same may be reduced
from time to time pursuant to Section 2.10 hereof and (b) and with respect to
each Lender, the commitment of the Lenders to make Revolving Loans hereunder in
its Pro Rata Percentage of the Commitment as set forth next to its signature on
the signature pages of this Agreement as the same may be reduced from time to
time pursuant to Section 2.20 hereof, or in any Assignment and Acceptance
executed in accordance with this Agreement, as applicable.
"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 form 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
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<PAGE> 13
2.03 hereof, which such Borrowings shall only be permitted to be made if, and
only for so long as, the Leverage Ratio is less than 2.50 to 1.00.
"Competitive Loan" shall mean a loan from a Lender to the Borrower
pursuant to the bidding procedure described in Section 2.03 hereof, which such
loans shall only be permitted if, and only for so long as, the Leverage Ratio is
less than 2.50 to 1.00. 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
Restricted Subsidiaries, at any date, the consolidated total assets of the
Borrower and its Restricted 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 Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, excluding any amounts paid other than in cash 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 Restricted Subsidiaries, at any date, the consolidated total liabilities of
the Borrower and its Restricted Subsidiaries at such date, as determined in
accordance with GAAP.
"Consolidated Tangible Assets" shall mean, at any date, with respect to
the Borrower and its Restricted Subsidiaries on a consolidated basis,
Consolidated Assets excluding 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 treasury stock held as an asset.
"Consolidated Tangible Net Worth" shall mean, at any date, with respect
to the Borrower and its Restricted Subsidiaries on a consolidated basis, the
excess of the Consolidated Assets over Consolidated Liabilities excluding,
however, from the determination of Consolidated Assets (a) 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
7
<PAGE> 14
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, and
excluding obligations of such Person with respect to deposits with such Person
or advances to such Person of any kind, up to a maximum aggregate amount of
$2,000,000), determined on a consolidated basis in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling and "Controlled" shall have meanings correlative
thereto.
"Coverage Ratio" shall mean, on any date for the Borrower and its
Restricted Subsidiaries on a consolidated basis, the ratio of (a) EBITDA for the
four most recently completed consecutive fiscal quarters, to (b) Consolidated
Cash Interest Expense of the Borrower and its Restricted Subsidiaries for the
four most recently completed consecutive fiscal quarters.
"Credit Event" shall have the meaning assigned to such term in Section
4.01 hereto.
"Debtor Relief Laws" shall mean applicable bankruptcy, reorganization,
moratorium, or similar Laws, or principles of equity affecting the enforcement
of creditors' rights generally.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" 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.
8
<PAGE> 15
"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 Restricted 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 Restricted 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 Restricted 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. Sections 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. Sections 6901 et seq., the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, 33 U.S.C. Sections 1251 et seq., the
Clean Air Act of 1970, 42 U.S.C. Sections 7401 et seq., as amended, the Toxic
Substances Control Act of 1976, 15 U.S.C. Sections 2601 et seq., the
Occupational Safety and Health Act of 1970, as amended by 29 U.S.C. Sections 651
et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Sections 11001 et seq., the Safe Drinking Water Act of 1974, as amended
by 42 U.S.C. Sections 300(f) et seq., the Hazardous Materials Transportation
Act, 49 U.S.C. Sections 5101 et
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<PAGE> 16
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 Restricted Subsidiaries is a "disqualified person" (within the
meaning of Section 4975 of the Code) or with respect to which the Borrower or
any such Restricted 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.
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<PAGE> 17
"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.
"Existing Credit Agreement" shall have the meaning assigned to such term
in the preamble to this Agreement.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a) hereof.
"Fee Letters" shall mean those certain Fee Letter[s] dated as of the
Closing Date between the Borrower and the Administrative Agent, and any other
fee letters executed from time to time among any of 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 Competitive 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.
"Free Cash Flow" shall mean for the Borrower and its Restricted
Subsidiaries on a consolidated basis, EBITDA from the Closing Date through the
date of determination (the "Determination Period") minus the sum of Consolidated
Cash Interest Expense, plus consolidated cash taxes paid plus capital
expenditures made, in each case for the Determination Period. Notwithstanding
anything herein or in any other Loan Paper to the contrary, fiscal quarters of
the Borrower with negative Free Cash Flow shall be excluded from the calculation
of "Free Cash Flow".
"GAAP" shall mean generally accepted accounting principles.
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<PAGE> 18
"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 Restricted Subsidiaries of the Borrower.
"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 weekly ceiling shall be (a) the weekly ceiling described in and
computed in accordance with the provisions of Art. 1H, or (b) either the
annualized ceiling or quarterly ceiling computed pursuant to Section .008 of
Art. 1D; 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 .009(a),
.009(b) or .009(c) of said Art. 1D 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
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<PAGE> 19
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 the last day of the Interest Period
applicable to the Borrowing or Competitive Borrowing of which such Competitive
Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months' duration
been applicable to such Borrowing, and, in addition, the date of any prepayment
of such Borrowing or conversion of such Borrowing to a Borrowing of a different
Type.
"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 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.
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<PAGE> 20
"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 the
signature pages hereof (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
Restricted Subsidiaries on a consolidated basis, the ratio of (a) the Borrower's
and its Restricted Subsidiaries' Consolidated Total Indebtedness to (b) EBITDA
of the Borrower and its consolidated Restricted 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
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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 Revolving Loans made in accordance with the terms
of this Agreement.
"Loan Papers" shall mean this Agreement, the promissory notes evidencing
the Loans and Competitive 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.
"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 Competitive Loan, as
specified in the Competitive Bid relating to such Competitive 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
Restricted 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, the Loans or the Competitive Loans.
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"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, Administrative Agent or any Lender is permitted to charge on the
Obligations.
"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 the
gross amount of any cash paid to or received by the Borrower or any of its
Restricted 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), minus the sum of
the amount, if any, of (i) 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, (ii) 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 Restricted Subsidiaries, (iii) 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, and (iv) reserves
established in connection with such Asset Disposition and in accordance with
GAAP, in each case (A) up to a maximum amount per Asset Disposition equal to 25%
of the gross proceeds from such Asset Disposition and (B) for no longer than one
year after each such Asset Disposition.
"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
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<PAGE> 23
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.
"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 Lender or 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.
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"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 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.
"Required Lenders" shall mean, at any time, (i) Lenders having Pro Rata
Percentages of the Commitment representing in the aggregate at least 51% of the
Commitment at such time, (ii) with respect to acceleration pursuant to clause
(ii) of Article VII, Lenders having Loans, Competitive Loans and L/C Exposure in
the aggregate of at least 51% of such Loans, Competitive Loans and L/C Exposure
or (iii) if the Commitment has terminated, Lenders having Loans and L/C Exposure
representing in the aggregate at least 51% of the sum of all Loans outstanding
and L/C Exposure; and, in each case, if there is more than one Lender party
hereto, at least two Lenders.
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"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.
"Restricted Payment" shall have the meaning ascribed thereto in Section
6.06 hereof.
"Restricted Subsidiary" means each Subsidiary of the Borrower existing
on the Closing Date and each Subsidiary of the Borrower created or acquired from
time to time hereafter except Unrestricted Subsidiaries.
"Revolving Loan Maturity Date" shall mean November 24, 2002 or any later
date that the Revolving Loan Maturity Date is extended to in accordance with the
terms of Section 2.10(f) hereof, or, in each case, any earlier date as the
Obligations are due and payable in full (whether by scheduled reduction,
acceleration, termination or otherwise). Notwithstanding any other provision in
this Agreement or in any other Loan Paper, the Revolving Loan Maturity Date
shall never be extended beyond November 24, 2004.
"Revolving Loans" shall mean the Revolving Loans made available by the
Lenders to the Borrower pursuant to the Commitment and Section 2.01 hereof. Each
Revolving Loan shall be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"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 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 the Commitment 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.
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"Unrestricted Subsidiaries" means (a) those foreign organized
Subsidiaries of the Borrower listed on Schedule 1.01 hereto, (b) each other
foreign organized Subsidiary of the Borrower which the Borrower designates from
time to time as an "Unrestricted Subsidiary" and which the Borrower has given
prior written notice thereof to the Administrative Agent and the Lenders,
provided that, in no event may the Borrower designate any foreign Subsidiary of
the Borrower as an "Unrestricted Subsidiary" if the consolidated revenue of such
foreign Subsidiary together with the consolidated revenue of each other
Subsidiary of the Borrower which has been designated as an Unrestricted
Subsidiary represents more than 25% of consolidated revenue of the Borrower and
its Subsidiaries, and (c) each other Subsidiary of the Borrower which the
Borrower and each Lender agree from time to time shall be designated as an
"Unrestricted Subsidiary".
"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.
SECTION 1.02. 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
SECTION 2.01. Revolving Loans. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not
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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 Revolving Loan
Maturity Date and (b) the termination of the Commitment in accordance with the
terms hereof, in an aggregate principal amount at any time up to such Lender's
Pro Rata Percentage of the 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 the Total Exposure exceeding the 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 Revolving Loans. Competitive Loans under the Commitment shall only be
available to the Borrower and accepted by the Administrative Agent if, and only
for so long as, the Leverage Ratio is less than 2.50 to 1.00, as determined in
accordance with the most recently delivered Compliance Certificate.
SECTION 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
Commitment in accordance with the terms of Section 2.16 below. If the 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 or
Competitive 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 Commitment.
(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.
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(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 Revolving Loan
Maturity Date, a Breakage Event (as defined in Section 2.15 hereof) will occur
on the 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
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<PAGE> 29
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.
SECTION 2.03. Competitive Bid Procedure.
(a) Competitive Bids shall only be available to the Borrower and
accepted by the Administrative Agent if, and only for so long as, the Leverage
Ratio is less than 2.50 to 1.00, as determined in accordance with the most
recently delivered Compliance Certificate. 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; and (v) the Interest Period with respect thereto.
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 the lesser of (i) the amount by which the Commitment exceeds the Total
Exposure on such date and (ii) the amount by which the Commitment exceeds the
sum of (A) the aggregate outstanding Revolving Loans, (B) the L/C Exposure and
(C) the aggregate outstanding Competitive Loans.
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(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 Competitive Loans that the Lender is willing to make,
(y) the Competitive Bid Rate or Competitive Bid Rates at which the Lender is
prepared to make such Competitive Loan or Competitive Loans and (z) the Interest
Period applicable to such Competitive Loan or Competitive 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
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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.
SECTION 2.04. 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; provided, however, that, notwithstanding any contrary specification in
any Borrowing Request, each requested Competitive 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.
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SECTION 2.05. Evidence of Debt; Repayment 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 Competitive Loan or, if earlier, on the Revolving Loan
Maturity Date and (ii) the then unpaid principal amount of each Revolving Loan
on the 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 or Competitive 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 or Competitive Loan made hereunder, the Type
of Borrowing or type of Competitive Borrowing 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 or Competitive Loans in accordance with their terms.
(e) As evidence of the Loans and Competitive Loans hereunder, on the
Closing Date the Borrower shall deliver to each Lender (i) one promissory note
evidencing its Pro Rata Percentage of the Loans made hereunder and (b) one
promissory note in the original principal amount of $200,000,000 evidencing any
Competitive Loans made hereunder. Such promissory notes will evidence each
Lenders' Pro Rata Percentage of each Revolving Loan, L/C Exposure and each
Lenders' exposure under any Competitive Loan, if any.
SECTION 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").
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(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 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 Revolving Loan Maturity Date, or the date on which all
Letters of Credit have been canceled or have expired and the Commitment 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 December 31, 1997 and
continuing on the last day of March, June, September and December of each year
on and until the date on which the Commitment 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 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 2.00 to 1.00 0.2500%
CATEGORY 2
- - ----------
Less than 2.00 to 1.00 0.1875%
Notwithstanding anything in this Agreement to the contrary, in each
determination of the Commitment in connection with this Section 2.06(d), the
amount of all Competitive Loans added to Total Exposure in accordance with the
definition of the Total Exposure shall be deducted from the Total Exposure.
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
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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.
SECTION 2.07. 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 and
Competitive 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 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 Competitive Borrowing plus
the Margin offered by the Lender making such Competitive Loan and accepted by
the Borrower pursuant to Section 2.03 hereof.
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(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 Fixed Rate Loan and accepted by the
Borrower pursuant to Section 2.03 hereof.
(d) Interest on each Loan or Competitive Loan shall be payable on the
Interest Payment Dates applicable to such Loan or Competitive Loan 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.
SECTION 2.08. 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%.
SECTION 2.09. 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 or
Competitive Loans comprising such Borrowing or Competitive 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 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 Commitment; Extension of
the Revolving Loan Maturity Date.
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(a) Maturity Dates. The Commitment shall automatically terminate on the
Revolving Loan Maturity Date (as the same may be extended pursuant to paragraph
(f) of this Section 2.10). The L/C Commitment shall terminate upon the
termination of the Commitment.
(b) Voluntary Reduction of the Commitment. Upon at least three Business
Days' prior irrevocable written or telecopy notice to the Administrative Agent
(specifying the amount of reduction), the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Commitment; 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 Commitment shall not be reduced to an amount that is less than the Total
Exposure.
(c) Total Exposure in Excess of Commitment. If, as a result of any
reduction of the Commitment, the Total Exposure exceeds the Commitment, then the
Borrower shall, on the date of such reduction, (a) first repay Loans, (b)
second, cash collateralize outstanding Letters of Credit, and (c) third, repay
Competitive Loans, each in accordance with this Agreement in an aggregate
principal amount sufficient to eliminate such excess.
(d) Commitment Reduction Due to Asset Dispositions. The Commitment shall
be automatically and permanently reduced by any Loan prepaid pursuant to Section
2.12(c) hereof on the date of such prepayment, in an amount equal to the amount
of such prepayment.
(e) Commitment Reduction, Generally. Each reduction in the Commitment
hereunder shall be made ratably among the Lenders in accordance with their
respective Pro Rata Percentages of the Commitment. 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
Commitment so terminated or reduced accrued to but excluding the date of such
termination or reduction.
(f) Extension of Commitment and Revolving Loan Maturity Date. The
Borrower may, by giving written notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Lenders) not earlier than 90 days prior
to the then current Revolving Loan Maturity Date (the "Existing Maturity Date")
and not fewer than 45 days prior to the Existing Maturity Date, extend the
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
two extensions pursuant to this Section 2.10(f) hereof. Notwithstanding the
foregoing, the extension of the Existing Maturity Date shall not be effective
with respect to any Lender unless (i) the Borrower has received the prior
written consent of such Lender, (ii) the Borrower has received the prior written
consent of Lenders representing not less than 66 and 2/3rds percent of the Pro
Rata Percentages of the Commitment, (iii) 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, (iv) 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
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<PAGE> 37
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, and (v) in no event shall the
Revolving Loan Maturity Date be extended past November 24, 2004.
Any Lender not consenting to any extension of the Revolving Loan
Maturity Date that satisfies each of the conditions precedent except (i) set
forth in the preceding sentence ("Non-Extending Lender"), will continue to be a
Lender hereunder and under the other Loan Papers until the expiration of the
Existing Maturity Date. The Borrower may seek additional commitments from
existing Lenders or seek new lenders in accordance with the terms of Section
9.04 hereof to replace any such Non-Extending Lender Pro Rata Percentage of the
Commitment (the "Expiring Commitment Percentage"). To the extent that none of
the existing Lenders agree to increase their existing Pro Rata Percentages of
the Commitment by the Expiring Commitment Percentage and no new lender becomes a
party hereto and a Lender hereunder in the amount of the Expiring Commitment
Percentage (or any combination of the above), the Commitment shall immediately,
automatically and irrevocably be reduced on the Existing Maturity Date by the
amount of the Expiring Commitment Percentage or any portion thereof not assumed
by any Lender.
SECTION 2.11. Conversion and Continuation of Borrowings.
(a) Provided that such conversion or continuation is not otherwise
prohibited by this Agreement, 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 at the end of the
current Interest Period, 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, at the end of the
current Interest Period, 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 2.02(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
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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) 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 2.11 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.
SECTION 2.12. Prepayment.
(a) Voluntary Prepayment. The Borrower shall have the right at any time
and from time to time to prepay any Borrowing other than a Competitive
Borrowing, in whole or in part, upon at least two Business Days' prior written
or telecopy notice (or telephone notice promptly
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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 Commitment, the Borrower shall repay or prepay all its
outstanding Loans (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 Commitment, 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
Commitment, 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 Restricted Subsidiary of the Borrower receives Net Cash Proceeds from an
Asset Disposition (this provision shall not in and of itself permit the Borrower
to consummate any 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 15% of the Consolidated Tangible Assets
of the Borrower and its Restricted Subsidiaries on any such date of receipt (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 Revolving Loan) an amount equal to such Excess Proceeds. The Revolving Loans
so prepaid will result in an automatic and permanent reduction of the Commitment
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
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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 and the principal amount of each Borrowing (or
portion thereof) to be prepaid. 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 the
Commitment. Whenever and on each occasion that the Total Exposure exceeds the
Commitment, 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 Commitment.
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
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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 or Competitive 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
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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 Competitive Loan was made.
SECTION 2.14. Change 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.
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(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.
SECTION 2.15. 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
or Competitive 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 or
Competitive 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.
SECTION 2.16. 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 Commitment 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 Pro Rata Percentages of the Commitment (or, if the Commitment
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 Competitive Borrowing, in accordance with the respective
principal amounts of their outstanding Competitive Loans comprising such
Competitive Borrowing. Each payment of interest on any Competitive Borrowing
shall be allocated pro rata among the Lenders participating in such Competitive
Borrowing in accordance with the respective amounts of accrued and unpaid
interest on their outstanding Competitive Loans comprising such
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Competitive Borrowing. For purposes of determining the available Commitment of
the Lenders at any time, each outstanding Competitive Borrowing shall be deemed
to have utilized the Commitment (including those Lenders which shall not have
made Loans as part of such Competitive Borrowing) in accordance with each
Lender's Pro Rata Percentage of the Commitment. 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.
SECTION 2.17. 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.
SECTION 2.18. 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.
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(b) Whenever any payment (including principal of or interest on any
Borrowing or Competitive 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.
SECTION 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 any 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
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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
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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 or Competitive 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
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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 Commitment 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 portion of the Commitment is
being assigned, of
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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,
Competitive 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.
SECTION 2.21. 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 Commitment remains 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 Commitment exceeds the Total
Exposure on the
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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
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 and (B) the Total Exposure (after giving effect to
the issuance of such Letter of Credit) shall not exceed the 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
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 Revolving Loan
Maturity Date.
(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
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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 Restricted 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.
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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 2.08 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
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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), or if
the maturity of the Loans has been accelerated automatically pursuant to Article
VII, as a result of the happening on an event described in paragraph (g) or (h)
thereof, forthwith, without notice of any kind, 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.
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ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the
Issuing Bank and each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of its
Restricted 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.
SECTION 3.02. 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 Restricted
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 Restricted 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 Restricted
Subsidiary of the Borrower.
SECTION 3.03. 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.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be
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required in connection with the Transactions, except for such as have been made
or obtained and are in full force and effect.
SECTION 3.05. Financial Statements. The Borrower 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, 1996, 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, 1997. Such financial statements present fairly the
financial condition and results of operations and cash flows of the Borrower 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 operating performance projections
submitted prior to the Closing Date by the Borrower to the Administrative Agent
for the years 1997 through 2002 were prepared in good faith, and management
believes them to be based on reasonable assumptions and to fairly present the
projected financial condition and results of operations of the Borrower and its
Restricted Subsidiaries based upon management's good faith estimates about the
business, the relevant industries and the general economy as of the date of such
projections. The parties hereto understand that such projections were not
prepared as part of the Borrower's customary planning process, have not been
subject to the same level of scrutiny and review as the Borrower undertakes in
its annual business planning and budgeting process, and have not been reviewed
and approved by the Borrower's Board of Directors.
SECTION 3.06. 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 Restricted Subsidiaries, taken as a
whole, since June 30, 1997.
SECTION 3.07. Title to Properties; Possession Under Leases.
(a) Each of the Borrower and its Restricted 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 Restricted 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
Restricted Subsidiaries enjoys peaceful and undisturbed possession under all
such material leases.
(c) Each of the Borrower and its Restricted 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
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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.
SECTION 3.08. 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.
SECTION 3.09. Litigation; Compliance 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.
SECTION 3.10. 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, 1996,
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 Restricted 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.
SECTION 3.11. Federal Reserve 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.
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(b) No part of the proceeds of any Loan, Competitive 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 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.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans, Competitive Loans and will request the issuance of Letters of Credit
only (a) for the refinancing of existing indebtedness of the Borrower, (b) to
fund strategic acquisitions and mergers (and other similar corporate
transactions which have the same effect as a merger or acquisition) in each case
that are permitted by this Agreement and the other Loan Papers, (c) for working
capital and (d) for other general corporate purposes.
SECTION 3.14. Tax Returns. Each of the Borrower and its Restricted
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 such Restricted
Subsidiary, as applicable, shall have set aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. No 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 included herein or
delivered pursuant hereto contained, contains or will contain 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.
SECTION 3.16. 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.
SECTION 3.17. Solvency.
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(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 or Competitive 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.
SECTION 3.18. 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 Restricted 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 Restricted
Subsidiaries have insurance in such amounts and covering such risks and
liabilities as are in accordance with normal industry practice.
SECTION 3.19. 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 Restricted
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 Restricted Subsidiary of the Borrower,
or for which any claim may be made against the Borrower or any Restricted
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 Restricted 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
Restricted Subsidiary of the Borrower is bound.
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SECTION 3.20. 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; and
(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. 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 the Revolving Loans or the Competitive
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
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by the Administrative Agent or any Lender, or by the making of any Loan or
Competitive Loan under this Agreement and the other Loan Papers.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans or Competitive Loans and of
the Issuing Bank to issue Letters of Credit hereunder are subject to the
satisfaction of the following conditions:
SECTION 4.01. 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.
SECTION 4.02. 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 the Senior Vice
President, Legal and General Counsel of the Borrower and its Subsidiaries in
connection with the Transactions in each case (y) dated the Closing Date, and
(z) covering such other matters relating to this Agreement and the Transactions
as the Administrative Agent shall reasonably request in form reasonably
acceptable
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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.
(b) All legal matters incident to this Agreement, the Borrowings, 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 Restricted 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 Restricted
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 Restricted 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 Restricted 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 Restricted
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 Restricted 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 Restricted Subsidiaries, and
(E) 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), (h),
(i) and (j) 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
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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) All governmental and third party approvals necessary or advisable in
connection with the Transactions, and the continuing operations of the Borrower
and its Restricted 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 Transactions.
(h) 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.
(i) 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 Transactions
contemplated thereby or otherwise, which would be likely in the reasonable
opinion of the Required Lenders to have a Material Adverse Effect.
(j) 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 on the Closing Date after giving effect to the consummation
of this Agreement and the Loan Papers.
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 Commitment has 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 Restricted
Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties.
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(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.
SECTION 5.02. 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.
SECTION 5.03. 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.
SECTION 5.04. 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 Restricted 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
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& 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
Restricted 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 Restricted 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
Restricted 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 6.09 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.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice of
the following:
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(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.
SECTION 5.06. 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 $5,000,000, 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
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).
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans,
Competitive Loans and request the issuance of Letters of Credit only (a) for the
refinancing of existing indebtedness of the Borrower, (b) to fund strategic
acquisitions and mergers (and other similar corporate transactions which have
the same effect as a merger or acquisition) in each case that are permitted by
this Agreement and the other Loan Papers, (c) for working capital and (d) for
other general corporate purposes.
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SECTION 5.09. Compliance with Environmental 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.
SECTION 5.10. 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 Commitment has 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 Borrower and the Restricted
Subsidiaries of the Borrower. The Borrower shall not, and shall not cause or
permit any of its Restricted Subsidiaries to, issue any Preferred Stock, or to
issue, incur, create, assume or permit to exist any Indebtedness, except:
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(a) so long as there exists no Default or Event of Default immediately
prior to and after giving effect to the incurrence of any such Indebtedness or
the issuance of any such Preferred Stock, the Borrower may incur Indebtedness or
issue Preferred Stock;
(b) Indebtedness of the Borrower and any Restricted 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;
(c) Indebtedness of any Restricted Subsidiary of the Borrower owed to
the Borrower or to a Wholly Owned Subsidiary that is also a Restricted
Subsidiary of the Borrower that does not otherwise violate any provision of this
Agreement or any other Loan Paper; and
(d) so long as there exists no Default or Event of Default at the time
of its incurrence, secured Indebtedness of any Restricted Subsidiary of the
Borrower up to an aggregate maximum amount outstanding at any one time for all
such Indebtedness of $10,000,000.
SECTION 6.02. Liens. The Borrower will not, and will not cause or
permit any of its Restricted 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 Restricted 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 Restricted
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 Restricted 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 Restricted 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 Restricted 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;
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(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 Restricted Subsidiaries; and
(h) Liens on assets of the Restricted Subsidiaries of the Borrower
securing Indebtedness of the Restricted Subsidiaries of the Borrower that is
permitted to be incurred by Section 6.01(d) hereof.
SECTION 6.03. Sale and Lease Back Transactions; Off-Balance Sheet
Financings. The Borrower will not, and will not cause or permit any of its
Restricted 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 Restricted 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 Restricted 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.
SECTION 6.04. Investments, Acquisitions, Loans and Advances. The
Borrower will not, and will not cause or permit any of its Restricted
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;
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(b) Permitted Investments;
(c) Investments consisting of loans or advances to (i) a Wholly Owned
Subsidiary that is a Restricted Subsidiary, provided that such loans or advances
are not subordinated to any other Indebtedness or other obligations of such
Restricted Subsidiary and rank pari passu with all senior, unsecured
Indebtedness of such Restricted Subsidiary, or (ii) employees of the Borrower or
the Wholly Owned Subsidiaries that are Restricted 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 Wholly Owned Subsidiary of the
Borrower that is also a Restricted Subsidiary, provided that, immediately after
giving effect thereto, (i) the ratio of such Restricted Subsidiary's
consolidated liabilities (less borrowings by such Restricted 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 Restricted 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;
(e) Investments consisting of non-cash consideration received in
connection with a sale or disposition of assets permitted under Section 6.05
hereof; and
(f) so long as there exists no Default or Event of Default at the time
any such Investment is made, Investments (other than Investments described in
clauses (a) through (e) above) 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.
SECTION 6.05. Mergers, Consolidations and Sales of Assets. The
Borrower will not, and will not cause or permit any of its Restricted
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 that is also a Restricted
Subsidiary may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (ii) any Wholly Owned Subsidiary that is also a
Restricted Subsidiary may merge into or consolidate with any other Wholly Owned
Subsidiary that is also a Restricted Subsidiary in a transaction in which the
surviving entity is a Wholly Owned Subsidiary that is also a Restricted
Subsidiary and no Person other than the Borrower or a Wholly Owned Subsidiary
that is also a Restricted Subsidiary receives any consideration; or
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(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 (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) 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 15% of
Consolidated Tangible Assets applied in accordance with the terms of Section
2.12(c) hereof to repay the Loans and reduce the Commitment, and (iii) in
addition to (i) and (ii) above, 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 Ability of
Subsidiaries to Pay Dividends. The Borrower will not, and will not cause or
permit any of its Restricted 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
Restricted 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 (each, a
"Restricted Payment"); provided, however, that (a) any Restricted Subsidiary of
the Borrower may declare and pay any Restricted Payment to another Wholly Owned
Subsidiary that is also a Restricted Subsidiary or to the Borrower, (b) so long
as there exists no Default or Event of Default both before and after giving
effect to such Restricted Payment, 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, (c) until the later of (i) January 1,
1999 and (ii) such time as the Leverage Ratio is less than 2.50 to 1.00 for
three consecutive months and after giving effect to any proposed Restricted
Payment, and so long as in each case there exists no Default or Event of Default
both before and after giving effect to such Restricted Payment, the Borrower may
make Restricted Payments which, in the aggregate for all such Restricted
Payments over the term of this Agreement, do not exceed the sum of (A)
$10,000,000 plus (B) Free Cash Flow over the term of this Agreement, and (d)
after the later of (i) January 1, 1999 and (ii) such time as the Leverage Ratio
is less than 2.50 to 1.00 for three consecutive months and after giving effect
to any proposed Restricted Payment, and so long as in each case there exists no
Default or Event of Default both before and after giving effect to such
Restricted Payment, the Borrower may make Restricted Payments.
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SECTION 6.07. 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 Restricted 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 Restricted 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
Restricted 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 Restricted 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
Restricted Subsidiary of the Borrower from performing and complying with its
obligations under 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). 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.
SECTION 6.08. Limitation on Restrictive Agreements. The Borrower will
not, and will not cause or permit any of its Restricted 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 Restricted Subsidiaries, other than restrictions on the
granting of Liens on, or the transfer of, assets that are encumbered by Liens
permitted under clauses (b) and (h) of Section 6.02 hereof with respect to the
property or assets covered by such Lien only.
SECTION 6.09. 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, 1999 3.00 to 1.00
January 1, 2000 and thereafter 2.50 to 1.00
In the event that the Borrower shall complete, directly or through a
Restricted Subsidiary of the Borrower, a permitted acquisition, the Leverage
Ratio shall be determined thereafter, to the
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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.
SECTION 6.10. Coverage Ratio. The Borrower will not permit the
Coverage Ratio as of the last day of any fiscal quarter to be less than 4.00 to
1.00. In the event that the Borrower shall complete, directly or through a
Restricted 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.
SECTION 6.11. Amendments to Organizational Documents. The Borrower
will not, and will not cause or permit any of its Restricted 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 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, 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;
(b) default shall be made in the payment of any principal of any Loan or
Competitive 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
Competitive Loan or any Fee or L/C Disbursement or any other amount (other than
an amount referred to in
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(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 an aggregate 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
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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) 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; or
(m) 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 (m);
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 any one or more of
the following actions, at the same or different times: (i) terminate forthwith
the Commitment, (ii) declare the Loans or Competitive Loans then outstanding to
be forthwith due and payable in whole or in part, whereupon the principal of the
Loans or Competitive 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 (including,
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without limitation, the L/C Exposure), 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, the Commitment shall automatically terminate and
the principal of the Loans or Competitive 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 and Competitive 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
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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, and may be removed at any time with or
without cause by the action of all Lenders (other than Administrative Lender, if
it is a Lender). 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 or removal
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.
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With respect to the Loans or Competitive 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 (subject to Section
2.03(f)) 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 Pro Rata Percentage of the
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.
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ARTICLE IX
Miscellaneous
SECTION 9.01. 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
6331 San Ignacio Avenue
San Jose, CA 95119
Attn: Brian Steel
Telephone: (408) 360-4700
Telecopy No.: (408) 360-4701
With a copy to:
On Command Corporation
6331 San Ignacio Avenue
San Jose, CA 95119
Attn: Jill Fishbein, Esq.
Telephone: (408) 360-4697
Telecopy No.: (408) 360-4766
With a copy to:
Ascent Entertainment Group., Inc.
One Tabor Center, Suite 2800
1200 17th Street
Denver, Colorado 80202
Attention: Mr. Jim Cronin
Telephone:
Telecopy No.: (303) 595-0823
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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) 508-0988
Telecopier No.: (214) 508-9390
Attention: Ms. Roselyn M. Reid
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.
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SECTION 9.02. 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, Competitive 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, Competitive 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 Commitment has 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 Commitment, 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.
SECTION 9.03. 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.
SECTION 9.04. Successors 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 Pro Rata Percentage of the Commitment
and the Loans, or the Competitive 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 portion of the Commitment, the Issuing Bank)
must give their prior written consent to such assignment (which consent shall
not be unreasonably withheld; provided, however, that Borrower's consent shall
not be required during the continuance of an Event of Default) and (y) the
amount of the Commitment allocated to the assigning Lender that is 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,
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if less, the entire remaining amount of such Lender's Pro Rata Percentage of the
Commitment) and will not result in the unassigned portion, if any, of the
assigning Lender's Pro Rata Percentage of the 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
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 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, or such Lender's Competitive 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 Pro Rata Percentage of the Commitment, 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
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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 Pro Rata Percentage of the
Commitment of, and principal amount of the Loans and Competitive 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 Pro Rata
Percentage of the Commitment and the Loans or Competitive 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
76
<PAGE> 83
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,
Competitive 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
Commitment).
(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 or
Competitive 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
77
<PAGE> 84
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 Pro Rata Percentage of the 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 or Competitive Loans made
by such Lender hereunder and all other amounts accrued for such Lender's account
or owed to it hereunder.
SECTION 9.05. Expenses; 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 or Competitive 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, Competitive Loans or
issuance of Lenders of Credit, or (iii) 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
78
<PAGE> 85
consummation of the transactions contemplated hereby, the repayment of any of
the Loans or Competitive Loans, the expiration of the Commitment, 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.
SECTION 9.06. 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.
SECTION 9.07. 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.
SECTION 9.08. Waivers; 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
79
<PAGE> 86
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 Competitive 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, Competitive 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 2.16 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.
SECTION 9.09. 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
80
<PAGE> 87
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.
SECTION 9.11. 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.
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.
SECTION 9.13. 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.
SECTION 9.14. 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.
SECTION 9.15. Jurisdiction; Consent to Service 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
81
<PAGE> 88
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.
SECTION 9.16. 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
in accordance with its customary procedures for handling confidential
information 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
82
<PAGE> 89
prior to its disclosure thereto by the Borrower, and which are in the case of
Information provided after the date hereof, clearly identified, in good faith 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.
SECTION 9.17. Amendment, Restatement, Extension and Renewal. This
Agreement is a renewal, extension, amendment and restatement of that certain
Existing Credit Agreement, and as such, except for the "Obligations" as defined
in the Existing Credit Agreement (which shall survive, be renewed, extended and
restated by the terms of this Agreement), all other terms and provisions
supersede in their entirety the Existing Credit Agreement. All Loan Papers
executed and delivered in connection with this Agreement shall, to the extent
stated therein, supersede the Loan Papers executed and delivered in connection
with the Existing Credit Agreement (the "Original Loan Papers"), except for the
Liens created under the Original Loan Papers which shall remain valid, binding
and enforceable Liens against the Borrower and each of the Guarantors, as
applicable, and each of the other Persons which granted such Liens.
================================================================================
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
================================================================================
83
<PAGE> 90
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:
--------------------------------
84
<PAGE> 91
THE ADMINISTRATIVE AGENT:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, as Administrative Agent
--------------------------------------
By: Roselyn M. Reid
Its: Vice President
85
<PAGE> 92
LENDERS:
PRO RATA PERCENTAGE: NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, individually as a Lender
.27500000000
Address:
901 Main Street, 64th Floor
Dallas, Texas 75202 -------------------------------------
By: Roselyn M. Reid
Attn: Roselyn M. Reid Its: Vice President
Telephone: (214) 508-0988
Telecopy: (214) 508-9390
86
<PAGE> 93
PRO RATA PERCENTAGE: BANQUE NATIONALE DE PARIS, SAN
FRANCISCO
.07500000000
Address:
180 Montgomery Street, 4th Floor
San Francisco, California 94104 -------------------------------
By:
---------------------------
Attn: Debra H. Wright Its:
Telephone: (415) 956-0707 ---------------------------
Telecopy: (415) 286-8954
-------------------------------
By:
---------------------------
Its:
---------------------------
87
<PAGE> 94
PRO RATA PERCENTAGE: BANQUE PARIBAS
.12500000000
Address:
2029 Century Park East, Suite 3900
Los Angeles, California 90067 -------------------------------
By:
---------------------------
Attn: Darlynn Ernst Its:
Telephone: (310) 551-7350 ---------------------------
Telecopy: (310) 556-3762
-------------------------------
By:
---------------------------
Its:
---------------------------
88
<PAGE> 95
PRO RATA PERCENTAGE: THE FUJI BANK, LIMITED, LOS
ANGELES AGENCY
.10000000000
Address:
333 S. Hope Street, Suite 3900
Los Angeles, California 90071 -------------------------------
By:
---------------------------
Attn: Jay Schwartz Its:
Telephone: (213) 253-4149 ---------------------------
Telecopy: (213) 253-4178
89
<PAGE> 96
PRO RATA PERCENTAGE: KEYBANK NATIONAL ASSOCIATION
.07500000000
Address:
700 Fifth Avenue, 46th Floor
Seattle, Washington 98104 -----------------------------
By:
-------------------------
Attn: Mary Young Its:
Telephone: (206) 684-6085 -------------------------
Telecopy: (206) 684-6035
90
<PAGE> 97
PRO RATA PERCENTAGE: THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
.07500000000
Address:
350 South Grand Avenue, Suite 3000
Los Angeles, California 90071 ---------------------------------
By:
-----------------------------
Attn: Hiroaki Negi Its:
Telephone: (213) 689-6344 -----------------------------
Telecopy: (213) 689-6294
91
<PAGE> 98
PRO RATA PERCENTAGE: THE SUMITOMO BANK, LIMITED, LOS
ANGELES BRANCH
.10000000000
Address:
777 South Figueroa Street, Suite 2600
Los Angeles, California 90017 -------------------------------
By:
---------------------------
Attn: Gail Motonaga Its:
Telephone: (213) 955-0839 ---------------------------
Telecopy: (213) 623-6832
92
<PAGE> 99
PRO RATA PERCENTAGE: CREDIT LYONNAIS LOS ANGELES
BRANCH
.07500000000
Address:
515 South Flower Street -------------------------------
Suite 2200 By:
Los Angeles, California 90071 ---------------------------
Its:
---------------------------
Attn: Glenn Harvey
Telephone: (213) 362-5956
Telecopy: (213) 623-3437
93
<PAGE> 100
PRO RATA PERCENTAGE: BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
.10000000000
Address:
1251 Avenue of the Americas, 12th Floor --------------------------------
New York, New York 10020-1104 By:
----------------------------
Its:
----------------------------
Attn: Emile ElNems
Telephone: (212) 782-4310
Telecopy: (212) 782-4935
94
<PAGE> 1
EXHIBIT 10.12
ON COMMAND CORPORATION
CHANGE OF CONTROL SEVERANCE PLAN FOR EXECUTIVE OFFICERS
DEFINITIONS
"CHANGE OF CONTROL (COC)" shall mean any event as a result any single entity or
"group" (as defined in Rule 13d-5 promulgated under the Securities Exchange Act
of 1934), other than Ascent Entertainment Group, Inc.("Ascent") or a group of
which Ascent is a member, owns more than fifty percent (50%) of the voting stock
of On Command Corporation ("OCC").
"WINDOW PERIOD" shall refer to the 12 month period following a COC.
"PAYOUT TRIGGERS" shall refer to those events which cause the benefits under
this plan to be in effect. Such events are defined as follows:
1. Involuntary Termination by the company for any reason other than death,
disability or cause within one year of the COC; and
2. Voluntary termination for good reason including demotion, salary reduction
or relocation of the office or employee out of state within one year of
the COC.
EXECUTIVES ARE ELIGIBLE FOR THE BENEFITS DESCRIBED BELOW IF, AFTER A COC, ONE OF
THE PAYOUT TRIGGERS SHOULD OCCUR:
SALARY CONTINUATION
For vice presidents and above with 2 or more years of service, 12 months of
salary continuation. For vice presidents and above with less than 2 years of
service, 6 months of salary continuation.
ANNUAL BONUS
If such officer would otherwise have been eligible for an annual bonus with
respect to his or her employment prior to the COC, then such officer would
receive payment of such bonus, prorated to the effective date of his or her
Voluntary or Involuntary termination, payable at the earlier of the date that
such bonus would otherwise be paid, or the end of salary continuation.
FRINGE BENEFITS
During the relevant period of salary continuation, the officers covered under
this plan shall be eligible to participate in OCC's benefit plans as are
generally made available by OCC to it officers. In the event that OCC ceases to
exist, or terminates any such plans, OCC shall either make provision for the
continued coverage of the covered officers, or provide for a lump sum payment
adequate to cover the costs to the officers of similar medical, life and
disability plans.
STOCK OPTIONS
Any stock options held by the employees covered by this plan shall become 100%
vested immediately and remain exercisable for a period of one year.
<PAGE> 1
EXHIBIT 21.1
On Command Corporation's Subsidiaries
On Command Video Corporation
On Command Development Corporation
SpectraVision, Inc.
On Command Canada, Inc.
SpectraVision Barbados
Spectradyne of Bahamas
Spectradyne of Bermuda
Spectradyne of Texas
Spectradyne GMBH
Spectradyne International, Inc.
On Command Hong Kong Limited
On Command Australia Pty Limited
Spectradyne Singapore Pte Limited
On Command (Thailand) Limited
On Command Europe Limited
OCV Iberia, S.A.
<PAGE> 1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement Nos.
333-16957 and 333-33149 of On Command Corporation on Form S-8 of our report
dated February 3, 1999, appearing in this Annual Report on Form 10-K of On
Command Corporation for the year ended December 31, 1998.
/s/ Deloitte & Touche LLP
- - -------------------------------
March 26, 1999
San Jose, California
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial informaton extracted from the financial
statements for the year ended December 31, 1998 and is qualified in its entirety
by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 7,235
<SECURITIES> 0
<RECEIVABLES> 32,167
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 42,035
<PP&E> 279,709
<DEPRECIATION> 0
<TOTAL-ASSETS> 402,968
<CURRENT-LIABILITIES> 48,968
<BONDS> 0
0
0
<COMMON> 302
<OTHER-SE> 189,703
<TOTAL-LIABILITY-AND-EQUITY> 402,968
<SALES> 238,820
<TOTAL-REVENUES> 238,820
<CGS> 103,902
<TOTAL-COSTS> 103,902
<OTHER-EXPENSES> 151,068
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 10,428
<INCOME-PRETAX> (26,075)
<INCOME-TAX> (109)
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</TABLE>
