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Exhibit 10.4
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CREDIT AGREEMENT
among
SUSQUEHANNA MEDIA CO.
THE LENDERS PARTY TO THIS CREDIT AGREEMENT, and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent
----------------------------------
WACHOVIA CAPITAL MARKETS, LLC, as Lead Arranger
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Dated as of February 20, 2004
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TABLE OF CONTENTS
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BACKGROUND OF
AGREEMENT..........................................................................................1
ARTICLE 1
DEFINITIONS................................................................................2
1.1 Defined
Terms..................................................................................2
1.2 Terms
Generally...............................................................................21
1.3. Accounting Terms; Changes in
GAAP.................................................................22
ARTICLE 2 THE
LOANS.................................................................................22
2.1 Revolving Credit
Loans........................................................................22
2.2 Swing
Loans...................................................................................24
2.3 Term
Loans....................................................................................26
2.4 Lenders' Obligations
Several..................................................................33
2.5 Notes;
Registration...........................................................................33
2.6 Borrowing
Notice..............................................................................34
2.7 Fees to
Lenders...............................................................................35
2.8
Interest......................................................................................36
2.9
Purpose.......................................................................................44
2.10 Additional Provisions concerning Prepayments and Failure to
Borrow............................44
2.11 [Intentionally
Omitted.]......................................................................44
2.12 Mitigation Obligations; Replacement of
Lenders................................................45
ARTICLE 3 MECHANICS OF PAYMENTS; TAX
FORMS..........................................................46
3.1 Company
Payment...............................................................................46
3.2 Lender Required
Payment.......................................................................46
3.3 Company Required
Payment......................................................................47
3.4 Tax
Forms.....................................................................................47
3.5
Taxes.........................................................................................48
ARTICLE 4 LETTERS OF
CREDIT.........................................................................50
4.1 Letters of
Credit.............................................................................50
ARTICLE 5 CONDITIONS TO FUNDINGS AND ISSUANCE OF LETTERS OF
CREDIT..................................53
5.1 Conditions to Initial
Funding.................................................................53
5.2 Requirements for Each Loan/Letter of
Credit...................................................57
ARTICLE 6 REPORTING REQUIREMENTS AND
NOTICES........................................................58
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6.1 Financial Data and Reporting Requirements; Notice of Certain
Events...........................58
6.2 Notice of Defaults, Disputes and Other
Matters................................................61
6.3 The ESOP and ERISA
Matters....................................................................63
6.4
Miscellaneous.................................................................................64
6.5
Disclosure....................................................................................65
ARTICLE 7 FINANCIAL
COVENANTS.......................................................................65
7.1 Interest Coverage
Ratio.......................................................................65
7.2 Consolidated Total Leverage
Ratio.............................................................65
7.3 Consolidated Senior Leverage
Ratio............................................................66
7.4 Fixed Charge Coverage
Ratio...................................................................66
7.5 Additional Provisions Respecting Calculation of Financial
Covenants...........................66
ARTICLE 8 BUSINESS
COVENANTS........................................................................67
8.1
Indebtedness..................................................................................67
8.2
Liens.........................................................................................68
8.3 Investments, Loans, Acquisitions,
Etc.........................................................70
8.4 Restricted
Payments...........................................................................73
8.5
Sale-Leasebacks...............................................................................73
8.6 Transactions with Shareholders and
Affiliates.................................................73
8.7 Mergers and
Dispositions......................................................................74
8.8 Management
Fees...............................................................................77
8.9
Existence.....................................................................................78
8.10 Compliance with
Law...........................................................................78
8.11 Payment of Taxes and
Claims...................................................................79
8.12 Tax
Consolidation.............................................................................79
8.13 Compliance with
ERISA.........................................................................79
8.14 Matters Relating to the
ESOP..................................................................80
8.15
Insurance.....................................................................................80
8.16 Maintenance of
Properties.....................................................................81
8.17 Maintenance of Records; Fiscal
Year...........................................................81
8.18
Inspection....................................................................................81
8.19 Exchange of
Notes.............................................................................82
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8.20 Other
Agreements..............................................................................82
8.21 Further
Assurances............................................................................82
8.22 Consistent Action -
Voting....................................................................82
8.23 Type of
Business..............................................................................82
8.24 Control of
Business...........................................................................82
8.25
Shareholders..................................................................................83
8.26 Change in Documents; New
Documents............................................................83
8.27 Payment of Indebtedness;
Subordination........................................................84
8.28 [Intentionally
omitted].......................................................................84
8.29 Compliance with Federal Reserve
Regulations...................................................84
8.30
Filings.......................................................................................85
8.31 Limitations on Certain Restrictive
Provisions.................................................85
8.32 Interest Rate
Protection......................................................................85
8.33 Environmental
Matters.........................................................................85
8.34 Corporate
Separateness........................................................................86
ARTICLE 9 EVENTS OF
DEFAULT.........................................................................86
9.1 Events of
Default.............................................................................86
9.2 Acceleration;
Remedies........................................................................90
9.3 Deposit
Accounts..............................................................................92
ARTICLE 10 REPRESENTATIONS AND
WARRANTIES............................................................92
10.1
Status........................................................................................92
10.2 Power and
Authority...........................................................................94
10.3 No Violation of
Agreements....................................................................94
10.4 Recording, Enforceability and Consent; Validity of Security
Interest..........................94
10.5 Litigation; Compliance with
Laws..............................................................95
10.6 No Burdensome
Agreements......................................................................95
10.7 Condition of Property;
Agreements.............................................................95
10.8
Fees..........................................................................................95
10.9
Licenses......................................................................................95
10.10 Title to Properties;
Liens....................................................................96
10.11 Patents, Trademarks,
Etc......................................................................96
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10.12
Names.........................................................................................96
10.13 Management
Agreement..........................................................................96
10.14 Financial Statements and
Projections..........................................................96
10.15
Changes.......................................................................................97
10.16 Tax Returns and
Payments......................................................................97
10.17
Indebtedness..................................................................................97
10.18 Federal Reserve
Regulations...................................................................97
10.19 Investment Company
Act........................................................................98
10.20 Public Utility Holding Company
Act............................................................98
10.21 Compliance with ERISA and ESOP
Matters........................................................98
10.22 Accuracy and Completeness of
Disclosure......................................................100
10.23 Adequacy of
Capital..........................................................................100
10.24 Absence of Restrictive
Provisions............................................................100
10.25 Environmental
Compliance.....................................................................101
10.26
Solvency.....................................................................................102
10.27
Subordination................................................................................102
ARTICLE 11
MISCELLANEOUS............................................................................102
11.1 Notices; Effectiveness; Electronic
Communication.............................................102
11.2 Duration;
Survival...........................................................................103
11.3 No Implied
Waiver............................................................................103
11.4 Entire Agreement and
Amendments..............................................................104
11.5 Successors and
Assigns.......................................................................104
11.6 Calculations and Financial
Data..............................................................107
11.7 Descriptive
Headings.........................................................................107
11.8 Governing Law; Jurisdiction;
Etc.............................................................107
11.9 WAIVER OF JURY
TRIAL.........................................................................108
11.10
Holidays.....................................................................................108
11.11 Counterparts; Integration; Effectiveness; Electronic
Execution...............................108
11.12 Maximum Lawful Interest
Rate.................................................................109
11.13
Set-off......................................................................................109
11.14
Severability.................................................................................109
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11.15 Expenses; Indemnity; Damage
Waiver...........................................................110
11.16 Treatment of Certain Information;
Confidentiality............................................111
ARTICLE 12
AGENT....................................................................................112
12.1 Appointment and
Authority....................................................................112
12.2 Rights as a
Lender...........................................................................112
12.3 Exculpatory
Provisions.......................................................................112
12.4 Reliance by
Agent............................................................................113
12.5 Delegation of
Duties.........................................................................114
12.6 Resignation of
Agent.........................................................................114
12.7 Non-Reliance on Agent and Other
Lenders......................................................114
12.8 No Other Duties,
etc.........................................................................115
12.9
Expenses.....................................................................................115
12.10 Investigation by
Lenders.....................................................................115
12.11 Amendments, Waivers and
Consents.............................................................115
12.12 Action Upon
Defaults.........................................................................117
12.13
Instructions.................................................................................117
12.14 Sharing of Payments by
Lenders...............................................................117
12.15 Other
Relationships..........................................................................118
LIST OF ADDENDA (EXHIBITS AND
SCHEDULES).......................................................................135
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement"), dated as of the 20th
day of
February, 2004 and effective on the Effective Date (as defined
below), is made
by and among WACHOVIA BANK, NATIONAL ASSOCIATION ("Wachovia"),
individually, as
Issuing Bank and as Agent, the OTHER FINANCIAL INSTITUTIONS
listed on the
signature pages to this Agreement, and SUSQUEHANNA MEDIA CO., a
Delaware
corporation (the "Company"). Wachovia, the financial
institutions listed on the
signature pages to this Agreement and any other financial
institutions which may
become parties to this Agreement from time to time, are
sometimes collectively
referred to as the "Lenders" and individually as a "Lender."
Wachovia, when
acting in its capacity as agent for the Lenders and Issuing
Bank, or any
successor or assign that assumes that position pursuant to the
terms hereof, is
hereinafter sometimes referred to as the "Agent." In connection
with this
Agreement, WACHOVIA CAPITAL MARKETS, LLC has served as Lead
Arranger.
BACKGROUND OF AGREEMENT
The Company is, through its subsidiaries, engaged primarily in
the
radio broadcast and cable television businesses. The Company
currently wishes to
refinance its existing indebtedness (which consists of a senior
bank facility).
In connection therewith, it wishes to terminate and replace the
maximum
aggregate principal amount of its existing bank facility of
$450,000,000, with
$600,000,000 of Commitments under this Agreement, provide
security therefor the
proceeds thereof to be used to refinance certain indebtedness,
finance certain
acquisitions and for general corporate purposes. The obligations
under this
Agreement are senior to those certain senior subordinated notes
and constitute
"Designated Senior Indebtedness" within the meaning of the
Senior Subordinated
Indentures (as defined below) relating to such notes.
The senior bank facility, which is provided for in this
Agreement, is
to be guaranteed by the Company's subsidiaries and secured by
the equity of the
Company owned by Susquehanna Pfaltzgraff Co. and the equity of
its subsidiaries
owned by the Company or other subsidiaries of the Company as
well as by the
material assets (other than real property) of those entities.
Certain terms are
used in this Agreement as defined in Article 1 below.
NOW, THEREFORE, it is agreed:
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ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS.
As used in this Agreement, the following terms shall have the
meanings
specified in this Section unless the context otherwise requires.
Defined terms
in this Agreement shall also mean in the singular number the
plural and in the
plural the singular.
o Accepting Term C Lender: the meaning specified in
Subsection 2.3.8(d) (Commitment for Term C Loans).
o Accumulated Funding Deficiency: any accumulated
funding deficiency as defined in Section 302(a) of ERISA.
o Acquisition: the meaning specified in Subsection
8.3.3 (Acquisitions).
o Adjusted LIBOR: the meaning specified in Subsection
2.8.5 (Definition of Adjusted LIBOR).
o Administrative Questionnaire: an Administrative
Questionnaire in a form supplied by the Agent.
o Adverse Event: the meaning specified in Subsection
9.1.11 (FCC Licenses and Other Franchises).
o Affiliate: with reference to any Person, a spouse of
such Person, any relative (by blood, adoption or marriage) of
such Person within
the third degree, any director, officer or employee of such
Person, any other
Person of which such Person is a partner, member, trustee
director, officer or
employee, and any other Person directly or indirectly
controlling or controlled
by or under direct or indirect common control with such Person.
For purposes of
this definition "control" (including, with correlative meanings,
the terms
"controlled by" and "under common control with"), as used with
respect to any
Person, shall mean (i) the possession, direct or indirect, of
the power to
direct or cause the direction of the management and policies of
such Person,
whether through the ownership of voting securities or by
contract or otherwise
or (ii) the beneficial ownership of 10% or more of the total
voting power of the
Voting Stock (on a fully diluted basis) of such Person.
o Agent: the meaning specified in the preamble to this
Agreement.
o Agreement: this Agreement, as amended, modified or
supplemented from time to time.
o Applicable Margin: the meaning specified in
Subsection 2.8.2 (Applicable Margin).
o Applicable Percentage: with respect to any Lender,
the percentage of the total Commitments represented by such
Lender's Commitment.
If the Commitments have terminated or expired, the Applicable
Percentages shall
be determined based upon the Commitments most recently in
effect, giving effect
to any assignments.
o Approved Fund: any Fund that is administered or
managed by (1) a Lender, (2) an Affiliate of a Lender or (3) an
entity or an
Affiliate of an entity that administers or manages a Lender.
o Assignment and Assumption: an assignment and
assumption entered into by a Lender and an Eligible Assignee
(with the consent
of any party whose consent is required by Section 11.5
(Successors and
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Assigns), and accepted by the Agent, in substantially the form
of Exhibit M or
any other form approved by the Agent.
o Available Commitment: the meaning specified in
Subsection 2.1.2 (Available Commitment).
o Base Rate: the higher of (1) the rate of interest
publicly announced by the Agent from time to time at its
principal office as its
prime commercial lending rate (which rate is not necessarily the
lowest rate
charged by the Agent to its borrowers) and (2) the Federal Funds
Rate plus
one-half of one percent (1/2%).
o Business Day: a day other than a Saturday, Sunday or
day on which commercial banks are required or permitted to close
in
Philadelphia, Pennsylvania, New York, New York or Charlotte,
North Carolina.
o Capital Expenditures: expenditures for fixed or
capital assets determined in accordance with GAAP.
o Capital Lease: a lease with respect to which the
lessee is required to recognize the acquisition of an asset and
the incurrence
of a liability in accordance with GAAP.
o Capital Lease Obligation: with respect to any Capital
Lease, the amount of the obligation of the lessee thereunder
which would in
accordance with GAAP appear on a balance sheet of such lessee in
respect of such
Capital Lease or otherwise be disclosed in a note to such
balance sheet.
o CERCLA: the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time to
time, and all
rules and regulations promulgated in connection therewith.
o Change in Law: the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking
effect of any
law, rule, regulation or treaty, (b) any change in any law,
rule, regulation or
treaty or in the administration, interpretation or application
thereof by any
Governmental Authority or (c) the making or issuance of any
request, guideline
or directive (whether or not having the force of law) by any
Governmental
Authority.
o Change of Control: (1) (A) the Permitted Holders
cease to be the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under
the Exchange Act), directly or indirectly, in the aggregate or
at least 51% of
the total voting power of the voting stock of the Company or (B)
any "person"
(as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other
than one or more Permitted Holders, is or becomes the
"beneficial owner" (except
that for purposes of this clause (B) such person shall be deemed
to have
"beneficial ownership" of all shares that any such person has
the right to
acquire, whether such right is exercisable immediately or only
after the passage
of time), directly or indirectly, of more than 20% of the total
voting power of
the voting stock of the Company (for purposes of this clause (1)
the Permitted
Holders shall be deemed to beneficially own any voting stock of
a corporation
held by any other corporation so long as the Permitted Holders
beneficially own,
directly or indirectly, in the aggregate at least 80% of the
voting power of the
voting stock of such other corporation);
(2) the Company merges with or into another Person or
sells or disposes of all or substantially all of its assets to
any Person, or
any Person merges with the Company, in any such event pursuant
to a transaction
in which the outstanding voting stock of the Company is
converted into or
exchanged for cash, securities or other property, other than any
such
transaction where (A) the outstanding voting stock of the
Company is converted
into or exchanged for (i) voting stock (other than Disqualified
Stock) of the
surviving or transferee corporation and/or (ii) cash, securities
or other
property in an amount which could be paid by the Company as a
Restricted Payment
under this Agreement and the Senior Subordinated Indentures and
(B) immediately
after such transaction no person or group (other than the
Permitted Holders) is
the beneficial owner of 20% or more of the voting power of the
voting stock of
the surviving or transferee corporation on a fully diluted
basis;
(3) during any period of two consecutive years,
individuals who at the beginning of such period constituted the
board of
directors of the Company (together with any new directors whose
election by
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such board of directors or whose nomination for election by the
shareholders of
the Company was approved by a vote of 66 2/3% of the directors
of the Company at
the time of such approval who were either directors at the
beginning of such
period or whose election or nomination for election was
previously so approved)
cease for any reason to constitute a majority of the board of
directors then in
office; or
(4) the liquidation or dissolution of the Company.
o COBRA: the group health plan continuation coverage
requirements of Section 4980B of the Code and Part 6 of Subtitle
B of Title I of
ERISA.
o Code: the Internal Revenue Code of 1986, as amended,
or its predecessor or successor, as applicable, and any Treasury
regulations,
revenue rulings or technical information releases issued
thereunder.
o Collateral: all property of any sort in which the
Company or any Subsidiary of the Company has granted, or
purported to grant, a
security interest or other Lien pursuant to any of the Loan
Documents.
o Comcast: collectively, Lenfest York, Inc., a Delaware
corporation, and Comcast Cable Communications, LLC, a Delaware
limited liability
company and the successor by merger to Lenfest Communications,
Inc.
o Comcast Agreement: an agreement dated November 6,
1992 by and among Comcast, Susquehanna Cable and certain
Subsidiaries of
Susquehanna Cable as amended by a Modification Agreement dated
as of March 24,
1993, a letter dated March 31, 1993, a Third Amendment dated May
17, 1993, a
Fourth Amendment dated November 30, 1993 and a Fifth Amendment
dated April 22,
1999, and as may be further amended, from time to time, by such
amendments as
shall have been approved by the Requisite Lenders or such other
amendments as
are permitted by the terms of this Agreement. The term "Comcast
Agreement" shall
also include the shareholders agreement entered into pursuant to
section 8(g) of
the Comcast Agreement, provided that references in the Loan
Documents to
particular paragraphs or sections of the Comcast Agreement shall
not be
references to paragraphs and sections of such shareholders
agreement.
o Comcast Programming Payments: payments made by
Susquehanna Cable and its Subsidiaries to Comcast to purchase
cable television
programming pursuant to agreements with Comcast in effect from
time to time.
o Comcast Subordination Agreement: the meaning
specified in paragraph (b) of Subsection 5.1.6 (Subordination
Agreements).
o Commitment: the commitment of the Lenders to make
advances under this Agreement.
o Commitment Fee: the meaning specified in Subsection
2.7.1 (Commitment Fees).
o Commitment Fee Base: the meaning specified in
Subsection 2.7.1 (Commitment Fees).
o Company: Susquehanna Media Co., a Delaware
corporation.
o Company Pledge: the meaning specified in paragraph
(b) of Subsection 5.1.5 (Pledge Agreements).
o Company Required Payment: the meaning specified in
Section 3.3 (Company Required Payment).
o Consolidated: with respect to any Person and any
specified Subsidiaries, refers to the consolidation of financial
statements of
such Person and such Subsidiaries and of particular items in
such financial
statements in accordance with GAAP.
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o Consolidated Net Worth: the total of the amounts
shown on the balance sheet of the Company and its Consolidated
Subsidiaries, as
of the end of the most recent fiscal quarter of the Company
ending at least 45
days prior to the taking of any action for the purpose of which
the
determination is being made, as:
(1) the par or stated value of all
outstanding capital stock of the Company, plus
(2) paid-in capital or capital surplus
relating to such capital stock, plus
(3) any retained earnings or earned surplus
less (A) any accumulated deficit and (B) any amounts
attributable to
Disqualified Stock.
o Consolidated Senior Leverage Ratio: the ratio, as
applicable, of
(1) Senior Debt, as at the last day of each fiscal
quarter, to EBITDA for the four fiscal quarters ended on such
date or
(2) Senior Debt, as at the day Indebtedness is
incurred after giving effect to such Indebtedness (or as at the
day another
specified transaction occurs after giving effect to such
transactions), to
EBITDA for the four fiscal quarters ended on, or most recently
prior to, such
date.
o Consolidated Total Leverage Ratio: the ratio, as
applicable, of
(1) Total Debt, as at the last day of each fiscal
quarter to EBITDA for the four fiscal quarters ended on such
date, or
(2) Total Debt as at the day Indebtedness is
incurred, after giving effect to such Indebtedness (or as at the
day another
specified transaction occurs after giving effect to such
transactions), to
EBITDA for the four fiscal quarters ended on, or most recently
prior to, such
date.
o Default Rate: the meaning specified in Subsection
2.8.8 (Default Rate).
o Designated Event: the meaning specified in Subsection
7.5 (Additional Provisions Respecting Calculation of Financial
Covenants).
o Designated Period: the meaning specified in
Subsection 7.5 (Additional Provisions Respecting Calculation of
Financial
Covenants).
o Disqualified Stock: means, with respect to any
Person, any capital stock which by its terms (or by the terms of
any security
into which it is convertible or for which it is
exchangeable):
(1) matures or is mandatorily redeemable for
any reason,
(2) is convertible or exchangeable for
Indebtedness or Disqualified Stock, or
(3) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to
the first
anniversary of the stated maturity of the Notes.
o EBITDA: the sum of (1) the Consolidated Net Income of
the Company for a specified period, plus (2) the sum of the
following to the
extent deducted in such computation of such Consolidated Net
Income:
(a) depreciation expense;
(b) amortization expense;
(c) Interest Expense;
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(d) income tax provision;
(e) non-cash expense;
(f) ESOP Retirement Plan Expenses; and
(g) minority interests in Subsidiaries of the
Company,
minus interest income and non-cash income, plus any prepayment
premium under or
in respect of the Senior Subordinated Notes.
For the purposes of calculating EBITDA for any period (each, a
"Reference
Period"),
(x) if at any time during such Reference Period the
Company or any Subsidiary shall have made any disposition
pursuant to Subsection
8.7.2 (c) or (d) (Sales and Other Dispositions) below, the
EBITDA for such
Reference Period shall be reduced by an amount equal to the
EBITDA (if positive)
attributable to the property that is the subject of such
disposition for such
Reference Period or increased by an amount equal to the EBITDA
(if negative)
attributable thereto for such Reference Period,
(y) if during such Reference Period the Company or
any Subsidiary shall have made an Acquisition pursuant to
Subsection 8.3.3
(Acquisitions), EBITDA for such Reference Period shall be
calculated after
giving pro forma effect thereto as if such Acquisition occurred
on the first day
of such Reference Period, and
(z) if during such Reference Period any station is
subject to any local marketing agreement or time brokerage
agreement entered
into in connection with any disposition permitted under
Subsection 8.7.2(c) or
(d) (Sales and Other Dispositions), the EBITDA for such
Reference Period shall
be reduced by an amount equal to the EBITDA (if positive)
attributable to such
station or increased by an amount equal to the EBITDA (if
negative) attributable
thereto for such Reference Period.
o Effective Date: the meaning specified in Section 5.1
(Conditions to Initial Funding).
o Eligible Assignee: means (1) a Lender, (2) an
Affiliate of a Lender, (3) an Approved Fund, and (4) any other
Person (other
than a natural person) approved by (a) the Agent, (b) in the
case of any
assignment of a Revolving Commitment, the Issuing Bank, and (c)
unless an Event
of Default or Potential Event of Default has occurred and is
continuing, the
Company (each such approval not to be unreasonably withheld or
delayed);
provided that notwithstanding the foregoing, "Eligible Assignee"
shall not
include the Company or any of the Company's Affiliates or
Subsidiaries.
o Employee Pension Plan: any Plan which (1) is
maintained by the Company, any of its Subsidiaries or any ERISA
Affiliate and
(2) is subject to Part 3 of Subtitle B of Title I of ERISA.
o Environmental Laws: any national, state or local law
or regulation (including, without limitation, CERCLA and RCRA)
enacted in
connection with or relating to the protection or regulation of
the environment,
including, without limitation, those laws, statutes, and
regulations regulating
the disposal, removal, production, storing, refining, handling,
transferring,
processing, or transporting of Hazardous Substances, and any
regulations issued
or promulgated in connection with such statutes by any
governmental authority
and any orders, decrees or judgments issued by any court of
competent
jurisdiction in connection with any of the foregoing.
o ERISA: the Employee Retirement Income Security Act of
1974, as amended, and any regulations issued thereunder by the
Department of
Labor or PBGC.
o ERISA Affiliate: (1) any corporation included with
the Company in a controlled group of corporations within the
meaning of Section
414(b) of the Code, (2) any trade or business (whether or not
incorporated)
which is under common control with the Company within the
meaning of Section
414(c) of the Code, and (3) any
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member of an affiliated service group of which the Company is a
member within
the meaning of Section 414(m) of the Code.
o ESOP: an employee stock ownership plan set up by SPC
that complies with Section 401 of the Code and with the
applicable provisions of
Section 409 of the Code.
o ESOP Compensation Expense: the expense related to
funding share allocations in the ESOP.
o ESOP Loan: the loan made on May 15, 1999 to SPC in
the amount of $116.9 million, the loan made to SPC on July 18,
2001 in the
amount of $14.6 million, and any other loan to SPC for purposes
of funding the
ESOP permitted by this Agreement to effect the funding of the
ESOP.
o ESOP Repurchase Payments: the expense related to
repurchase of shares allocated to individuals participating in
the ESOP, whether
upon the retirement of such Persons or otherwise.
o ESOP Retirement Plan Expenses: for purposes of
calculating EBITDA for any period, the amount of ESOP
Compensation Expense
during such period to the extent that such amount is no greater
than the amount
of cash received by the Company from SPC as repayment of
principal and interest
on the ESOP Loan during such period.
o ESOP Sharing Agreement: that certain ESOP sharing
agreement among the Company, its Subsidiaries, SPC and its other
Subsidiaries
dated May 12, 1999 and as further amended on February 9,
2004.
o Eurodollar Business Day: a day on which the relevant
London international financial markets are open for the
transaction of business
contemplated in this Agreement and which is also other than a
Saturday, Sunday
or other day on which commercial banks are required or permitted
to close in
Philadelphia, Pennsylvania, New York, New York or Charlotte,
North Carolina.
o Event of Default: the meaning specified in Section
9.1 (Events of Default).
o Excess Cash Flow: the excess of EBITDA for the
defined period over the sum of (1) scheduled principal payments
(including
capital leases), (2) mandatory prepayments (other than mandatory
prepayments
resulting from prior year excess prepayments) and permanent
voluntary
prepayments, (3) Interest Expense, net of interest income, (4)
Management Fees,
(5) cash taxes paid, including without limitation any tax
distributions under
the Tax Sharing Agreement, (6) Capital Expenditures, and (7)
Restricted
Payments.
o Excluded Taxes: with respect to the Agent, any
Lender, the Issuing Bank or any other recipient of any payment
to be made by or
on account of any obligation of the Company hereunder, (1) taxes
imposed on or
measured by its overall net income (however denominated), and
franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction
(or any
political subdivision thereof) under the laws of which such
recipient is
organized or in which its principal office is located or, in the
case of any
Lender, in which its applicable lending office is located, (2)
any branch
profits taxes imposed by the United States of America or any
similar tax imposed
by any other jurisdiction in which the Company is located and
(3) in the case of
a Foreign Lender (other than an assignee pursuant to a request
by the Company
under Section 2.12 (Mitigation Obligations; Replacement of
Lenders), any
withholding tax that is imposed on amounts payable to such
Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a
new lending
office) or is attributable to such Foreign Lender's failure or
inability (other
than as a result of a Change in Law) to comply with Subsection
3.5.5
(Taxes--Status of Lenders), except to the extent that such
Foreign Lender (or
its assignor, if any) was entitled, at the time of designation
of a new lending
office (or assignment), to receive additional amounts from the
Company with
respect to such withholding tax pursuant to Subsection 3.5.1
(Taxes -Payments
Free of Taxes).
o Excluded Transactions: (1) agreements in existence on
or prior to the Effective Date, (2) the ESOP Loan, (3) payments
of Management
Fees permitted hereunder, (4) payments provided for by the Tax
Sharing
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<PAGE>
Agreement, (5) SPC Expense Reimbursement, and (6) ESOP
Compensation Expenses and
ESOP Repurchase Payments made in conformity with the ESOP
Sharing Agreement.
o Existing Facilities: the meaning specified in
Subsection 5.1.8 (Repayment of Existing Indebtedness).
o Family of Funds: a group of Funds that invests in
bank loans and is managed by a common investment advisor or an
affiliate thereof
or has a common principal underwriter and that has a common
individual who is
designated to receive financial statements, waivers and
amendments and other
notices under this Agreement.
o FCC: the Federal Communications Commission or any
governmental body succeeding to the functions of such
commission.
o FCC License: any radio, microwave, or other
communications license, permit, certificate of compliance,
franchise, approval
or authorization granted or issued by the FCC for control,
ownership,
acquisition, construction or operation of a Permitted
Business.
o Federal Funds Rate: for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted
average of the rates on overnight Federal funds transactions
with members of the
Federal Reserve System arranged by Federal funds brokers on such
day, as
published by the Federal Reserve Bank of New York on the
Business Day next
succeeding such day, provided that (a) if such day is not a
Business Day, the
Federal Funds Rate for such day shall be such rate on such
transactions on the
next Business Day as so published on the next succeeding
Business Day, and (b)
if such rate is not so published for any day, the Federal Funds
Rate for such
day shall be the average rate charged to Agent on such day on
such transactions
as determined by the Agent.
o Final Order: an action by the FCC, any PUC, court or
other governmental authority or other applicable state
regulatory agency as to
which: (i) no request for stay of the action is pending, no such
stay is in
effect, and, if any deadline for filing any such request is
designated by
statute or regulation, it has passed; (ii) no petition for
rehearing or
reconsideration or application for review or appeal of the
action is pending and
the time for filing any such petition or application has passed;
(iii) the FCC,
any PUC, court or other governmental authority or other state
agency, as
applicable, does not have the action under reconsideration on
its own motion and
the time for such reconsideration has passed; and (iv) no appeal
to a court, or
request for stay by a court, of the action is pending or in
effect, and, if any
deadline for filing any such appeal or request is designated by
statute or rule,
it has passed.
o Financial Information: the meaning specified in
Section 6.5 (Disclosure).
o Fixed Charge Coverage Ratio: as of any date of
determination, the ratio of
(1) EBITDA for the four fiscal quarters ended on, or
most recently prior to the date of determination to
(2) the sum of (without duplication):
(a) Scheduled payments of long-term
Indebtedness of the Company and its
Subsidiaries, on a Consolidated basis
(excluding scheduled payments of
Indebtedness under the Existing Facilities),
(b) Interest Expense, net of interest
income,
(c) Capital Expenditures (which shall not
include Acquisitions but shall include
Capital Expenditures associated with
Acquisitions after the date of the
Acquisition),
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<PAGE>
(d) Restricted Payments (other than the
Restricted Payments relating to intercompany
payments referred to in clause (a) of
Section 8.4 (Restricted Payments)), and
(e) cash taxes paid, including without
limitation any tax distributions under the
Tax Sharing Agreement,
in each case made or incurred during the four (4) fiscal
quarters ended on, or
most recently prior to, such date of determination.
o Franchise: a franchise, permit or license (including,
without limitation, an FCC License), designation or certificate
granted by the
United States or any other country, territory or state or a
city, town, county
or other municipality, PUC or any other regulatory authority
pursuant to which a
Person has the right to own, control, acquire, construct or
operate a Permitted
Business.
o Foreign Lender: any Lender that is organized under
the laws of a jurisdiction other than that in which the Company
is resident for
tax purposes. For purposes of this definition, the United States
of America,
each State thereof and the District of Columbia shall be deemed
to constitute a
single jurisdiction.
o Fronting Fees: the meaning specified in Subsection
4.1.5 (Fees).
o Fund: any Person (other than a natural person) that
is (or will be) engaged in making, purchasing, holding or
otherwise investing in
commercial loans and similar extensions of credit in the
ordinary course of its
business.
o GAAP: generally accepted accounting principles
consistently applied, which, as applied to the Company and its
Subsidiaries
shall be consistent with those applied in the preparation of the
financial
statements referred to in Subsection 5.1.12 (Financial
Statements; Projections).
o Governmental Authority: the government of the United
States of America or any other nation, or of any political
subdivision thereof,
whether state or local, and any agency, authority,
instrumentality, regulatory
body, court, central bank or other entity exercising executive,
legislative,
judicial, taxing, regulatory or administrative powers or
functions of or
pertaining to government (including any supra-national bodies
such as the
European Union or the European Central Bank).
o Granting Lender: the meaning specified in Subsection
3.2 (Lender Required Payment).
o Guaranty: as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with
respect to any
indebtedness, lease, dividend or other obligation of another
Person, including,
but not limited to, any such obligation directly or indirectly
guaranteed,
endorsed (otherwise than for collection or deposit in the
ordinary course of
business) or discounted or sold with recourse by such Person, or
in respect of
which such Person is otherwise directly or indirectly liable,
including, but not
limited to, any such obligation in effect guaranteed by such
Person through any
agreement (contingent or otherwise) to purchase, repurchase or
otherwise acquire
such obligation or any security therefor, or to provide funds
for the payment or
discharge of such obligation (whether in the form of loans,
advances, stock
purchases, capital contributions or otherwise), or to maintain
the solvency or
any balance sheet or other financial condition of the obligor of
such
obligation, or to make payment for any products, materials or
supplies or for
any transportation or services regardless of the non-delivery or
nonfurnishing
thereof, in any such case if the purpose or intent of such
agreement is to
provide assurance that such obligation will be paid or
discharged, or that any
agreements relating thereto will be complied with, or that the
holders of such
obligation will be protected against loss in respect thereof. No
Guaranty shall
be permitted by this Agreement unless the maximum dollar amount
of the
obligation being guaranteed is readily ascertainable by the
terms of such
obligation or the agreement or instrument evidencing such
Guaranty specifically
limits the dollar amount of the maximum exposure of the
guarantor thereunder,
and the amount involved in any Guaranty made during any period
shall be the
aggregate amount of the obligation guaranteed (or such lesser
amount as to which
the maximum exposure of the guarantor shall have been
specifically limited),
less any amount
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<PAGE>
by which the guarantor may have been discharged with respect
thereto (including
any discharge by way of a reduction in the amount of the
obligation guaranteed).
o Guarantor: each direct and indirect Subsidiary of the
Company and each other Person that may become a guarantor under
the Subsidiary
Suretyship from time to time.
o Hazardous Substances: any and all pollutants,
contaminants, toxic or hazardous wastes or any other substances
that might pose
a hazard to health or safety, the removal of which may be
required or the
generation, manufacture, refining, production, processing,
treatment, storage,
handling, transportation, transfer, use, disposal, release,
discharge, spillage,
seepage or filtration of which is or shall be restricted,
prohibited or
penalized by any Environmental Law (including, without
limitation, petroleum
products, asbestos, urea formaldehyde foam insulation and
polychlorinated
biphenyls and substances defined as Hazardous Substances under
CERCLA).
o Indebtedness: with respect to any Person (without
duplication):
(a) all indebtedness of such Person for borrowed
money;
(b) all obligations of such Person for the deferred
purchase price of capital assets or for any part of
the deferred purchase price of other property or
services which purchase price for other property or
services is due more than six months (or a longer
period of up to one year, if such terms are available
from suppliers in the ordinary course of business)
from the date of incurrence of the obligation in
respect thereof;
(c) all obligations of such Person evidenced by
notes, bonds (other than performance bonds),
debentures or other similar instruments;
(d) all indebtedness created or arising under any
conditional sale or other title retention agreement
with respect to property acquired by such Person
(even though the rights and remedies of the seller or
lender under such agreement in the event of default
are limited to repossession or sale of such property)
and all other indebtedness secured by a Lien on the
property or assets of such Person;
(e) all Capital Lease Obligations of such Person;
(f) all obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar
facilities;
(g) all obligations in respect of Disqualified Stock
or other obligations of such Person to purchase,
redeem, retire, defease or otherwise acquire for
value any capital stock of such Person or any
warrants, rights or options to acquire such capital
stock, which obligations shall be valued, in the case
of redeemable preferred stock, at the greater of its
voluntary or involuntary liquidation preference plus
accrued and unpaid dividends and, in the case of
other such obligations, at the amount that, in light
of all the facts and circumstances existing at the
time of determination, can reasonably be expected to
become payable;
(h) a Guaranty of such Person, provided that a
Guaranty shall not be considered Indebtedness if the
underlying obligation that is guaranteed is taken
into account in computing Consolidated Net Income of
the Company and its Subsidiaries (e.g., operating
leases of Subsidiaries guaranteed by the Company or
another Subsidiary);
(i) all Indebtedness referred to in clauses (a)
through (g) above secured by (or which the holder of
such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract
rights) owned by such Person, even though such Person
has not assumed or become liable for the payment of
such Indebtedness;
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<PAGE>
(j) all unfunded pension liabilities;
(k) all payments required by such Person under
non-compete agreements;
(l) all obligations in respect of Interest Rate
Protection Agreements; and
(m) all obligations of such Person that are the
functional equivalent of the Indebtedness referred to
in clauses (a) through (d) such as synthetic lease
obligations.
o Indemnified Taxes: Taxes other than Excluded Taxes.
o Indemnitees: the meaning specified in Section 11.15
(Expenses; Indemnity; Damage Waiver).
o Interest Coverage Ratio: as at any date of
determination, the ratio of (i) EBITDA to (ii) Interest Expense
net of interest
income, in each case for the four fiscal quarters ended on, or
most recently
prior to, such date of determination.
o Interest Expense: for any period, the sum of (1) the
amount of interest accrued on, or with respect to, Consolidated
Indebtedness for
such period, including without limitation imputed interest on
Capital Leases and
imputed or accreted interest in respect of deep discount or zero
coupon
obligations, but excluding any prepayment premium under or in
respect of the
Senior Subordinated Notes, plus (2) the net amount payable under
all Interest
Rate Protection Agreements in respect of such period (or minus
the net amount
receivable under Interest Rate Protection Agreements in respect
of such period),
in each case excluding mark to market adjustments. For purposes
of calculating
Interest Expense, it shall be assumed that any Guaranties
constituting
Indebtedness will require payments of interest, if any, in the
amounts as called
for in the underlying obligation which is the subject of the
Guaranty.
o Interest Period: the meaning specified in paragraph
(a) of Subsection 2.8.4 (LIBOR Election).
o Interest Rate Protection Agreement: an interest rate
swap, cap or collar agreement or similar arrangement between any
Person and a
financial institution providing for the transfer or mitigation
of interest risks
either generally or under specific contingencies.
o Investment: as applied to any Person, any direct or
indirect purchase or other acquisition by such Person of stock
or other
securities of any other Person, or any direct or indirect loan,
advance (other
than advances to employees for moving and travel expenses in
amounts which are
immaterial both individually and in the aggregate), or capital
contribution by
such Person to any other Person, including all Indebtedness and
accounts
receivable from such other Person which are not current assets
or did not arise
from sales to such other Person in the ordinary course of
business. For purposes
of this Agreement, as applied to the Company or any Subsidiary
thereof, an
Investment shall include any purchase of a minority interest in
any Subsidiary
of the Company regardless of how that purchase is structured
including, without
limitation, a repurchase or redemption of shares that is
expressly excluded from
the definition of "Restricted Payment."
o Issuing Bank: Wachovia so long as it is a Lender, or
if Wachovia is no longer a Lender, a Lender designated by the
Company and
acceptable to the Agent.
o Lenders: each of the Persons that execute this
Agreement as a Lender (including, without limitation, the Swing
Lender) together
with any other Persons which become parties to this Agreement as
a Lender from
time to time.
o Lender's Interest: the meaning specified in Section
6.5 (Disclosure).
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<PAGE>
o Lender Required Payment: the meaning specified in
Section 3.2 (Lender Required Payment).
o Letters of Credit: letters of credit issued pursuant
to this Agreement.
o Letter of Credit Fees: the meaning specified in
Subsection 4.1.5 (Fees).
o Letter of Credit Sublimit: the meaning specified in
Subsection 4.1.1 (Commitment to Issue Letters of
Credit).
o Lien: as to any Person, any mortgage, lien, pledge,
adverse claim, charge, security interest or other encumbrance in
or on, or any
interest or title of any vendor, lessor, lender or other Senior
Secured Party to
or of such Person under any conditional sale or other title
retention agreement
or Capital Lease with respect to, any property or asset of such
Person.
o Loans: the amounts loaned to the Company pursuant to
this Agreement. Loans may be Revolving Loans, Swing Loans or
Term Loans.
o Loan Documents: this Agreement, the Notes, the
Subsidiary Suretyship, the Pledge Agreements, the Subordination
Agreements, the
Security Agreement and any and all agreements, documents and
instruments
executed, delivered or filed pursuant to this Agreement, as the
same may be
amended, modified or supplemented from time to time; in
addition, solely for
purposes of the references to "Loan Documents" in the Subsidiary
Suretyship, the
Subordination Agreements, the Security Agreement, the Trademark
Collateral
Agreement, and the Pledge Agreements (or any other Loan
Document) or to the
extent necessary to afford the obligations under the documents
referred to below
the status of being guaranteed and secured pari passu with the
other obligations
hereunder, the term "Loan Document" shall also be deemed to
include Interest
Rate Protection Agreements which have been entered into in
compliance with
Section 8.32 (Interest Rate Protection) in favor of one or more
Lenders or their
Affiliates and all agreements, instruments and other documents
relating to
Letters of Credit.
o Management Agreement: that certain Management
Agreement between the Company and SPC dated as of May 12,
1999.
o Management Fees: for any period, all fees and other
amounts payable to SPC under the Management Agreement
(including, without
limitation, fees due, amounts accrued, and overhead and
administrative costs
allocated by SPC to the Company or any Subsidiary of the
Company), but not SPC
Expense Reimbursement.
o Material Assets: inventory, accounts receivable,
equipment, investment property, instruments (other than the
notes in respect of
the ESOP Loan) and general intangibles as defined in the Uniform
Commercial
Code, provided, however, notwithstanding the foregoing, it is
acknowledged that
FCC licenses may not be effectively pledged under existing law.
Therefore, the
Company and the Guarantors will pledge the proceeds of such
licenses and what
ever other rights respecting the FCC licenses may be pledged and
will pledge the
equity of the entities that hold the FCC licenses. Further, the
Company will not
be required to file fixture financing statements except as
specifically
requested by the Administrative Agent.
o Material Adverse Change: either (1) any material
adverse change in the business, financial condition, nature of
assets,
operations or properties of (a) the Company and its Subsidiaries
taken as a
whole, (b) Susquehanna Cable and its Subsidiaries taken as a
whole, or (c)
Susquehanna Radio and its Subsidiaries taken as a whole or (2)
any material
adverse change in the business, condition (financial or
otherwise), operations,
properties or prospects of the Company or any of its
Subsidiaries, individually,
if such change could result in the insolvency or dissolution of
such Person or
in the loss of control (by the current holder thereof) over such
Person's
assets.
o Material Adverse Effect: any material adverse effect
on:
(1) the business, condition (financial or
otherwise), operations or properties of (a) the Company and
its Subsidiaries taken as a whole, (b) Susquehanna Cable and
its Subsidiaries
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<PAGE>
taken as a whole, (c) Susquehanna Radio and its Subsidiaries
taken as a whole, or (d) the Company or any of its
Subsidiaries, individually, if such material adverse effect
on
the business (financial or otherwise), operations, or
properties of the Company or any of its Subsidiaries
individually, could result in the insolvency or dissolution
of
such Person or in the loss of control (by the current holder
thereof) over such Person's assets,
(2) the ability of SPC, the Company or any
of the Company's Subsidiaries to perform their respective
obligations under the Loan Documents,
(3) the binding nature, validity or
enforceability of any of the Loan Documents as an obligation
of SPC, the Company or the Company's Subsidiaries to the
extent they are parties to such documents, or
(4) the validity, perfection, priority or
enforceability of the Liens granted to Agent for the benefit
of the Issuing Bank, the Lenders and other Senior Secured
Parties in respect of the property of SPC, the Company and
the
Company's Subsidiaries.
o Maturity Date: the latest of the Revolver Maturity
Date, the Term A Maturity Date and the Term B Maturity Date.
o Month: a period from and including a given day in a
calendar month to the day in the subsequent calendar month
numerically
corresponding to such given day except that (1) if there is no
numerical
correspondent in such subsequent calendar month, or (2) if such
given day is the
last day of a calendar month, such day shall be the last day of
such subsequent
calendar month.
o Multiemployer Plan: means a multiemployer pension
plan as defined in Section 3(37) of ERISA to which the Company,
any of its
Subsidiaries or any ERISA Affiliate is or has been required to
contribute
subsequent to September 25, 1980.
o Net Cash Proceeds: for any issuance or sale of equity
securities or debt securities or instruments, the cash proceeds,
payable in U.S.
Dollars received from such issuance or incurrence, net of (1)
reasonable legal,
accounting, and investment banking fees, underwriting discounts
and sales
commissions and other customary fees and expenses actually
incurred in
connection therewith and (2) taxes paid or payable as a result
thereof; it being
understood that "Net Cash Proceeds" shall include, without
limitation, any cash
received upon the sale or other disposition of any non-cash
consideration
received by SPC, the Company, or any of its Subsidiaries in
respect of such
equity issuance or debt issuance.
o Net Income: for any period, the aggregate net income
(or loss) of the Company and its Subsidiaries for such period on
a consolidated
basis, provided, the following items shall be excluded from the
calculation of
Net Income:
(1) after-tax gains and losses from asset sales or
abandonment or reserves relating thereto;
(2) items classified as extraordinary, nonrecurring
or unusual gains, losses or charges, and the related tax
effects, each
determined in accordance with GAAP;
(3) the net income of any Person acquired in a
"pooling of interests" transaction accrued prior to the date it
becomes a
Subsidiary of the Company or is merged or consolidated with the
Company or any
Subsidiary of the Company;
(4) the net income (but not loss) of any Subsidiary
of the Company to the extent that the declaration of dividends,
the making of
intercompany loans or similar payments by that Subsidiary of
that income is
restricted by a contract, operation of law or otherwise;
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<PAGE>
(5) the net income of any Person, other than a
Subsidiary of the Company, except to the extent of cash
dividends or
distributions paid to the Company or a Subsidiary of the Company
by such Person;
(6) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve
was made out of
Consolidated Net Income accrued at any time after December 31,
2003;
(7) income or loss attributable to discontinued
operations (including operations disposed of during such period
whether or not
such operations were classified as discontinued); and
(8) in the case of a successor to the Company by
consolidation or merger or as a transferee of the Company's
assets, any earnings
of the successor corporation prior to such consolidation, merger
or transfer of
assets.
o Net Proceeds: for any sale, lease, transfer or other
disposition of any asset, or for any sale or issuance of any
security, by any
Person, the aggregate amount of cash consideration received by
such Person for
such asset or security, including cash payments received in
respect of a
promissory note issued as part of the original consideration in
such
transaction, after deducting therefrom
(1) the amount of such proceeds required to
be applied to repay Indebtedness secured by any asset
so disposed of, other than Indebtedness to the
Lenders under the Loan Documents (including
indebtedness in respect of Interest Rate Protection
Agreements),
(2) reasonable brokerage commissions, legal
fees, finders' fees and other similar fees and
commissions and related expenses incurred by such
Person in connection with such transaction,
(3) taxes payable in connection with or as a
result of such transaction or, if applicable, held in
reserve to pay taxes when due, and
(4) other reasonable out-of-pocket costs
incurred in connection therewith by such Person,
in the case of each of clauses (1), (2), (3), and (4) above to
the extent, but
only to the extent, that the amounts so deducted are, at the
time of receipt of
such cash, paid to a Person that is not an Affiliate of such
Person (or, if paid
to such an Affiliate, to the extent the terms of such payment
are no more
favorable to such Affiliate than such terms would be in an
arm's-length
transaction) and are properly attributable to such transaction
or to the asset
or security that is the subject thereof. All Net Proceeds
received from sales or
dispositions of assets, payable to Lenders pursuant to this
Agreement, shall be
in the form of cash, in U.S. Dollars.
o New Term C Lender: the meaning specified in
Subsection 2.3.8 (Commitment for Term C Loans).
o Notes: the promissory notes delivered by the Company
to the Lenders (including any successors or assigns thereof)
pursuant to this
Agreement (including any amendments, modifications or
supplements which may from
time to time, be created in respect of such notes), and any
replacement
promissory notes issued in lieu of the foregoing.
o Offer: the meaning specified in Subsection 2.3.8
(Commitment for Term C Loans).
o Officers' Compliance Certificate: an Officers'
Certificate in the form of Exhibit L.
o Officers' Certificate: a certificate executed on
behalf of the Company by its President or one of its Vice
Presidents or its
Treasurer.
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<PAGE>
o Other Shareholders: the meaning specified in
paragraph (d) of Subsection 5.1.5 (Pledge Agreements).
o Other Taxes: all present or future stamp or
documentary taxes or any other excise or property taxes, charges
or similar
levies arising from any payment made hereunder or under any
other Loan Document
or from the execution, delivery or enforcement of, or otherwise
with respect to,
this Agreement or any other Loan Document.
o Participant: has the meaning assigned to such term in
clause (d) of Section 11.5 (Successors and Assigns).
o PBGC: Pension Benefit Guaranty Corporation, or any
governmental agency or instrumentality succeeding to the
functions thereof.
o Permitted Businesses: owning, operating, managing and
maintaining domestic cable television systems, radio
broadcasting stations and
businesses directly related thereto, including marketing
research, internet,
telephony and high speed data transmission services.
o Permitted Holders: (1) descendants, and spouses of
descendants, of Louis J. Appell, Sr. (including any trusts
established for the
benefit of one or more such descendants or spouses of such
descendants of which
one or more of such descendants or spouses of such descendants
are trustees
together with officers of SPC or its Subsidiaries and/or the
trust department of
a financial institution) and (2) the ESOP so long as executive
officers of SPC
constitute the majority of the ESOP committee under ESOP.
o Permitted Lien: the meaning specified in Subsection
8.2.1 (Liens - In General).
o Permitted Non-wholly Owned Subsidiaries: the meaning
specified in Subsection 8.3.2 (Investments).
o Person: any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership,
governmental authority or other entity.
o Plan: an "Employee Pension Benefit Plan" (as defined
in Section 3(2) of ERISA) or an "Employee Welfare Benefit Plan"
(as defined in
Section 3(3) of ERISA) which is or has been established or
maintained, or to
which contributions are or have been made, by SPC, the Company,
any of its
Subsidiaries or any ERISA Affiliate (or any predecessor
thereof).
o Pledge Agreements: the Company Pledge, the Subsidiary
Pledge, and the SPC Pledge, collectively.
o Potential Event of Default: any condition or event
specified in Article 9 (Events of Default) which, with notice or
lapse of time
or both, would become an Event of Default.
o Pro Forma Basis: calculation of the financial
covenants specified in Article 7 (Financial Covenants) in
connection with an
Acquisition, disposition or other specified transaction with the
following
adjustments: (1) EBITDA shall be adjusted in the manner set
forth in the last
sentence of such definition to take account of such Acquisition
or disposition
or other specified transaction and any other Acquisition or
disposition or other
specified transaction which has occurred during the period to
which such
calculations relate and (2) Consolidated Indebtedness and any
interest expense
related thereto of the Company and its Subsidiaries shall be
adjusted to reflect
Indebtedness incurred or paid in connection with such
Acquisition, disposition
or other specified transaction and any other Acquisition,
disposition or other
specified transaction which has occurred during the relevant
period.
o PUC: any state or local regulatory agency or body
that exercises jurisdiction over the ownership, construction or
operation of
Permitted Businesses.
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o PUC Franchise: any Franchise granted or issued by any
PUC.
o Quarterly Payment Date: the last Business Day of each
March, June, September and December.
o Radio License Subsidiaries: the Subsidiaries of the
Company whose sole activity is to hold FCC Licenses and grant
rights to use such
FCC Licenses to other Subsidiaries of the Company that use such
FCC Licenses to
operate their respective radio broadcast businesses.
o RC Lender: each Lender designated as an "RC Lender"
on Schedule 1.1 hereto and each successor and assign
thereof.
o RCRA: the Resource Conservation and Recovery Act of
1976, as amended, and any rules and regulations issued in
connection therewith.
o Registered Lender: the meaning specified in
Subsection 2.5(c) (Delivery of Tax Forms).
o Registered Note: the meaning specified in Subsection
2.5(b) (Request for Registration).
o Regulatory Change: with respect to any Lender, any
change or implementation after the date of this Agreement in
United States
federal, state or foreign laws or regulations, including,
without limitation,
the issuance of any final regulations or guidelines, or the
adoption or making
after such date of any interpretations, directives or requests
applying to a
class of banks, including any such Lender, of or under any
United States federal
or state, or any foreign, laws or regulations (whether or not
having the force
of law) by any court or governmental or monetary authority
charged with the
interpretation or administration thereof.
o Related Parties: with respect to any Person, such
Person's Affiliates and the directors, officers, employees,
agents and advisors
of such Person and of such Person's Affiliates.
o Release: a release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal,
leaching or
migration into the indoor or outdoor environment or into or out
of any property,
including the movement of Hazardous Substances through or in the
air, soil,
surface water, groundwater or property.
o Remedial Action: actions necessary to comply with any
Environmental Law with respect to (1) clean up, removal,
treatment or handling
Hazardous Substances in the indoor or outdoor environment; (2)
prevention of
Releases or threats of Releases or minimization of further
Releases of Hazardous
Substances so they do not migrate or endanger or threaten to
endanger public
health or welfare or the indoor or outdoor environment; or (3)
performance of
pre-remedial studies and investigations and post-remedial
monitoring and care.
o Reorganization: any reorganization as defined in
Section 4241(a) of ERISA.
o Reportable Event: with respect to any Employee
Pension Plan, an event described in Section 4043(c) of
ERISA.
o Requisite Lenders: at any time, Lenders having
greater than or equal to Fifty-One percent (51%) of the Total
Facility. For
purposes of this definition, "Total Facility" means,
collectively, at any time
(1) the Revolving Credit Commitment (whether borrowed or not)
and (2) the
outstanding principal amount of the Term Loans, but shall
exclude any Revolving
Credit Commitment or Term Loans of Lenders who have forfeited
their right to
vote under the terms of this Agreement.
o Reserve Percentage: the meaning specified in
Subsection 2.8.5 (Definition of Adjusted LIBOR).
o Restricted Payment: (1) any dividend or other
distribution, direct or indirect, on account of any shares of
any class of stock
or ownership interest of the Company or any of its Subsidiaries,
as the case may
be, now
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or hereafter outstanding, except a dividend payable solely in
shares of stock
(other than Disqualified Stock) of the Company or such
Subsidiary, as the case
may be;
(2) any redemption, retirement, purchase or other
acquisition, direct or indirect, of any shares of any class of
stock or
ownership interest of the Company or any of its Subsidiaries, as
the case may
be, now or hereafter outstanding, or of any warrants, rights or
options to
acquire any such shares or interests, except to the extent that
the
consideration therefor consists solely of shares of stock (other
than
Disqualified Stock) of the Company or such Subsidiary, as the
case may be, and
other than purchases of minority interests in the Subsidiaries
of the Company
from Persons that hold minority interests in the Company or its
Subsidiaries on
the date of this Agreement (it being understood that such
purchases are subject
to the provisions of Section 8.3 (Investments, Loans,
Acquisitions, Etc.) above
and other relevant provisions of this Agreement);
(3) any sinking fund, other prepayment or installment
payment on account of any shares of stock or ownership interests
of the Company
or any of its Subsidiaries, as the case may be;
(4) any other payment, loan or advance to a
shareholder or other equity holder of the Company or of any
Subsidiary of the
Company whether in the capacity of such Person as a shareholder
or otherwise,
except
(a) Management Fees permitted to be
paid under this Agreement,
(b) payments under the Tax Sharing
Agreement,
(c) payments of royalties to the Radio
License Subsidiaries for the right
to use the FCC Licenses held by
them,
(d) SPC Expense Reimbursement,
(e) Comcast Programming Payments,
(f) salaries and other compensation,
the payment of which is not
otherwise restricted under the Loan
Documents, paid in the ordinary
course of business,
(g) amounts paid to SPC in respect of
ESOP Compensation Expense allocated
to the Company in accordance with
the terms of the ESOP Sharing
Agreement provided, however, that
ESOP Repurchase Payments and other
amounts paid to SPC in respect of
the ESOP shall be deemed to be
Restricted Payments, and
(h) payments made to purchase minority
interests in Subsidiaries of the
Company in accordance with the
provisions of Subsection 8.3.2(o)
(Investments), and
(5) any forgiveness or release without adequate
consideration by the Company or any Subsidiary of the Company of
any
Indebtedness or other obligation owing to the Company or such
Subsidiary by a
Person (other than the Company or a Subsidiary) that is a
shareholder or other
equity holder of the Company or a Subsidiary or an Affiliate of
any such
shareholder or other equity holder.
o Revolver Maturity Date: the earlier to occur of (a)
March 31, 2011, (b) December 31, 2008, if any subordinated
Indebtedness maturing
before August 1, 2012 is not refinanced on terms and conditions
satisfactory to
Agent on or prior to September 30, 2008, or (c) the date on
which the Revolving
Credit Loans are accelerated in accordance with the provisions
of this
Agreement.
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o Revolving Credit Commitment: the meaning specified in
Subsection 2.1.1. (Commitment to Make Revolving Loans).
o Revolving Loans: the meaning specified in Subsection
2.1.1 (Commitment to Make Revolving Loans).
o Security Agreement: the meaning specified in
Subsection 5.1.3 (Security Agreement).
o Senior Debt: Total Debt less Indebtedness under the
Senior Subordinated Notes and any other unsecured subordinated
Indebtedness that
is issued on subordination and other terms acceptable to the
Agent.
o Senior Secured Obligations: any and all indebtedness,
obligations and liabilities of any type or nature, direct or
indirect, absolute
or contingent, related or unrelated, due or not due, liquidated
or unliquidated,
arising by operation of law or otherwise, now existing or
hereafter arising or
created of the Company, and/or any Subsidiary of the Company,
and/or any other
Person, to any Senior Secured Party, represented by or incurred
pursuant or
relating to the Loan Documents (which, for this purpose only
shall include
Interest Rate Protection Agreements required or permitted by
this Agreement and
Letters of Credit issued pursuant to this Agreement). Without
limiting the
generality of the foregoing, the term "Senior Secured
Obligations" shall
include, without limitation:
(1) principal of, and interest on the Loans and the
Notes (including, without limitation, Swing Loans and Note
evidencing the Swing
Loans);
(2) any and all other fees, indemnities, costs,
obligations and liabilities of the Company, each Subsidiary
thereof and each and
every other Loan Party from time to time owing to the Senior
Secured Parties
under, arising out of, or related to the Loan Documents;
(3) all obligations of the Company owing to any
Issuing Bank or Lender under Letters of Credit or other debt
instruments issued
by any Issuing Bank or Lender under the terms of the Loan
Agreement;
(4) obligations in respect of Interest Rate
Protection Agreements entered into with a Lender or an Affiliate
of a Lender;
and
(5) all amounts (including but not limited to
post-petition interest) in respect of the foregoing that would
be payable but
for the fact that the obligations to pay such amounts are
unenforceable or not
allowable due to the existence of a bankruptcy, reorganization
or similar
proceeding involving any Loan Party or any other Person.
o Senior Secured Parties: the Agent (in any capacity
including, without limitation, in its capacity as agent
hereunder and as agent
under any other Loan Document), any Issuing Bank, any Lender (in
any capacity
including, without limitation, as an issuer of Interest Rate
Protection
Agreements required or permitted under the terms of this
Agreement for so long
as such issuer is a Lender hereunder), any Affiliate of a Lender
that issues
Interest Rate Protection Agreements required under the terms of
this Agreement,
any Indemnitee, and any successor or assign of the
foregoing.
o Senior Subordinated Indentures: the Indenture dated
as of May 12, 1999 for the 8-1/2% Senior Subordinated Notes due
2009 between the
Company and JPMorgan Trust Company, National Association, as
Trustee and the
Indenture dated as of April 23, 2003 for the 7-3/8% Senior
Subordinated Notes
due 2013 between the Company and JPMorgan Trust Company,
National Association,
as Trustee.
o Senior Subordinated Notes: the 8-1/2% Senior
Subordinated Notes and 7-3/8% Senior Subordinated Notes issued
pursuant to the
Senior Subordinated Indentures.
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o Solvent or Solvency: a condition of a Person on a
particular date, whereby on such date (1) the fair value of the
property of such
Person is greater than the total amount of liabilities,
including, but not
limited to, contingent liabilities, of such Person, (2) the
present fair salable
value of the assets of such Person is not less than the amount
that will be
required to pay the probable liability of such Person on its
debts as they
become absolute and matured, (3) such Person does not intend to,
and does not
believe that it will, incur debts or liabilities beyond such
Person's ability to
pay as such debts and liabilities mature, and (4) such Person is
not engaged in
business or a transaction, and is not about to engage in
business or a
transaction, for which such Person's property would constitute
an unreasonably
small capital. In computing the amount of contingent liabilities
at any time, it
is intended that such liabilities will be computed at the amount
that, in light
of all the facts and circumstances existing at such time,
represents the amount
that can reasonably be expected to become an actual or matured
liability.
o SPC: Susquehanna Pfaltzgraff Co., a Delaware
corporation.
o SPC Expense Reimbursement: the meaning specified in
Subsection 8.8.1 (Limitations on Management Arrangements).
o SPC Pledge: the meaning specified in paragraph (a) of
Subsection 5.1.5 (Pledge Agreements).
o SPC Subordination Agreement: the meaning specified in
paragraph (a) of Subsection 5.1.6 (Subordination
Agreements).
o SPFV: the meaning specified in Subsection 3.2 (Lender
Required Payment).
o Subordinated Party: each party (and each other Person
that may, from time to time, become a party) to a Subordination
Agreement, other
than the Agent.
o Subordination Agreements: collectively, the SPC
Subordination Agreement, the Comcast Subordination Agreement,
and any other
subordination agreement hereafter executed and delivered to the
Agent pursuant
to the terms of this Agreement.
o Subsidiary: with respect to any Person, (1) any
corporation of which more than 50% of the issued and outstanding
capital stock
having ordinary voting power to elect a majority of the Board of
Directors of
such corporation (irrespective of whether at the time capital
stock of any other
class or classes of such corporation shall or might have voting
power upon the
occurrence of any contingency) is at the time directly or
indirectly owned or
controlled by such Person, by such Person and one or more of its
other
Subsidiaries or by one or more of such Person's other
Subsidiaries and (2) any
partnership, joint venture or other association of which more
than 50% of the
equity interests having the power to vote to direct or control
the management of
such partnership, joint venture or other association is at the
time owned or
controlled, directly or indirectly, by such Person, by such
Person and one or
more of the other Subsidiaries or by one or more of such
Person's other
Subsidiaries.
o Subsidiary Pledge: the meaning specified in paragraph
(c) of Subsection 5.1.5 (Pledge Agreements).
o Subsidiary Suretyship: the meaning specified in
Subsection 5.1.4 (Guaranty and Suretyship Agreement).
o Susquehanna Cable: Susquehanna Cable Co., a
Pennsylvania corporation and a Subsidiary of the Company.
o Susquehanna Radio: Susquehanna Radio Corp., a
Pennsylvania corporation and a Subsidiary of the Company.
o Swing Lender: Wachovia so long as it is a Lender, or
if Wachovia is no longer a Lender, then a Lender designated by
the Company and
acceptable to the Agent.
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o Swing Loan: the meaning specified in Subsection 2.2.1
(Swing Loan Advances).
o Taxes: all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other
charges imposed by
any Governmental Authority, including any interest, additions to
tax or
penalties applicable thereto.
o Tax Sharing Agreement: that certain tax sharing
agreement among the Company, its Subsidiaries, SPC and its other
Subsidiaries,
respecting the allocation of tax liabilities among SPC and its
Subsidiaries
dated May 12, 1999 as further amended on May 29, 2003.
o Term A Lender: each Lender designated as a "Term A
Lender" on Schedule 1.2 hereto and each successor and assign
thereof.
o Term A Loan: the meaning specified in Subsection
2.3.1 (Commitment for Term A Loan).
o Term A Loan Commitment: the meaning specified in
Subsection 2.3.1 (Commitment for Term A Loan).
o Term A Maturity Date: the earlier to occur of (1)
March 31, 2011, (2) December 31, 2008, if any subordinated
Indebtedness maturing
before August 1, 2012 is not refinanced on terms and conditions
satisfactory to
Agent on or prior to September 30, 2008, or (3) the date on
which the Term A
Loan is accelerated in accordance with the provisions of this
Agreement.
o Term B Lender: each Lender designated as a "Term B
Lender" on Schedule 1.2 hereto and each successor and assign
thereof.
o Term B Loan: the meaning specified in Subsection
2.3.2 (Commitment for Term B Loan).
o Term B Loan Commitment: the meaning specified in
Subsection 2.3.2 (Commitment for Term B Loan).
o Term B Maturity Date. the earlier to occur of (1)
March 31, 2012, (2) December 31, 2008, if any subordinated
Indebtedness maturing
before August 1, 2012 is not refinanced on terms and conditions
satisfactory to
Agent on or prior to September 30, 2008, or (3) the date on
which the Term B
Loan is accelerated in accordance with the provisions of this
Agreement.
o Term C Advance State: the meaning specified in
Subsection 2.3.8 (Commitment for Term C Loans).
o Term C Lenders: the meaning specified in Subsection
2.3.8 (Commitment for Term C Loans).
o Term C Loan: the meaning specified in Subsection
2.3.8 (Commitment for Term C Loans).
o Term C Loan Commitment: the meaning specified in
Subsection 2.3.8 (Commitment for Term C Loans).
o Term C Request Notice: the meaning specified in
Subsection 2.3.8 (Commitment for Term C Loans).
o Term Loans: collectively the Term A Loans and Term B
Loans and, if applicable, Term C Loans.
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o Total Debt: the aggregate principal amount of
Consolidated Indebtedness of the Company and its
Subsidiaries.
o Trademark Collateral Agreement: the meaning specified
in Subsection 5.1.7 (Intellectual Property Collateral
Agreements).
o Transferee Subsidiaries: the meaning specified in
Subsection 8.9 (Existence).
o Unapplied Net Proceeds: Net Proceeds received from a
disposition pursuant to Subsection 8.7.2(c) or (d) (Sales and
Other
Dispositions).
o Unreimbursed Drawings: drawings made under Letters of
Credit which, for any reason, have not been reimbursed by or on
behalf of the
Company whether through borrowings of Loans hereunder or
otherwise.
o U.S. Dollars and $: lawful money of the United States
of America.
o Voting Stock: capital stock or other ownership
interests of any class or classes of a corporation or another
entity the holders
of which are entitled to elect a majority of the corporate
directors or Persons
performing similar functions.
o WABZ Assets: the assets used in the operation of
radio broadcasting station WABZ, Albemarle, North Carolina,
including, without
limitation, the FCC License for such station.
o WABZ Disposition: the sale of the WABZ Assets on
substantially the same terms set forth in the letter of intent
dated January 26,
2004, between the Company and RadioOne, with such changes
thereto as the Company
shall determine are in its best interests.
o Withdrawal Liability: any withdrawal liability as
defined in Section 4201 of ERISA.
1.2 TERMS GENERALLY.
The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the
context may
require, any pronoun shall include the corresponding masculine,
feminine and
neuter forms. The words "include," "includes" and "including"
shall be deemed to
be followed by the phrase "without limitation." The word "will"
shall be
construed to have the same meaning and effect as the word
"shall." Unless the
context requires otherwise (a) any definition of or reference to
any agreement,
instrument or other document herein shall be construed as
referring to such
agreement, instrument or other document as from time to time
amended,
supplemented or otherwise modified (subject to any restrictions
on such
amendments, supplements or modifications set forth herein), (b)
any reference
herein to any Person shall be construed to include such Person's
successors and
assigns, (c) the words "herein," "hereof" and "hereunder," and
words of similar
import, shall be construed to refer to this Agreement in its
entirety and not to
any particular provision hereof, (d) all references herein to
Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles and
Sections of, and Exhibits and Schedules to, this Agreement and
(e) the words
"asset" and "property" shall be construed to have the same
meaning and effect
and to refer to any and all tangible and intangible assets and
properties,
including cash, securities, accounts and contract rights.
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1.3. ACCOUNTING TERMS; CHANGES IN GAAP
Except as otherwise expressly provided herein, all terms of
an
accounting or financial nature shall be construed in accordance
with GAAP as in
effect from time to time; provided, if there is a change in GAAP
after the date
of this Agreement that affects the calculation of any financial
covenants in
Article 7 (Financial Covenants) below, the Agent and the Company
shall in good
faith agree to such modifications to the financial covenants as
to reflect more
accurately the original intent of the parties. Such agreement by
the Company and
the Agent shall be binding on all parties hereto.
ARTICLE 2
THE LOANS
2.1 REVOLVING CREDIT LOANS.
2.1.1 COMMITMENT TO MAKE REVOLVING LOANS. Subject to and upon
the terms
and conditions set forth in this Agreement, the RC Lenders shall
make advances
to the Company until the Revolver Maturity Date up to the
aggregate principal
amount outstanding at any one time of Two Hundred Million
Dollars ($200,000,000)
(as the same may be reduced pursuant to this Agreement, the
"Revolving Credit
Commitment"); provided however that (a) the aggregate amount of
the Revolving
Credit Commitment available for borrowing at any time shall not
exceed the
Available Commitment (as hereinafter defined); (b) the amount
and percentage of
the Revolving Credit Commitment and the Available Commitment
which each RC
Lender is obligated to lend shall not exceed at any time the
amount or
percentage set forth opposite the name of such RC Lender on
Schedule 1.1 hereto
(as supplemented and amended by giving effect to the assignments
contemplated in
this Agreement). Within the limits set forth above, the Company
may borrow under
this Section 2.1, repay or prepay such advances, and reborrow
under this Section
2.1. The amounts loaned to the Company pursuant to the revolver
facility
described in this Section 2.1 are referred to as the "Revolving
Loans."
2.1.2 AVAILABLE COMMITMENT. "Available Commitment" shall mean
the
initial Revolving Credit Commitment, as the same is reduced
by:
(a) voluntary reductions in the Revolving Credit Commitment
pursuant to Subsection 2.1.3 below;
(b) mandatory reductions in the Revolving Credit Commitment
pursuant to Subsections 2.1.4 and 2.l.5, respectively,
below;
(c) the face amount of any outstanding Letters of Credit and
any Unreimbursed Drawings (if any) relating to Letters of
Credit; and
(d) the aggregate principal amount of any outstanding Swing
Loans and Revolving Loans.
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2.1.3 VOLUNTARY COMMITMENT REDUCTIONS. The Company shall have
the right
at any time and from time to time upon five (5) Business Days'
prior written
notice to the Agent to reduce (on a pro rata basis among the RC
Lenders)
permanently, in minimum amounts of Five Million Dollars
($5,000,000) or in whole
multiples of One Million Dollars ($1,000,000) in excess of Five
Million Dollars
($5,000,000) of principal, or terminate the Revolving Credit
Commitment, without
penalty or premium except as otherwise provided in Subsections
2.8.6 (Additional
Costs, Unavailability, Etc.) and 2.10.2 (Breakage) and Section
11.15 (Expenses;
Indemnity; Damage Waiver).
2.1.4 REPAYMENT OF REVOLVING CREDIT COMMITMENT. The Revolving
Credit
Commitment shall be terminated on the Revolver Maturity
Date.
2.1.5 COMMITMENT REDUCTIONS IN CONNECTION WITH CERTAIN EVENTS.
The
Revolving Credit Commitment shall be reduced at such times as
are specified in
Subsection 2.3.6(g) (Order of Prepayments).
2.1.6 [INTENTIONALLY OMITTED].
2.1.7 PREPAYMENT IN CONNECTION WITH COMMITMENT REDUCTIONS. Upon
the
effective date of each reduction in the Revolving Credit
Commitment referred to
above, the Company shall be required to pay to the Agent for the
benefit of the
RC Lenders the principal amount of the Revolving Loans and/or
Swing Loans, to
the extent, if any, that the aggregate amount of the Revolving
Loans and Swing
Loans then outstanding plus the aggregate face value of Letters
of Credit then
outstanding and Unreimbursed Drawings exceeds the amount of the
Available
Commitment as so reduced. If after prepayment of all outstanding
Revolving Loans
and Swing Loans, the amounts of outstanding Letters of Credit
and Unreimbursed
Drawings exceed the Available Commitment as so reduced, the
Company shall pay to
the Agent for the benefit of the RC Lenders an amount by which
the aggregate
face value of all outstanding Letters of Credit and Unreimbursed
Drawings
exceeds the Available Commitment as so reduced, such amount
first to be applied
against Unreimbursed Drawings and the remainder to be maintained
by the Agent in
an interest bearing cash collateral account in the name of and
for the benefit
of the Agent and the RC Lenders to secure the repayment of
Company's obligation
to reimburse the RC Lenders from drafts drawn or which may be
drawn under
outstanding Letters of Credit until such time as the applicable
Letters of
Credit have expired or been cancelled). At the request of the
Agent, accrued
interest on the Loans so prepaid shall be due and payable at the
time of such
prepayment. All amounts of principal, interest and fees relating
to Revolving
Loans not due and payable prior to the Revolver Maturity Date
are due and
payable on that date.
2.1.8 VOLUNTARY PREPAYMENTS. Except as otherwise provided in
this
Agreement, the Company shall be permitted to prepay the
Revolving Loans at any
time without penalty or premium. In connection with each
voluntary prepayment:
(a) The Company shall provide the Agent with notice of its
intention to prepay,
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(i) no later than 11:00 a.m. (Charlotte, NC time) on
the date of prepayment in the case of Revolving Loans
bearing
interest at the Base Rate plus Applicable Margin, and
(ii) no later than 11:00 a.m. (Charlotte, NC time)
three (3) Business Days prior to the date of prepayment in
the
case of Revolving Loans bearing interest at Adjusted LIBOR
plus Applicable Margin.
(b) Each prepayment of principal of a Revolving Loan shall
be
in a minimum amount equal to Two Million Dollars ($2,000,000.00)
or in amounts
in excess thereof equal to Two Million Dollars ($2,000,000) plus
integral
multiples of $500,000 in excess thereof.
2.2 SWING LOANS.
2.2.1 SWING LOAN ADVANCES. Upon the terms and subject to the
conditions
of this Agreement, the Swing Lender agrees to make, from time to
time, from and
including the Effective Date to but excluding the Revolver
Maturity Date, one or
more Loans ("Swing Loans") to the Company, in an aggregate
principal amount not
exceeding at any time $5,000,000, provided, however, that no
Swing Loan shall be
made at any time in an amount in excess of the Available
Commitment.
2.2.2 TERMS OF SWING LOAN BORROWINGS. The Company shall give the
Swing
Lender notice (which shall be irrevocable) of a request for a
Swing Loan (with a
copy to the Agent) no later than 12:00 noon (Charlotte, NC time)
on the day such
Loan is requested; if such notice is received later than 12:00
noon (Charlotte,
NC time), then the request shall be deemed to be a request for a
Swing Loan to
be made on the next Business Day. Each Swing Loan shall be in a
principal amount
equal to or greater than Two Hundred Thousand Dollars ($200,000)
and shall bear
interest at the Base Rate plus Applicable Margin. The Company
shall repay each
Swing Loan no later than 3:00 p.m. (Charlotte, NC time) on the
earlier of (A)
the date that demand is made therefor by the Swing Lender and
(B) the Revolver
Maturity Date. The Swing Lender shall provide prompt notice to
the Agent of any
repayment of Swing Loans by the Company.
2.2.3 PARTICIPATION BY RC LENDERS. Upon demand made to all of
the RC
Lenders by the Swing Lender, which demand may be made before or
after an Event
of Default or Potential Event of Default (including, without
limitation, an
Event of Default arising in connection with an insolvency,
bankruptcy, etc.),
and before or after the maturity date of the subject Swing
Loans, but subject to
the provisions of Subsection 2.2.5 (Certain Limitations) below,
each RC Lender
shall promptly, irrevocably and unconditionally purchase from
the Swing Lender,
without recourse or warranty, an undivided interest and
participation in the
Swing Loans then outstanding.
-24-
<PAGE>
Each RC Lender shall effect such purchase by paying to the Swing
Lender
in immediately available funds, without reduction or deduction
of any kind,
including reductions or deductions for set-off, recoupment or
counterclaim, an
amount equal to such RC Lender's pro rata share of the principal
amount of all
Swing Loans then outstanding. Each RC Lender's pro rata share of
the Swing Loans
shall be based on the amount of such RC Lender's pro rata share
of the total
Revolving Credit Commitment. Thereafter, the RC Lenders'
respective interests in
such Swing Loans, and the remaining interest of the Swing Lender
in such Swing
Loans, shall in all respects be treated as Revolving Loans under
this Agreement,
except that (x) subject to Subsection 2.8.8 (Default Rate)
below, such Swing
Loans shall continue to bear interest at the rate specified in
Subsection 2.2.2
(Terms of Swing Loan Borrowings) above for such Swing Loans
until such Swing
Loans are due and payable and (y) such Swing Loans shall be due
and payable by
the Company on the dates referred to in Subsection 2.2.2 (Terms
of Swing Loan
Borrowings).
If any RC Lender does not pay any amount which it is required to
pay
pursuant to this Subsection 2.2.3 promptly upon the Swing
Lender's demand
therefor, (i) the Swing Lender shall be entitled to recover such
amount on
demand from such RC Lender, together with interest thereon, at
the Federal Funds
Rate for the first three Business Days, and thereafter at the
Base Rate, for
each day from the date of such demand, if made prior to 2:00
p.m. (Philadelphia,
Pennsylvania time) on any Business Day, or, if made at any later
time, from the
next Business Day following the date of such demand, until the
date such amount
is paid in full to the Swing Lender by such RC Lender and (ii)
the Swing Lender
shall be entitled to all interest payable by the Company on such
amount until
the date on which such amount is received by the Swing Lender
from such RC
Lender. Moreover, any RC Lender that shall fail to make
available the required
amount shall not be entitled to vote on or consent to or approve
any matter
under this Agreement and the other Loan Documents until such
amount with
interest is paid in full to the Swing Lender by such RC Lender.
Without limiting
any obligations of any RC Lender pursuant to this Subsection
2.2.3, if any RC
Lender does not pay such corresponding amount promptly upon the
Swing Lender's
demand therefor, the Swing Lender shall notify the Company and
the Company shall
promptly repay such corresponding amount to the Swing Lender
together with
accrued interest thereon at the applicable rate on such Swing
Loans.
2.2.4 NO SET-OFF, ETC. Subject only to the limitations set forth
in the
following Subsection 2.2.5 (Certain Limitations), the
obligations of each RC
Lender to make available to the Swing Lender the amounts set
forth in the
preceding Subsection 2.2.3 (Participation by RC Lenders) shall
be absolute,
unconditional and irrevocable under any and all circumstances,
shall be without
reduction for any set-off or counterclaim of any nature
whatsoever, may not be
terminated, suspended or delayed for any reason whatsoever,
shall not be subject
to qualification or exception and shall be made in accordance
with the terms of
this Agreement.
2.2.5 CERTAIN LIMITATIONS. No RC Lender shall be obligated to
purchase
a participation in any Swing Loan pursuant to Subsection 2.2.3
(Participation by
RC Lenders), if such RC Lender proves that (A) the conditions
set forth in
Subsections 5.2.1 (No Default) or 5.2.3 (Representations and
Warranties) were
not satisfied at the time such Swing Loan was made (unless such
condition was
waived in accordance with the terms of this Agreement) and (B)
such
-25-
<PAGE>
RC Lender or the Agent had notified the Swing Lender in a
writing received by
the Swing Lender at least one Business Day prior to the time
that it made such
Swing Loan that the Swing Lender was not authorized to make such
Swing Loan
because such conditions were not satisfied and stating with
specificity the
reason therefor. The Swing Lender shall not be obligated to the
Company to make
any Swing Loans at any time after it has received a notice
pursuant to clause
(B) above whether or not the statements made therein are
true.
2.3 TERM LOANS.
2.3.1 COMMITMENT FOR TERM A LOAN. Upon the terms and subject to
the
conditions of this Agreement, each Term A Lender agrees to make
advances ("Term
A Loans") to the Company on or prior to June 30, 2004 in an
aggregate principal
amount not to exceed One Hundred Fifty Million Dollars
($150,000,000) (the "Term
A Loan Commitment"), provided, however, that the amount and
percentage of the
Term A Loan Commitment that any Lender is obligated to lend
shall not exceed the
amount or percentage set forth opposite the name of such Lender
on Schedule 1.2
hereto. The Company shall not be permitted to reborrow any
amount of the Term A
Loans once repaid.
2.3.2 COMMITMENT FOR TERM B LOAN. Upon the terms and subject to
the
conditions of this Agreement, each Term B Lender agrees to make
advances ("Term
B Loans") to the Company on the Effective Date in an aggregate
principal amount
not to exceed Two Hundred and Fifty Million Dollars
($250,000,000) (the "Term B
Loan Commitment"), provided, however, that the amount and
percentage of the Term
B Loan Commitment that any Lender is obligated to lend shall not
exceed the
amount or percentage set forth opposite the name of such Lender
on Schedule 1.2
hereto. The Company shall not be permitted to reborrow any
amount of the Term B
Loans once repaid.
2.3.3 SCHEDULED REPAYMENT OF TERM A LOAN. The principal of Term
A Loans
shall be due and payable in quarterly installments on March 31,
June 30,
September 30 and December 31 of each year commencing on June 30,
2006, in each
case in an amount equal to (a) the Term A Loan Commitment on the
date hereof,
multiplied by (b) the quarterly reduction percentage specified
below, such that
all of the Term A Loans will be repaid in full on the Term A
Maturity Date:
<Table>
<Caption>
Calendar Quarter Quarterly Percentage
---------------- --------------------
<S> <C>
6/30/2006 2.5%
9/30/2006 2.5%
12/31/2006 2.5%
3/31/2007 2.5%
6/30/2007 3.75%
9/30/2007 3.75%
12/31/2007 3.75%
3/31/2008 3.75%
6/30/2008 5.0%
9/30/2008 5.0%
</Table>
-26-
<PAGE>
<Table>
<Caption>
Calendar Quarter Quarterly Percentage
---------------- --------------------
<S> <C>
12/31/2008 5.0%
3/31/2009 5.0%
6/30/2009 6.25%
9/30/2009 6.25%
12/31/2009 6.25%
3/31/2010 6.25%
6/30/2010 7.5%
9/30/2010 7.5%
12/31/2010 7.5%
3/31/2011 7.5%
</Table>
All amounts of principal, interest and fees relating to Term A
Loans
are due and payable on the Term A Maturity Date.
2.3.4 SCHEDULED REPAYMENT OF TERM B LOAN. The principal of Term
B Loans
shall be due and payable in quarterly installments on March 31,
June 30,
September 30 and December 31 of each year commencing on June 30,
2005, in each
case in an amount equal to (a) the Term B Loan Commitment on the
date hereof,
multiplied by (b) the quarterly reduction percentage specified
below, such that
all of the Term B Loans will be repaid on the Term B Maturity
Date:
<Table>
<Caption>
Calendar Quarter Quarterly Percentage
---------------- --------------------
<S> <C>
6/30/2005 0.25%
9/30/2005 0.25%
12/31/2005 0.25%
3/31/2006 0.25%
6/30/2006 0.25%
9/30/2006 0.25%
12/31/2006 0.25%
3/31/2007 0.25%
6/30/2007 0.25%
9/30/2007 0.25%
12/31/2007 0.25%
3/31/2008 0.25%
6/30/2008 0.25%
9/30/2008 0.25%
12/31/2008 0.25%
3/31/2009 0.25%
6/30/2009 0.25%
9/30/2009 0.25%
12/31/2009 0.25%
3/31/2010 0.25%
6/30/2010 0.25%
9/30/2010 0.25%
</Table>
-27-
<PAGE>
<Table>
<S> <C>
12/31/2010 0.25%
3/31/2011 0.25%
6/30/2011 23.5%
9/30/2011 23.5%
12/31/2011 23.5%
3/31/2012 23.5%
</Table>
All amounts of principal, interest and fees relating to Term B
Loans are due and
payable on the Term B Maturity Date.
2.3.5 VOLUNTARY PREPAYMENTS. The Company may at any time and
from time
to time upon five (5) Business Days' prior written notice to the
Agent prepay
either Term A Loans or Term B Loans in whole or in part in a
minimum amount
equal to $2,000,000 or in incremental amounts equal to
$1,000,000 in excess of
such minimum amount, without penalty or premium except as
provided in
Subsections 2.8.6 (Additional Costs, Unavailability, Etc.) and
2.10.2 (Breakage)
and Section 11.15 (Expenses; Indemnity; Damage Waiver).
2.3.6 MANDATORY PREPAYMENTS IN CONNECTION WITH CERTAIN EVENTS.
In
addition to the scheduled repayments of the Term Loans, the
Company shall prepay
the Loans (and/or reduce the Commitments, as applicable) under
the following
circumstances:
(a) Asset Sales. The Company shall prepay the Loans in an
amount equal to the Unapplied Net Proceeds from dispositions,
provided that so
long as no Event of Default or Potential Event of Default is
then existing, and
the Company notifies the Agent of its intent to do so within
five (5) Business
Days of receipt thereof, the Company may use the Unapplied Net
Proceeds for
Acquisitions permitted by this Agreement made within 270 days
from receipt of
the Unapplied Net Proceeds. If the Company does not so notify
the Agent of its
intent to use the proceeds in the manner specified above, it
shall prepay the
Loans within five (5) Business Days of receipt of the Unapplied
Net Proceeds (or
such other time period as the Agent may agree to). Further if
the Company does
so notify the Agent, but fails to use the Unapplied Net Proceeds
for
Acquisitions within said 270-day period; then it shall prepay
the Loans on the
date that is 270 days after the date of receipt of the Unapplied
Net Proceeds.
In addition to the foregoing, if pursuant to the Senior
Subordinated Indentures
or any other subordinated indenture, the Company is required to
use proceeds of
dispositions to prepay Indebtedness thereunder if such proceeds
are not used to
prepay senior Indebtedness, the Company shall use the proceeds
of such
dispositions to prepay the Loans hereunder at the time specified
in such
indenture. Notwithstanding anything to the contrary contained in
this Agreement,
no prepayment of the Loans shall be required in connection with
the WABZ
Disposition.
(b) Issuance of Equity. At any time that the Company or any
of
its Subsidiaries issues equity (other than to the Company or any
of its
Subsidiaries and other than in connection with an employee
benefit plan
permitted by this Agreement), the Company shall prepay the Loans
in an amount
equal to 50% of the Net Cash Proceeds of the issuance, provided
that so long as
no Event of Default or Potential Event of Default is then
existing, and the
Company notifies the Agent of its intent to do so within five
(5) Business Days
of receipt thereof, the Company may use the Net Cash Proceeds
for Acquisitions
permitted by this Agreement made
-28-
<PAGE>
within 270 days from receipt of the proceeds. If the Company
does not so notify
the Agent of its intent to use the proceeds in the manner
specified above, it
shall prepay the Loans within five (5) Business Days of receipt
of the Net Cash
Proceeds (or such other time period as the Agent may agree to).
Further if the
Company does so notify the Agent, but fails to use the Net Cash
Proceeds for
Acquisitions within said 270-day period; then it shall prepay
the Loans on the
date that is 270 days after the date of receipt of the
proceeds.
(c) Issuance of Debt. At any time that the Company or any of
its Subsidiaries issues Indebtedness of $7,500,000 or more
(except pursuant to
paragraphs (a), (b), (c), (d) or (f) of Subsection 8.1.1
(Indebtedness - In
General)), the Company shall prepay the Loans in an amount equal
to 100% of the
Net Cash Proceeds of the issuance, provided that so long as no
Event of Default
or Potential Event of Default is then existing, and the Company
notifies the
Agent of its intent to do so within five (5) Business Days of
receipt thereof
(or such other time period as the Agent may agree to), the
Company may use the
Net Cash Proceeds for Acquisitions permitted by this Agreement
made within 270
days from receipt of the proceeds. If the Company does not so
notify the Agent
of its intent to use the proceeds in the manner specified above,
it shall prepay
the Loans within five (5) Business Days of receipt of the Net
Cash Proceeds.
Further if the Company does so notify the Agent, but fails to
use the Net Cash
Proceeds for Acquisitions within said 270-day period; then it
shall prepay the
Loans on the date that is 270 days after the date of receipt of
the proceeds.
(d) Excess Cash Flow. Each year, (beginning in 2006 with
respect to the fiscal year ending December 31, 2005), no later
than ten (10)
Business Days after the date that the annual financial
statements are required
to be delivered pursuant to Section 6.1.2 (Delivery of Annual
Financial
Statements; Accountants' Certification) below (the "target
year"), the Company
shall prepay the Loans in an amount equal to the excess of (i)
50% of Excess
Cash Flow for the target year over (ii) $5,000,000.
(e) Insurance Proceeds. In the event that the Company or any
of its Subsidiaries receives property or casualty insurance
proceeds and/or a
condemnation or similar payment, if (i) there shall then exist
an Event of
Default (without limiting any remedies available to the Agent)
or (ii) such
payment is in excess of $2,000,000, the Company shall promptly,
and in any event
no later than thirty (30) days from the date of receipt thereof,
prepay the
Loans in an amount equal to the amount of such insurance
proceeds or other
payments, provided that in the case of Subsection 2.3.6(e)(ii)
so long as no
Event of Default or Potential Event of Default is then existing,
and the Company
notifies the Agent of its intent to do so within five (5)
Business Days of
receipt thereof (or such other time period as the Agent may
agree to), the
Company may use the property or casualty insurance proceeds
and/or a
condemnation or similar payment to rebuild or replace the asset
subject to such
loss or condemnation or for Acquisitions permitted by this
Agreement made within
270 days from receipt of the proceeds. If the Company does not
so notify the
Agent of its intent to use the proceeds in the manner specified
above, it shall
prepay the Loans within five (5) Business Days of receipt of the
Net Cash
Proceeds. Further if the Company does so notify the Agent, but
fails to use the
Net Cash Proceeds to replace the applicable asset or for
Acquisitions within
said 270-day period; then it shall prepay the Loans on the date
that is 270 days
after the date of receipt of the proceeds.
-29-
<PAGE>
(f) Suspension of Prepayment Requirement. Notwithstanding
the
foregoing, (i) the mandatory prepayment requirements set forth
in clauses (b)
and (c) will be suspended during any period when the Total
Leverage Ratio is
less than or equal to 4.5:1 for the most recent quarter ended
when prepayment is
due, and (ii) the mandatory prepayment requirements set forth in
clause (d) will
be suspended during any period when the Total Leverage Ratio is
less than or
equal to 5.0:1 for the most recent quarter ended when prepayment
is due, in each
case, based on the most recently delivered financial
statements.
(g) Order of Prepayments. Subject to the provisions of
Subsection 2.3.7(b) (Relationship of Voluntary and Other
Mandatory Prepayments
to Scheduled Payments; Right to Opt Out), any prepayments
required by this
Subsection 2.3.6 shall be applied first against any Term B Loans
and then
against Term A Loans, and in each case, first to such Loans as
are bearing
interest at the Base Rate plus the Applicable Margin and then to
Loans bearing
interest at the LIBOR Rate plus the Applicable Margin (and among
those, first to
those with Interest Periods ending on the earliest date). If any
prepayment
would require the Company to prepay a Loan bearing interest at
the LIBOR Rate
plus the Applicable Margin prior to the end of the applicable
Interest Period
and thereby incur breakage costs, if no Event of Default or
Potential Event of
Default shall have then occurred and be continuing, the Company
may in lieu
thereof deposit such prepayment amounts with the Agent until the
end of the
applicable Interest Period, at which time the Loans shall be
paid in accordance
with the terms of this Subsection 2.3.6. If the amount of the
prepayment
required by this Subsection 2.3.6 exceeds the amount of
outstanding Term Loans,
then, the Revolving Credit Commitment shall be reduced by an
amount equal to the
amount of such excess.
2.3.7 RELATIONSHIP OF VOLUNTARY AND OTHER MANDATORY PREPAYMENTS
TO
SCHEDULED PAYMENTS; RIGHT TO OPT OUT. (a) Any voluntary
prepayments of Term A
Loans or Term B Loans pursuant to Subsection 2.3.5 (Voluntary
Prepayments) above
shall be applied against the scheduled payments set forth in
Subsection 2.3.3
(Schedule Repayment of Term A Loan) and Subsection 2.3.4
(Scheduled Repayment of
Term B Loan), as applicable, on a pro rata basis. Any mandatory
prepayments of
Term A Loans or Term B Loans pursuant to Subsection 2.3.6 above
(Mandatory
Prepayments in Connection with Certain Events) shall be applied
against the
scheduled payments set forth in Subsection 2.3.3 (Scheduled
Repayment of Term A
Loan) and Subsection 2.3.4 (Scheduled Repayment of Term B Loan),
as applicable,
on a pro rata basis, reducing proportionately each of the
scheduled payments
specified in said Subsection 2.3.3 or 2.3.4, as applicable, on
or after the
effective date of such mandatory prepayment unless Lenders of
the Term B Loans
elect to opt-out of such prepayment pursuant to this Subsection
2.3.7(b). Any
prepayment shall not affect the Company's obligation to continue
making payments
under any Interest Rate Protection Agreement, which shall remain
in full force
and effect notwithstanding such prepayment, subject to the terms
of such
Interest Rate Protection Agreement.
(b) Except with respect to voluntary prepayments of all of
the
Term B Loans (as to which no Lenders shall be entitled to opt
out), each Lender
of Term B Loans may opt out of any voluntary or mandatory
prepayment of Term B
Loans in accordance with the terms of the following sentence.
The Agent shall
make prepayments of Term B Loans to each Lender
-30-
<PAGE>
of Term B Loans to the extent required by Subsection 2.3.7(a)
unless not later
than 11:30 a.m. (Charlotte, NC time) five (5) Business Days
prior to the making
of such prepayment, the Agent shall have received notice from a
Lender of the
Term B Loans electing not to receive such prepayment. Any amount
which would be
payable to a Term B Lender but for such Lender's decision to opt
out of the
payment in accordance with this paragraph (b) (the "Opt Out
Amount") shall be
applied to Term A Loans in the manner set forth in paragraph (g)
of Subsection
2.3.6 (Mandatory Prepayments in Connection with Certain Events)
above. To the
extent that there are no outstanding Term A Loans to which the
Opt Out Amounts
may be applied, such excess Opt Out Amounts shall be applied
against the Term B
Loans of any Term B Lenders that have not elected to opt out
pursuant to this
paragraph (b) (in the manner set forth in paragraph (g) of
Subsection 2.3.6
(Mandatory Prepayments in Connection with Certain Events)
above).
2.3.8 COMMITMENT FOR TERM C LOANS. (a) In the event that the
Company
wishes to access additional Term Loans hereunder ("Term C
Loans") at any time
when no Default or Event of Default has occurred and is
continuing, it may
notify the Agent in writing (such notice, a "Term C Request
Notice") and request
that an offer be made pursuant to paragraph (b) below to issue
Term C Loans in
an amount not to exceed Two Hundred Million Dollars
($200,000,000).
(b) The Company may, at its election, subject and pursuant
to
the terms of this Subsection 2.3.8, (i) offer to all of the
Lenders the
opportunity to provide all or a portion of the Term C Loans
pursuant to
paragraph (c) below and/or (ii) with the consent of the Agent
(which consent
shall not be unreasonably withheld), offer one or more financial
institutions
meeting the requirements of "Eligible Assignee," the opportunity
to provide all
or a portion of Term C Loans pursuant to paragraph (c) below,
provided, that the
aggregate amount of all Term C Loans for which Lenders and other
Eligible
Assignees may commit (the "Term C Loan Commitment") shall not
exceed Two Hundred
Million Dollars ($200,000,000) and provided, further the minimum
amount of each
such increase shall be an aggregate amount of not less than
Twenty Five Million
Dollars ($25,000,000). The Term C Request Notice shall specify
which Eligible
Assignees the Company desires to provide such opportunity to
provide Term C
Loans (the "Offer").
(c) Each Offer shall specify (i) the proposed total amount
of
the Term C Loan Commitment (or range (including the maximum and
minimum) of the
amount of Term C Loan Commitment that the Company desires, as
applicable), (ii)
the proposed date on which (or the proposed period during which)
the proposed
Term C Loans shall be made (the actual date on which such Loans
are made, being
herein referred to as the "Term C Advance Date"), (iii) the date
by which an
Offer must be accepted and the addressee where an acceptance is
to be sent, (iv)
the maturity date of the Term C Loans (which may not be earlier
than the Term B
Maturity Date), (v) the amortization, if any, on the Term C
Loans (which may not
have a weighted average life to maturity earlier than the Term B
Loans), (vii)
the interest rate and (viii) any other terms that the Company,
with the consent
of the Agent, shall specify respecting conditions, mechanics,
fees (if any) and
allocation. The Company or, if requested by the Company, the
Agent, will provide
to each of the applicable Lenders and/or Eligible Assignees an
Offer.
-31-
<PAGE>
(d) Any Eligible Assignee which receives an Offer and which
elects to become a party to this Agreement (herein called a "New
Term C Lender")
and any Lender which elects to accept an Offer pursuant to this
Subsection 2.3.8
(herein called an "Accepting Term C Lender") shall so state by
accepting the
Offer in accordance with the terms thereof.
(e) Notwithstanding anything to the contrary, in no event
shall any transaction effected pursuant to this Subsection 2.3.8
(i) cause the
sum of (without duplication) (x) the Revolving Credit
Commitment, (y) the
outstanding principal amount of the Term Loans and (z) the Term
C Loan
Commitments to exceed Eight Hundred Million Dollars
($800,000,000) or (ii)
result in the Term C Loan Commitment of any New Term C Lender to
be in an amount
less than $1,000,000. Subject to the limitations in the
preceding sentence, the
Agent shall allocate the total Term C Loan Commitment among the
Accepting Term C
Lenders and New Term C Lenders in the relative amounts specified
in the Offers
or, if no allocation is specified (or if the specified
allocation would be in
conflict with the terms of the preceding sentence), then in such
relative
amounts as the Agent and the Company shall determine, provided,
however, no
Accepting Term C Lender nor New Term C Lender shall be required
to accept any
Term C Loan Commitment that it has not otherwise agreed to
accept.
(f) Each New Term C Lender shall execute a New Term C Lender
supplement with the Company and the Agent, in form and substance
satisfactory to
the Agent and shall deliver to the Agent an Administrative
Questionnaire,
whereupon such New Term C Lender shall become a Lender for all
purposes and to
the same extent as if originally a party hereto and shall be
bound by and
entitled to the benefits of this Agreement.
(g) Each Accepting Term C Lender shall execute an Accepting
Term C Lender supplement with the Company and the Agent, in form
and substance
satisfactory to the Agent, whereupon such Accepting Term C
Lender shall be bound
by and entitled to the benefits of this Agreement with respect
to its Term C
Loan Commitment and Term C Loans.
(h) On the Term C Advance Date, each Accepting Term C Lender
and each New Term C Lender (collectively, the "Term C Lenders")
shall make a
Term C Loan to the Company in an amount equal to its Term C Loan
Commitment
subject to (i) satisfaction of the conditions specified in
Subsection 5.2.2
(Request for Advance/Letter of Credit) of this Agreement, (ii)
receipt by the
Agent of certified copies of resolutions of the Company
authorizing the Term C
Loan Commitment and Term C Loans, (iii) receipt by the Agent of
a legal opinion
of counsel to the Company covering such matters as the Agent may
reasonably
determine (including, without limitation, the status of the Term
C Loans as
"Senior Debt" under any of the Company's subordinated
indentures) and (iv) such
other conditions, if any, as are specified in the Offer.
(i) The terms of the Term C Loans (as to maturity,
amortization, etc.) set forth in the Offer shall be incorporated
by reference
into this Agreement. The Agent and the Company are authorized to
enter into such
supplements and amendments to this Agreement and other Loan
Documents for the
purpose of clarifying or adding terms relative to the Term C
-32-
<PAGE>
Loans, Term C Commitment and Term C Lenders as are not
materially inconsistent
with the terms of this Agreement or applicable Loan Document,
including, without
limitation, provisions providing for the creation of promissory
notes evidencing
the Term C Loans should any Term C Loan Lender desire one. If
any material terms
respecting Term C Loans or Term C Lenders are not expressly
referenced in the
Offer or a supplemental or amendatory agreement, the relevant
terms applicable
to Term B Loans or Term B Lenders herein or in the other Loan
Documents shall
apply to the Term C Loans or Term C Lenders, as applicable. The
Company shall,
or the Agent on behalf of the Company may, provide notice to the
Lenders of the
material terms incorporated herein by reference or by
supplemental or amendatory
agreement.
(j) For the sake of clarity, it is expressly understood that
the Term C Loans are Loans, Term Loans and Senior Secured
Obligations for all
purposes under the Loan Documents and are entitled to the
benefits of the
collateral security and guarantees provided for in the Loan
Documents and that
the Term C Lenders are Lenders for all purposes of the Loan
Documents and
entitled to the indemnifications and other rights of Lenders
thereunder.
2.4 LENDERS' OBLIGATIONS SEVERAL.
Each Lender is severally bound by this Agreement, but there
shall be no
joint obligation of the Lenders under this Agreement. The
failure of any Lender
to make any share of the Loans or obligations respecting Letters
of Credit to be
made by it on the date specified for the Loans or such
obligations shall not
relieve any other Lender of its obligation to make its share of
the Loans or
other obligations on such date, but neither any Lender nor the
Agent shall be
responsible for the failure of any other Lender to make a share
of the Loans or
other obligations to be made by such other Lender.
2.5 NOTES; REGISTRATION.
(a) Notes. Upon the request of any RC Lender, the aggregate
principal amount of each RC Lender's share of the Revolving
Credit Commitment
and Revolving Loans shall be evidenced by a note to be issued by
the Company to
each RC Lender in substantially the form attached hereto as
Exhibit A-1 (with
appropriate completion of the name of the applicable RC Lender).
Upon the
request of any Term A Lender, the aggregate amount of such Term
A Lender's share
of the Term A Loan Commitment and Term A Loans shall be
evidenced by a note to
be issued by the Company to such Term A Lender in substantially
the form
attached hereto as Exhibit A-2 (with the appropriate completion
of the name of
the applicable Term A Lender). Upon the request of any Term B
Lender, the
aggregate amount of such Term B Lenders' share of the Term B
Loan Commitment and
Term B Loans shall be evidenced by a note to be issued by the
Company to such
Term B Lender in substantially the form attached as Exhibit A-3
to this
Agreement (with appropriate completion of the name of the
applicable Term B
Lender). Upon the request of the Swing Lender, the Swing Loans
and commitment
therefor shall be evidenced by a note to be issued by the
Company to the Swing
Lender in substantially the form attached as Exhibit A-4 to this
Agreement.
(b) Request for Registration. Any Lender may request the
Company (through the Agent), to register its Loans as provided
in paragraph (d)
below and, if such Loans are otherwise evidenced by a Note, to
issue such
Lender's Note, or to exchange such Note for a
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<PAGE>
new Note, registered as provided in paragraph (d) below (a
"Registered Note"). A
Registered Note may not be exchanged for a Note that is not in
registered form.
A Registered Note shall be deemed to be and shall be a Note for
all purposes of
this Agreement and the other Loan Documents.
(c) Delivery of Tax Forms. Each Lender that is not formed
under the laws of the United States or political subdivision
thereof that
requests or holds a Registered Note pursuant to the preceding
paragraph (b) or
registers its Loans pursuant to the preceding paragraph (b) (a
"Registered
Lender") (or, if such Registered Lender is not the beneficial
owner thereof,
such beneficial owner) shall deliver to the Company (with a copy
to the Agent)
prior to or at the time such Non-U.S. Lender becomes a
Registered Lender, the
applicable form described in Section 3.4 (Tax Forms) (or such
successor and
related forms as may from time to time be adopted by the
relevant taxing
authorities of the United States) together with an annual
certificate stating
that such Registered Lender or beneficial owner, as the case may
be, is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code
and is not
otherwise described in Section 881(c)(3) of the Code. Each
Registered Lender or
beneficial owner, as the case may be, shall promptly notify the
Company (with a
copy to the Agent) if at any time such Registered Lender or
beneficial owner, as
the case may be, determines that it is no longer in a position
to provide such
previously delivered certificate to the Company (or any other
form of
certification adopted by the relevant taxing authorities of the
United States
for such purposes).
(d) Registration of Loans. The Agent, acting, for this
purpose, as agent of the Company, shall, upon request of any
Registered Lender,
enter in the Register the name, address and taxpayer
identification number (if
provided) of the Registered Lender or beneficial owner as the
case may be. In
addition to the requirements of Section 11.5 (Successors and
Assigns), a
Registered Note and the Loans evidenced thereby (or such Loans
pending delivery
of such Registered Note) or any other Loans registered pursuant
to paragraph (b)
above may be assigned or otherwise transferred in whole or in
part only by
registration of such assignment or transfer of such Registered
Note and/or the
Loans so registered on the Register (and each such Registered
Note shall
expressly so provide). Any assignment or transfer of all or part
of such Loans
and such Registered Note shall be registered on the Register
only upon
compliance with the provisions of Section 11.5 (Successors and
Assigns) and, in
the case of Registered Notes, surrender for registration of
assignment or
transfer of the Registered Note evidencing such Loans, duly
endorsed by (or
accompanied by a written instrument of assignment or transfer
fully executed by)
the Registered Lender thereof, and thereupon one or more new
Registered Notes in
the same aggregate principal amount shall be issued to the
designated
assignee(s) or transferee(s) and, if less than all of such
Registered Notes is
thereby being assigned or transferred, the assignor or
transferor.
2.6 BORROWING NOTICE.
Fundings of Revolving Loans shall be in the minimum amount of
Two
Million Dollars ($2,000,000) and integral multiples of Five
Hundred Thousand
Dollars ($500,000) in excess of such minimum amount. To effect a
funding, the
Company shall give the Agent written notice in the form annexed
to this
Agreement as Exhibit B specifying the amount and date of each
intended borrowing
and the manner in which the same shall be disbursed, which
notice
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<PAGE>
(a) in the case of borrowings to bear interest at a rate
based
upon the Base Rate, shall be given no later than 11:00 a.m.
(Charlotte, NC time)
on the date of such borrowing,
(b) in the case of borrowings to bear interest based upon
Adjusted LIBOR, shall be given no later than 11:00 a.m.
(Charlotte, NC time) at
least three (3) Eurodollar Business Days prior to each such
borrowing and shall
specify the Interest Period with respect to such borrowing,
and
(c) in the case of an advance, or an advance which is part
of
a series of related advances, in excess of $50,000,000 for the
purpose of
effecting an Acquisition or purchasing a minority interest as
more fully set
forth in Subsection 2.8.3 (Officers' Certificate), shall be
accompanied by the
Officers' Certificate required by said Subsection 2.8.3.
The Agent in turn shall give prompt written or telephonic
(promptly confirmed in
writing) notice to each Lender of its pro rata share of the
borrowing, the
interest rate option selected and the scheduled date of the
funding. After
receipt of such notice, each Lender shall make such arrangements
as are
necessary to assure that its share of the funding shall be
immediately available
(in U.S. Dollars) to the Agent no later than 2:30 p.m.
(Charlotte, NC time), on
the date on which the funding is to occur. After receipt of the
funds, the
Agent, subject to the satisfaction of the conditions precedent
set forth in
Section 5.2 (Requirements for Each Loan/Letter of Credit), shall
disburse the
amount of such funding in accordance with instructions in the
Company's
borrowing notice.
The Lenders shall not be obligated to comply with a
borrowing
notice if there shall then exist an Event of Default or a
Potential Event of
Default regardless of whether Lenders have determined to
exercise their remedies
arising upon the occurrence of such Event of Default or
Potential Event of
Default.
2.7 FEES TO LENDERS.
2.7.1 COMMITMENT FEES. The Company shall pay to the Agent for
the
account of the RC Lenders and Term A Lenders, as applicable,
quarterly in
arrears on each Quarterly Payment Date a commitment fee (the
"Commitment Fee")
(calculated on the basis of a 360 day year for the actual days
elapsed) equal to
the product of the Commitment Fee Base (as hereafter defined)
and
(i) Three-eighths of one per cent (3/8%), at any time that
the
Consolidated Total Leverage Ratio is greater than or equal
to
4.50:1; and
(ii) One-quarter of one per cent (1/4%), at any time that
the
Consolidated Total Leverage Ratio is less than 4.50:1.
"Commitment Fee Base" means, with respect to Commitment Fees to
RC Lenders, an
amount at any time equal to (a) the amount of the Revolving
Credit Commitment
less (b) the sum of the aggregate principal amount of
outstanding Revolving
Loans, the face amount of outstanding Letters of Credit and any
Unreimbursed
Drawings in respect of Letters of Credit. (Swing Loans shall not
reduce the
Commitment Fee Base.) Notwithstanding the foregoing, the
Commitment Fee to RC
Lenders shall be increased by one-eighth of one percent (1/8%)
on any day that
the Commitment Fee Base for RC Loans is greater than fifty
percent (50%) of the
amount of the Revolving Credit Commitment.
"Commitment Fee Base" means, with respect to Commitment Fees to
Term A Lenders,
an amount at any time equal to (a) the amount of the Term A Loan
Commitment less
(b) the aggregate principal amount of outstanding Term A
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<PAGE>
Loans. Notwithstanding the foregoing, the Commitment Fee to Term
A Lenders shall
be increased by one-eighth of one percent (1/8%) on any day that
the Commitment
Fee Base for Term A Loans is greater than fifty percent (50%) of
the amount of
the Term A Loan Commitment.
Subject to the next sentence, any change in the percentage
amount set
forth in clauses (i) and (ii) of this Subsection 2.7.1 shall be
effective on the
fifth (5th) Business Day immediately following delivery of the
Officers'
Certificate described in paragraph (a) of Subsection 2.8.3
(Officers'
Certificate) below and the fifth (5th) Business Day following
the borrowing or
prepayment, as applicable, made in connection with an
Acquisition or disposition
referred to in paragraphs (b) and (c) of said Subsection 2.8.3.
In the event
that any Officers' Certificate referred to in clause (a) or (b)
of Subsection
2.8.3 is not delivered in a timely fashion, the percentage
amount shall be the
highest rate set forth above effective on the fifth (5th)
Business Day after
written notice to such effect is given by the Agent to the
Company until the
fifth (5th) Business Day immediately following delivery of such
Officers'
Certificate. The Commitment Fee shall begin to accrue from the
Effective Date
and shall be shared by the RC Lenders entitled thereto in
proportion to their
respective shares of the Revolving Credit Commitment.
2.7.2 LETTER OF CREDIT FEES AND FRONTING FEES. The Company shall
pay to
the Agent for the account of the RC Lenders such letter of
credit fees as are
described in Article 4 (Letters of Credit) below, except that
the Fronting Fee
shall be paid only to the Issuing Bank.
2.7.3 OTHER FEES. The Company shall pay such other fees, if any,
as the
Company has otherwise agreed to pay to the Agent, the Issuing
Bank and/or the
Lenders.
2.8 INTEREST.
2.8.1 THE RATES. The Loans (other than Swing Loans) shall bear
interest
at Company's option (subject to the limitation and conditions
set forth in this
Section) at the Base Rate plus the Applicable Margin or at the
Adjusted LIBOR
plus the Applicable Margin. Interest accruing at the Base Rate
plus the
Applicable Margin shall be payable quarterly on each Quarterly
Payment Date,
commencing with the first Quarterly Payment Date after the
Effective Date.
Interest accruing at Adjusted LIBOR plus the Applicable Margin
shall be payable
on the last day of each Interest Period, provided that if the
Interest Period is
six (6) Months or longer, interest shall be payable on the
ninetieth (90th) day
of the Interest Period, every ninetieth (90th) day thereafter
until the end of
the Interest Period and on the last day of the Interest Period.
Interest
calculated at the Base Rate plus the Applicable Margin shall be
computed on the
basis of a 365/6 day year and interest calculated at the
Adjusted LIBOR plus the
Applicable Margin shall be computed on the basis of a 360 day
year.
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<PAGE>
2.8.2 APPLICABLE MARGIN. The term "Applicable Margin" when used
with
respect to the Base Rate shall mean the following:
<Table>
<Caption>
Consolidated Total Base Rate Base Rate
Leverage Applicable Margin Applicable Margin
Ratio for Revolving Loans and Term A Loans for Term B Loan
-------------------- -------------------------------------
-----------------
<S> <C> <C>
Equal to or greater
than 6.00 1.000% 0.750%
Equal to or greater
than 5.50 but less than 6.00 0.750% 0.750%
Equal to or greater
than 5.00 but less than 5.50 0.500% 0.750%
Equal to or greater
than 4.50 but less than 5.00 0.250% 0.750%
Equal to or greater
than 4.00 but less than 4.50 0.000% 0.750%
Less than 4.00 0.000% 0.500%
</Table>
The term "Applicable Margin" when used with respect to Adjusted
LIBOR
shall mean the following:
<Table>
<Caption>
Consolidated Total Adjusted LIBOR Adjusted LIBOR
Leverage Applicable Margin for Applicable Margin
Ratio Revolving Loans and Term A Loans for Term B Loans
------------------ --------------------------------
-----------------
<S> <C> <C>
Equal to or greater
than 6.00 2.250% 2.000%
Equal to or greater
than 5.50 but less than 6.00 2.000% 2.000%
Equal to or greater
than 5.00 but less than 5.50 1.750% 2.000%
Equal to or greater
than 4.50 but less than 5.00 1.500% 2.000%
Equal to or greater
than 4.00 but less than 4.50 1.250% 2.000%
Less than 4.00 1.000% 1.750%
</Table>
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<PAGE>
2.8.3 OFFICERS' CERTIFICATE.
(a) The Company shall provide the Agent with an Officers'
Certificate on a Pro Forma Basis in the form annexed to this
Agreement as
Exhibit D within sixty (60) days after the close of each of the
first three
quarters of each fiscal year of the Company and within one
hundred twenty (120)
days after the close of each fiscal year of the Company setting
forth the
computations and information as of the end of the preceding
fiscal quarter
necessary for the determination of the Applicable Margin and the
percentage
amount applicable to the Commitment Fee.
(b) In addition, at any time that the Company requests an
advance, or a series of related advances, in an amount in excess
of $50,000,000
for the purpose of effecting an Acquisition or purchasing a
minority interest in
any direct or indirect Subsidiary of the Company (whether in
connection with a
buy-sell agreement, a put, a call or otherwise), the Company
shall provide the
Agent with an Officers' Certificate on a Pro Forma Basis (along
with the request
for advance as required by Section 2.6 (Borrowing Notice)
above). Such Officers'
Certificate on a Pro Forma Basis shall set forth the calculation
of the
Consolidated Total Leverage Ratio after giving pro forma effect
to the proposed
Loans and transactions contemplated in connection therewith.
(c) In addition, at any time that the Company makes a
disposition of assets in accordance with Section 8.7 (Mergers
and Dispositions)
below and prepays the Loans in accordance with Subsection 2.1.5
(Commitment
Reductions in Connection with Certain Events) above or
Subsection 2.3.6
(Mandatory Prepayments in Connection with Certain Events) in an
amount in excess
of $50,000,000 (whether in one prepayment or a series of related
prepayments),
the Company shall provide the Agent with an Officers'
Certificate on a Pro Forma
Basis (along with the notice of prepayment). Such Officers'
Certificate on a Pro
Forma Basis shall set forth the calculation of the Consolidated
Total Leverage
Ratio after giving pro forma effect to the proposed prepayment
of the Loans, the
disposition of the assets and transactions contemplated in
connection therewith.
Subject to the next sentence, the determination of the
Applicable
Margin shall be effective with respect to the Loans as of the
fifth (5th)
Business Day immediately following delivery of any Officers'
Certificate
delivered pursuant to paragraph (a) above and the fifth (5th)
Business Day
following the borrowing or prepayment, as applicable, made in
connection with an
Acquisition or disposition referred to in paragraphs (b) and (c)
above. In the
event that any Officers' Certificate required by paragraph (a)
or (b) above is
not delivered in a timely fashion, the Applicable Margin shall
be the Applicable
Margin otherwise applicable if the Consolidated Leverage Ratio
is equal to or
greater than 6.00, effective on the fifth (5th) Business Day
after written
notice to such effect is given by the Agent and continuing until
any such
Officers' Certificate is delivered to Agent, whereupon, in the
latter event any
required change to the Applicable Margin shall be effective with
respect to the
Loans commencing as of the fifth (5th) Business Day immediately
following
delivery of such Officers' Certificate.
2.8.4 LIBOR ELECTION. (a) Unless otherwise elected by the
Company, the
Loans shall bear interest at the Base Rate plus the Applicable
Margin. The
Company may, upon three (3) Eurodollar Business Days' prior
written notice to
the Agent in the form of Exhibit C to
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<PAGE>
this Agreement, and subject to and upon the terms and conditions
set forth in
this Agreement, elect to borrow money that will bear interest
based on Adjusted
LIBOR plus the Applicable Margin or to convert a portion of the
Loans to bear
interest based on Adjusted LIBOR plus the Applicable Margin. Any
such election
may be made with respect to a principal amount designated in
such notice and
equal to at least Five Million Dollars ($5,000,000) and integral
multiples of
One Million Dollars ($1,000,000) in excess of such minimum, for
the period next
ensuing, which period ("Interest Period") shall equal one, two,
three or six
Months or, if available by all Lenders, one year, as designated
by the Company
in its notice.
(b) The Company may not convert any outstanding Loans to a
borrowing bearing interest based on Adjusted LIBOR plus the
Applicable Margin or
otherwise elect an interest rate based on Adjusted LIBOR plus
the Applicable
Margin if at the time of such conversion or election there shall
exist an Event
of Default or Potential Event of Default under Subsections 9.1.1
(Failure to Pay
Principal), 9.1.2 (Failure to Pay Interest, Fees, Reimbursement
Obligations,
Etc.), 9.1.3 (Cross Default to Indebtedness) or 9.1.6 (Certain
Covenant
Defaults), but, in the case of Subsection 9.1.6, only if the
underlying default
relates to breach of the covenants set forth in Article 7
(Financial Covenants).
(c) If an interest rate based on Adjusted LIBOR plus the
Applicable Margin is elected, such interest rate shall remain in
effect for the
Interest Period selected and such interest rate shall not
otherwise be converted
to another interest rate prior to the expiration of the Interest
Period except
as otherwise required by this Section. If an Interest Period
with respect to a
rate of interest based on Adjusted LIBOR plus the Applicable
Margin would
otherwise commence on a day which is not a Eurodollar Business
Day, such
Interest Period shall commence on the next Eurodollar Business
Day.
(d) The principal accruing interest based on Adjusted LIBOR
plus the Applicable Margin shall, commencing on the last day of
the Interest
Period, bear interest at the Base Rate plus the Applicable
Margin unless prior
thereto the Agent has received a notice pursuant to this Section
(and within the
time periods required) that an elective rate based on Adjusted
LIBOR plus the
Applicable Margin shall be effective commencing on such date
with respect to any
or all of such principal.
(e) The Company may not elect an interest rate based on
Adjusted LIBOR plus the Applicable Margin if such election would
require the
Agent to administer concurrently Loans (including Revolving
Loans, Term A Loans
and Term B Loans collectively) for more than a combination of
elective rates of
interest based on Adjusted LIBOR or Interest Periods that exceed
an aggregate of
ten (10).
(f) If an Interest Period would otherwise end on a day which
is not a Eurodollar Business Day, such Interest Period shall be
extended to the
next Eurodollar Business Day, unless such next Eurodollar
Business Day shall
fall in the next calendar month in which event such Interest
Period shall end on
the immediately preceding Eurodollar Business Day.
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<PAGE>
(g) The Company may not elect an interest rate based on
Adjusted LIBOR plus the Applicable Margin with respect to any
portion of the
Loans if, as a result of a reduction in the Revolving Credit
Commitment, a
scheduled payment or otherwise, the Company knows that it would
be required to
repay a portion of the Loans bearing interest based on Adjusted
LIBOR plus the
Applicable Margin on a day other than the last day of any
applicable Interest
Period or Periods.
(h) No Interest Period may be elected that would end later
than the Revolver Maturity Date (for Revolver Loans) or the Term
A Maturity Date
(for Term A Loans) or the Term B Maturity Date (for Term B
Loans).
2.8.5 DEFINITION OF ADJUSTED LIBOR. As used in this Agreement,
the term
"Adjusted LIBOR" shall mean the rate per annum (rounded upwards
if necessary to
the nearest one-hundredth of one percent) determined by the
Agent to be equal to
the quotient of (a) LIBOR, divided by (b) a number equal to 1.00
minus the
Reserve Percentage.
As used herein, "LIBOR" means the rate of interest per annum
determined on the basis of the rate for deposits in Dollars in
minimum amounts
of at least $5,000,000 for a period equal to the applicable
Interest Period
which appears on the Telerate Page 3750 at approximately 11:00
a.m. (London
time) two (2) Business Days prior to the first day of the
applicable Interest
Period (rounded upward, if necessary, to the nearest one
one-hundredth of one
percent (1/100%)). If, for any reason, such rate does not appear
on Telerate
Page 3750, then "Adjusted LIBOR" shall be determined by the
Agent to be the
arithmetic average (rounded upward, if necessary, to the nearest
one
one-hundredth of one percent (1/100%)) of the rate per annum at
which deposits
in Dollars would be offered by first class banks in the London
interbank market
to the Agent at approximately 11:00 a.m. (London time) two (2)
Eurodollar
Business Days prior to the first day of the applicable Interest
Period for a
period equal to such Interest Period and in an amount
substantially equal to the
amount of the applicable Loan.
As used in this Agreement, the term "Reserve Percentage"
means, for any day, the percentage (expressed as a decimal and
rounded upwards,
if necessary, to the next higher 1/100th of 1%) which is in
effect for such day
as prescribed by the Federal Reserve Board (or any successor)
for determining
the maximum reserve requirement (including without limitation
any basic,
supplemental or emergency reserves) in respect of eurocurrency
liabilities or
any similar category of liabilities for a member bank of the
Federal Reserve
System in New York City.
2.8.6 ADDITIONAL COSTS, UNAVAILABILITY, ETC.
(a) If any Change in Law shall: (i) impose, modify or deem
applicable any reserve, special deposit, compulsory loan,
insurance charge or
similar requirement against assets of, deposits with or for the
account of, or
credit extended by, any Lender (except any reserve requirement
reflected in the
Adjusted LIBOR Rate) or the Issuing Bank; (ii) subject any
Lender or the Issuing
Bank to any tax of any kind whatsoever with respect to this
Agreement, any
Letter of Credit, any participation in a Letter of Credit or any
Eurodollar Loan
made by it, or change the basis of taxation of payments to such
Lender or the
Issuing Bank in respect thereof (except for Indemnified Taxes or
Other Taxes
covered by Section 3.5 (Taxes) and changes in the rate of any
Excluded Tax
payable by such Lender or the Issuing Bank); or (iii) impose on
any Lender or
the Issuing Bank or the London interbank market any other
condition, cost or
expense affecting this Agreement or Eurodollar Loans made by
such Lender or any
Letter of Credit or participation therein; and the result of any
of the
foregoing shall be to increase the cost to such Lender of making
or maintaining
any Eurodollar Loan (or of maintaining its obligation to make
any such Loan), or
to increase the cost to such
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<PAGE>
Lender or the Issuing Bank of participating in, issuing or
maintaining any
Letter of Credit (or of maintaining its obligation to
participate in or to issue
any Letter of Credit), or to reduce the amount of any sum
received or receivable
by such Lender or the Issuing Bank hereunder (whether of
principal, interest or
any other amount), then upon request of such Lender the Company
will pay to such
Lender or the Issuing Bank, as the case may be, such additional
amount or
amounts as will compensate such Lender or the Issuing Bank, as
the case may be,
for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law affecting such Lender or the Issuing Bank or any
lending office of
such Lender or such Lender's or the Issuing Bank's holding
company, if any,
regarding capital requirements has or would have the effect of
reducing the rate
of return on such Lender's or the Issuing Bank's capital or on
the capital of
such Lender's or the Issuing Bank's holding company, if any, as
a consequence of
this Agreement, the Commitments of such Lender or the Loans made
by, or
participations in Letters of Credit held by, such Lender, or the
Letters of
Credit issued by the Issuing Bank, to a level below that which
such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding
company could
have achieved but for such Change in Law (taking into
consideration such
Lender's or the Issuing Bank's policies and the policies of such
Lender's or the
Issuing Bank's holding company with respect to capital
adequacy), then from time
to time the Company will pay to such Lender or the Issuing Bank,
as the case may
be, such additional amount or amounts as will compensate such
Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding
company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender
or the Issuing
Bank or its holding company, as the case may be, as specified in
paragraph (a)
or (b) of this Section and delivered to the Company shall be
conclusive absent
manifest error. The Company shall pay such Lender or the Issuing
Bank, as the
case may be, the amount shown as due on any such certificate
within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the
Issuing
Bank to demand compensation pursuant to this Section shall not
constitute a
waiver of such Lender's or the Issuing Bank's right to demand
such compensation,
provided that the Company shall not be required to compensate a
Lender or the
Issuing Bank pursuant to this Section for any increased costs
incurred or
reductions suffered more than six months prior to the date that
such Lender or
the Issuing Bank, as the case may be, notifies the Company of
the Change in Law
giving rise to such increased costs or reductions and of such
Lender's or the
Issuing Bank's intention to claim compensation therefor (except
that, if the
Change in Law giving rise to such increased costs or reductions
is retroactive,
then the six-month period referred to above shall be extended to
include the
period of retroactive effect thereof).
(e) The Company shall pay to the Agent for the account of
the
affected Lender or Lenders within thirty (30) days of demand
such additional
sums as will compensate such Lender or Lenders for the effect of
any change in
reserve requirements or any taxes, duties
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<PAGE>
or other charges (or changes in the amount thereof) based upon
an allocation by
such affected Lender or Lenders of the additional sums payable
as a result of
the Loans or Letters of Credit. No failure on the part of the
Agent or any
Lender to demand compensation for any increased costs in any
period shall
constitute a waiver of any Lender's right to demand such
compensation at any
time, provided, however, that the Company shall not be required
to pay any such
compensation for any such increased costs incurred more than six
months prior to
the making of the affected Lender's initial such request. Each
affected Lender
shall certify the amount of such cost to the Company and provide
the Company
with a written statement setting forth the cost claimed and the
calculations
used in determining such cost, which certification and statement
shall be
conclusive in the absence of manifest error.
(f) In the event that the Company shall have elected an
interest option and period based on Adjusted LIBOR plus the
Applicable Margin
and the Requisite Lenders shall have reasonably determined that
quotations of
interest rates for the relevant deposits referred to in the
definition of
Adjusted LIBOR are not being provided in the relevant amounts or
for the
relevant Interest Period for purposes of determining an interest
rate based on
Adjusted LIBOR plus the Applicable Margin or that by reason of
circumstances
affecting the London Interbank Eurocurrency Market adequate and
reasonable means
do not exist for ascertaining Adjusted LIBOR applicable to such
deposits for the
specified Interest Period, the Agent shall promptly give notice
of such
determination to the Company, and no part of the Loans shall
thereafter be
available at Adjusted LIBOR for the specified Interest Period
until the
Requisite Lenders determine that the circumstances described
above cease to
exist. At such time, Agent shall notify the Company that
Adjusted LIBOR is again
available; however, neither Agent nor any of the Lenders shall
have any
liability for failure to give such notice. A determination by
the Requisite
Lenders shall be conclusive and binding upon the Company.
(g) In the event that by reason of any change in any law,
regulation or official directive, or in the interpretation
thereof by any
governmental body charged with the administration thereof, any
Lender becomes
subject to restrictions on the amount of any category of
deposits or other
liabilities of such Lender which includes deposits by reference
to which
Adjusted LIBOR is determined as set forth in this Agreement or a
category of
extensions of credit or other assets of such Lender which
includes any portion
of the Loans as to which a rate based on Adjusted LIBOR has been
elected, then,
if such Lender so elects by notice to the Company setting out
the basis of such
election (with a copy to the Agent), the obligation of such
Lender to permit
additional borrowings under the Loans at a rate based on
Adjusted LIBOR shall be
suspended until such change ceases to be in effect and, during
such suspension,
such Lender's portion of all borrowings under the Loans
requested to be made at
a rate based on Adjusted LIBOR shall instead bear interest at a
rate determined
by reference to the Base Rate and Applicable Margin.
(h) Notwithstanding anything herein contained to the
contrary,
if, prior to or during any Interest Period with respect to which
a rate based on
Adjusted LIBOR plus the Applicable Margin is in effect, any
change in any law,
regulation or official directive, or in the interpretation
thereof, by any
governmental body charged with the administration thereof, shall
make it
unlawful for any Lender to fund or maintain its funding in
Eurodollars of any
portion of the principal amount of the Loans or otherwise to
give effect to such
Lender's obligations as
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contemplated by this Agreement, (i) the affected Lender shall by
written notice
to the Company and the Agent declare the Company's right to
elect an interest
rate based on Adjusted LIBOR plus the Applicable Margin with
respect to such
Lender's share of the Loans to be suspended, (ii) any portion of
the Loans made
by the affected Lender bearing interest at a rate based on
Adjusted LIBOR plus
the Applicable Margin shall forthwith cease to bear interest at
such rate, and
interest on such portion of the Loans shall from and after such
date be
calculated at a rate based upon the Base Rate plus the
Applicable Margin and
(iii) the Company shall indemnify the affected Lender against
any loss or
expense suffered by it in liquidating prior to maturity
Eurodollar deposits
which correspond to its pro rata share of the principal amount
of the Loans to
which a rate based on Adjusted LIBOR was applicable. The
affected Lender shall
certify the amount of such loss or expense to the Company and
such certification
shall be conclusive in the absence of manifest error.
(i) If either (i) the introduction of, or any change in, or
in
the interpretation of, any applicable law or (ii) compliance
with any guideline
or request from any central bank or comparable agency or other
governmental
authority (whether or not having the force of law), has or would
have the effect
of reducing the rate of return on the capital of, or has
affected or would
affect the amount of capital required to be maintained by, any
Lender or any
corporation controlling such Lender as a consequence of, or with
reference to
the Commitments and other commitments of this type, below the
rate which the
Lender or such other corporation could have achieved but for
such introduction,
change or compliance, then within five (5) Business Days after
written demand by
any such Lender, the Company shall pay to such Lender from time
to time as
specified by such Lender additional amounts sufficient to
compensate such Lender
or other corporation for such reduction. A certificate as to
such amounts
submitted to the Company and the Agent by such Lender, shall, in
the absence of
manifest error, be presumed to be correct and binding for all
purposes.
2.8.7 SOURCE OF FUNDS. Although each Lender may elect to
purchase in
the London Inter-Bank Eurocurrency Market one or more Eurodollar
deposits in
order to fund or maintain its funding of its pro rata share of
the principal
amount of the Loans with respect to which the Company has
elected a rate based
upon Adjusted LIBOR plus the Applicable Margin during the
Interest Period in
question, it is acknowledged that the provisions of this
Agreement relating to
such funding are included only for the purpose of determining
the rate of
interest to be paid and any other amounts owing under this
Agreement in
connection with such election, and each Lender shall be entitled
to fund and
maintain its funding of all or any part of that portion of the
principal amount
of the Loans in any manner it sees fit. Nonetheless, all such
determinations
shall be made as if each Lender had actually funded and
maintained that portion
of the principal amount of the Loans to which a rate based upon
Adjusted LIBOR
plus the Applicable Margin is applicable during such Interest
Period through the
purchase of Eurodollar deposits in an amount equal to its pro
rata share of the
principal amount of the Loans to which a rate based upon
Adjusted LIBOR plus the
Applicable Margin is applicable and having a maturity
corresponding to such
Interest Period.
2.8.8 DEFAULT RATE. Anything in this Agreement to the
contrary
notwithstanding, (a) after maturity, whether scheduled, by
acceleration or
otherwise, and whether
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prior to or after a judgment against the Company, or (b) during
the existence of
an Event of Default specified in Subsection 9.1.1 (Failure to
Pay Principal),
9.1.2 (Failure to Pay Interest, Fees, Reimbursement Obligations,
Etc.) or 9.1.3
(Cross Default to Indebtedness) or (c) during the existence of
an Event of
Default specified in Subsection 9.1.6 (Certain Covenant
Defaults) as a result of
a breach of the covenants set forth in Article 7 (Financial
Covenants), the
Loans shall bear interest at two percent (2%) per annum plus the
interest
rate(s) otherwise in effect from time to time pursuant to this
Agreement (the
"Default Rate").
2.9 PURPOSE.
Upon satisfaction of the conditions and other requirements set
forth in
this Agreement, the proceeds of the Loans shall be used by the
Company: (i) to
refinance existing Indebtedness on the Effective Date; (ii) to
make Restricted
Payments permitted under this Agreement; (iii) to finance
Acquisitions,
investments and Capital Expenditures permitted under this
Agreement; and (iv)
for working capital needs and general corporate purposes.
2.10 ADDITIONAL PROVISIONS CONCERNING PREPAYMENTS AND FAILURE TO
BORROW.
2.10.1 INTEREST ON AMOUNTS PREPAID. At any time that the Company
makes
a prepayment of principal, it shall pay accrued interest on the
amount so
prepaid.
2.10.2 BREAKAGE. In the event that the Company makes a
prepayment
(whether voluntary or mandatory) of any Loans bearing interest
at a rate based
on Adjusted LIBOR plus the Applicable Margin for a specified
Interest Period on
a day other than the last day of such Interest Period or fails
to borrow on the
date specified in the applicable borrowing notice (or convert to
a Loan based on
Adjusted LIBOR on the date specified in the LIBOR election) any
amount which the
Company shall have requested to borrow at a rate based on
Adjusted LIBOR plus
Applicable Margin, the Company will pay to the Agent, upon
demand, for the
account of the affected Lenders any cost or expense incurred as
a result
thereof. Each affected Lender shall certify the amount of such
cost or expense
to the Company and provide the Company with a written statement
setting forth
the cost or expense claimed and the calculations used in
determining such loss
and expense, which certification and statement shall be
conclusive in the
absence of manifest error.
2.10.3 CERTAIN PRESUMPTIONS REGARDING APPLICATION OF
PREPAYMENTS.
Unless otherwise provided in this Agreement or other Loan
Documents, prepayments
shall be applied first to fees, then to interest (to the extent
then payable)
and then to principal with respect to the portions of the Loans
accruing
interest at a rate based upon the Base Rate plus the Applicable
Margin, and then
to those portions of the Loans accruing interest at a rate based
upon Adjusted
LIBOR plus the Applicable Margin and among such portions of the
Loans accruing
interest at rates based upon Adjusted LIBOR plus the Applicable
Margin to such
portions with the earliest expiring Interest Periods.
2.11 [INTENTIONALLY OMITTED.]
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2.12 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
2.12.1 DESIGNATION OF A DIFFERENT LENDING OFFICE. If any
Lender
requests compensation under Subsection 2.8.6 (Additional Costs,
Unavailability,
Etc.), or requires the Company to pay any additional amount to
any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 3.5
(Taxes), then such Lender shall use reasonable efforts to
designate a different
lending office for funding or booking its Loans hereunder or to
assign its
rights and obligations hereunder to another of its offices,
branches or
affiliates, if, in the judgment of such Lender, such designation
or assignment
(i) would eliminate or redu
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