Exhibit 10.6
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT is made and entered into as of August 21, 1998, by
and among CIBC OPPENHEIMER CORP. (the "Purchaser"), the lenders set forth on the
signature pages hereto each of which is a party to the Credit Agreement
described below (collectively, the "Lenders"), THE CHASE MANHATTAN BANK, as
agent (in such capacity, the "Agent") for the Lenders, COAXIAL COMMUNICATIONS OF
CENTRAL OHIO, INC. ("Central"), PHOENIX ASSOCIATES ("Phoenix"), COAXIAL
ASSOCIATES OF COLUMBUS I ("Columbus I"), COAXIAL ASSOCIATES OF COLUMBUS II
("Columbus II"), and COAXIAL ASSOCIATES OF SOUTHERN OHIO, INC. ("Southern Ohio"
and, together with Central, Phoenix, Columbus I and Columbus II, collectively
the "Borrowers").
RECITALS
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A. The Borrowers, the Agent and the Lenders are parties to a Credit
Agreement dated as of November 15, 1994 (as heretofore amended, supplemented or
otherwise modified, the "Credit Agreement"). Capitalized terms used herein and
not otherwise defined shall have the meanings assigned to them in the Credit
Agreement.
B. Immediately prior to the execution of this Agreement and the occurrence
of the Effective Date (as defined below), Columbus I, Columbus II and Southern
Ohio are repaying an aggregate of $28,950,517 (the "Prepayment Amount") of the
Term Loans outstanding under the Credit Agreement and, in consideration thereof
(but subject to the occurrence of the Effective Date and the terms of this
Agreement), Columbus I, Columbus II and Southern Ohio are being released from
all of their respective obligations under the Credit Agreement. After giving
effect to such prepayment, compliance with the terms of the Pay-off Letter (as
defined below) and the purchase of the other Borrowers' obligations under the
Credit Agreement and the other Loan Documents as set forth below, Phoenix and
Central will be the sole obligors under the Credit Agreement and the Notes from
and after the Effective Date.
C. The Borrowers have requested that, simultaneously with the execution of
this Agreement and the occurrence of the Effective Date, the Lenders agree to
sell to the Purchaser, and the Purchaser agree to purchase from the Lenders, all
of the Lenders' right, title and interest in, to and under all of the
remaining amounts outstanding under the Credit Agreement and the other Loan
Documents as of the Effective Date (after giving effect to payment of the
Prepayment Amount and amounts payable pursuant to the Pay-off Letter),
constituting the remaining principal amount outstanding of the Loans and all
accrued and unpaid interest thereon (all as more fully set forth on Schedule 1
hereto, the "Existing Obligations").
D. The Borrowers have further requested that, simultaneously with the
execution of this Agreement, the occurrence of the Effective Date and the
purchase of the Existing Obligations by the Purchaser from the Lenders, the
Purchaser agree to restructure the Existing Obligations so that the terms of the
Existing Obligations shall be as set forth in the Restructuring Agreement among
Central, Phoenix, Insight Communications of Central Ohio, LLC, a Delaware
limited liability company, and the Purchaser dated as of August 17, 1998 (the
"Restructure Agreement") and the Indenture referenced therein (the "Indenture").
E. The Purchaser and the Lenders have agreed to such sale and purchase of
the Existing Obligations, and the Purchaser has agreed to such restructuring of
the Existing Obligations, but in each case only in accordance with the terms and
conditions of this Agreement.
AGREEMENTS
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IN CONSIDERATION OF THE FOREGOING, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
1. Assignment. Effective upon receipt by the Agent, for the account of the
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Lenders, of (a) the Purchase Price (as defined below), (b) the Prepayment Amount
and (c) all other amounts payable by the Borrowers pursuant to the terms of the
"pay-off" letter previously delivered by the Agent to the Borrowers (the "Pay-
off Letter"), each Lender hereby irrevocably sells, transfers, assigns, grants
and conveys to the Purchaser, and the Purchaser hereby irrevocably purchases and
assumes from such Lender, all of such Lender's right, title and interest in, to
and under the Existing Obligations set forth opposite such Lender's name on
Schedule 1 hereto and, subject to Section 7 below, all of such Lender's related
rights and obligations under the Credit Agreement, the Notes and the other Loan
Documents, including any unused commitments under the Credit Agreement (together
with the Existing Obligations, the "Purchased Obligations"). On the
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Effective Date, after the payment of the Prepayment Amount, the Purchaser shall
pay to the Agent, for the account of the Lenders, by wire transfer of
immediately available funds, an amount equal to $136,376,989.84 (the "Purchase
Price") in consideration of the sale and assignment of the Purchased
Obligations.
2. Representations and Warranties.
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(a) Each Lender hereby represents and warrants to the Purchaser that (A)
such Lender has the full power and authority to execute, deliver and perform its
obligations under this Agreement and to sell its Purchased Obligations to the
Purchaser and (B) this Agreement has been duly and validly authorized and
constitutes such Lender's legal, valid and binding obligation, enforceable
against it in accordance with the terms of this Agreement, subject to the
effects of bankruptcy, insolvency, moratorium, reorganization and other similar
laws affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing. Except as expressly set forth herein, the
Lenders make no representations or warranties whatsoever, express or implied,
including without limitation, with respect to (i) the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the validity,
enforceability, perfection or priority of any lien or security interest created
or purported to be created under or in connection with, the Purchased
Obligations, the Credit Agreement, any other Loan Document or any other
instrument or document furnished pursuant thereto; (ii) the financial condition
or creditworthiness of the Borrowers and their respective Subsidiaries and
Affiliates; (iii) any representation, warranty or statement made by any of the
Borrowers or any of their respective Subsidiaries or Affiliates in or in
connection with the Credit Agreement, any other Loan Document or any other
instrument or document furnished pursuant thereto; or (iv) the performance or
observance by any of the Borrowers or any of their respective Subsidiaries or
Affiliates of any of their respective obligations under the Credit Agreement,
any other Loan Document or any other instrument or document furnished pursuant
thereto.
(b) The Purchaser hereby represents and warrants to each Lender that (A)
it has the full power and authority to execute, deliver and perform its
obligations under this Agreement and to purchase the Purchased Obligations from
such Lender, (B) this Agreement has been duly and validly authorized and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with the terms of this Agreement, subject to the effects of
bankruptcy, insolvency, moratorium, reorganization and
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other similar laws affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing, (C) it is a sophisticated buyer
with respect to its purchase of the Purchased Obligations, has adequate
information concerning the business and financial condition of the Borrowers and
their respective Subsidiaries and Affiliates to make an informed decision
regarding the purchase of the Purchased Obligations and has independently and
without reliance upon the Lenders or the Agent, and based on such information as
the Purchaser has deemed appropriate, made its own analysis and decision to
enter into this Agreement. The Purchaser acknowledges that (i) the Lenders have
not made and do not make any representation or warranty, whether express or
implied, of any kind or character, except as expressly set forth in this
Agreement, (ii) in accordance with Section 5 hereof, simultaneously with the
Purchaser's purchase of the Purchased Obligations, the Agent shall release all
of the Liens which currently secure the Purchased Obligations and (iii) the sale
and assignment of the Purchased Obligations to the Purchaser pursuant to this
Agreement is irrevocable, and that the Purchaser has no recourse whatsoever to
any Lender, except with respect to any material breach by such Lender of the
representations and warranties expressly made by such Lender in this Agreement.
3. Further Assurances.
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The Purchaser, the Agent, the Lenders and the Borrowers each hereby agrees to
execute and deliver, at the expense of the Borrowers, such other agreements,
documents and instruments, and to take such other actions, as any party may
reasonably request in order to further evidence or implement the transactions
contemplated by this Agreement.
4. Restructuring. The Purchaser, Central and Phoenix agree that immediately
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upon the purchase of the Existing Obligations from the Lenders, the Existing
Obligations shall be restructured on the Effective Date so that the terms
thereof are as set forth in the Restructure Agreement and the Indenture, and the
notes to be issued pursuant to the Indenture in substitution and exchange for,
but not in novation of, the Notes issued pursuant to the Credit Agreement to
evidence the Purchased Obligations shall be in the form provided in the
Indenture.
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5. Release of Collateral. In accordance with, and subject to, the terms of
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the Pay-off Letter, simultaneously with the occurrence of the transactions
contemplated hereby to occur on the Effective Date, the Agent shall release all
of the Liens granted to the Agent, for the ratable benefit of the Lenders, to
secure the Purchased Obligations. From and after the Effective Date, the
Purchased Obligations shall be secured as provided in the Restructure Agreement
and the Indenture.
6. Parties to Credit Agreement. Upon consummation of the transactions
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contemplated by this Agreement and the Pay-off Letter to occur on the Effective
Date, the Lenders shall cease to be parties to the Credit Agreement and the
other Loan Documents, and the Agent shall be deemed to have resigned as Agent
under the Credit Agreement and the other Loan Documents.
7. Indemnification and Survivability of Certain Obligations. Each of the
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Borrowers hereby agrees to pay, indemnify and hold the Agent and each Lender and
their respective officers, directors, employees and agents harmless from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, reasonable fees and
disbursements of counsel) which may be incurred by or asserted against the Agent
or the Lenders arising out of or in connection with any of the transactions
contemplated by this Agreement. In addition, any provision of the Credit
Agreement or any of the other Loan Documents which is expressly stated to
survive the termination of the Credit Agreement and the repayment of the Notes
and all other amounts payable thereunder shall be deemed to be incorporated by
reference into this Agreement for the benefit of the Agent and the Lenders with
the same effect as if fully set forth herein, and each such provision as so
incorporated into this Agreement shall remain in full force and effect in
accordance with its terms after the Effective Date.
8. Miscellaneous.
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(a) This Agreement shall become effective and the effective date for this
Agreement shall be August 21, 1998 (the "Effective Date"), the date upon which
this Agreement has been executed by each of the parties hereto and all of the
transactions contemplated by this Agreement and the Pay-off Letter shall have
occurred, provided that the representations and warranties made in this
Agreement by the parties hereto shall be true and correct in all material
respects on the Effective Date.
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(b) Notwithstanding anything to the contrary contained herein, no General
Partner shall have any personal liability in respect of any Borrower's
obligations under this Agreement by reason of such General Partner's status as a
general partner of a Borrower. In addition, no limited partner of any Borrower
nor any officer, director or shareholder of any Borrower or of any corporate
General Partner shall have any personal liability in respect of such obligations
by reason of his or its status as such limited partner, officer, director or
shareholder.
(c) The representations and warranties made herein shall survive the
consummation of the transactions contemplated hereby.
(d) This Agreement may be executed by the parties hereto and delivered by
facsimile transmission on any number of separate counterparts, each of which,
when executed and delivered, shall be an original, but all counterparts shall
together constitute one instrument.
(e) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAWS PROVISIONS THEREOF.
(f) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
(g) The Borrowers shall pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and expenses incurred in connection with the
negotiation, execution and delivery of this Agreement, including without
limitation, the reasonable fees and disbursements of counsel to the Agent.
(h) This Agreement contains the entire understanding among the parties,
and supersedes any prior understandings and agreements among them, regarding the
subject matter of this Agreement.
(i) If any one or more of the provisions contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of all remaining provisions shall not in any way be
affected or impaired. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
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(j) Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of each of the parties hereto.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties by their duly authorized representatives have
executed this Assignment Agreement as of the date first above written.
CIBC OPPENHEIMER CORP.
By:___________________________
Name:_________________________
Title:________________________
THE CHASE MANHATTAN BANK, as Agent
and a Lender
By:___________________________
Name:_________________________
Title:________________________
AG CAPITAL FUNDING PARTNERS, L.P.
By:___________________________
Name:_________________________
Title:________________________
CIBC, INC.
By:___________________________
Name:_________________________
Title:________________________
CONTRARIAN CAPITAL ADVISORS, L.L.C.
By:___________________________
Name:_________________________
Title:________________________
GOLDMAN SACHS CREDIT PARTNERS L.P.
By:___________________________
Name:_________________________
Title:________________________
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:___________________________
Name:_________________________
Title:________________________
MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED
By: MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY,
Its Investment Manager
By:___________________________
Name:_________________________
Title:________________________
MELLON BANK, N.A.,
as Trustee for First Plaza Group Trust
By:___________________________
Name:_________________________
Title:________________________
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:___________________________
Name:_________________________
Title:________________________
ROYALTON COMPANY
By: PACIFIC INVESTMENT MANAGEMENT COMPANY,
as Its Investment Advisor
By:___________________________
Name:_________________________
Title:________________________
SANWA BUSINESS CREDIT CORPORATION
By:___________________________
Name:_________________________
Title:________________________
SILVER OAK CAPITAL L.L.C.
By:___________________________
Name:_________________________
Title:________________________
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:___________________________
Name:_________________________
Title:________________________
COAXIAL COMMUNICATIONS OF CENTRAL OHIO, INC.
By:___________________________
Name:_________________________
Title:________________________
PHOENIX ASSOCIATES
By:___________________________
Name:_________________________
Title:________________________
COAXIAL ASSOCIATES OF COLUMBUS I
By:___________________________
Name:_________________________
Title:________________________
COAXIAL ASSOCIATES OF COLUMBUS II
By:___________________________
Name:_________________________
Title:________________________
COAXIAL ASSOCIATES OF SOUTHERN OHIO, INC.
By:___________________________
Name:_________________________
Title:________________________
Schedule 1
to the Assignment Agreement
August 17, 1998 Effective Date
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Revolving Credit Loans Term Loans
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Lender Principal Interest Principal Interest Total
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AG Capital Funding Partners, L.P. $23,286,090.41 $90,326.97 $23,376,417.38
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CIBC, Inc. $6,166,666.67 $31,362.83 $6,293,333.37 $24,411.90 $12,515,774.77
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The Chase Manhattan Bank $12,333,333.33 $62,725.66 $3,176,520.62 $12,321.75 $15,584,901.36
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Contrarian Capital Partners LLC $8,280,883.74 $32,121.63 $8,313,005.37
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Goldman Sachs Credit Partners LP $18,630,385.45 $72,267.44 $18,702,652.89
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Mass Mutual Corp. Value Partners $3,933,333.37 $15,257.44 $3,948,590.81
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Massachusets Mutual Life Insurance $7,866,666.63 $30,514.87 $7,897,181.50
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Mellon Bank, N.A. $3,227,460.38 $12,519.35 $3,239,979.73
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Northwestern Mutual Life Insurance Co. $11,800,000.00 $45,772.31 $11,845,772.31
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Royalton Company $5,274,778,30 $20,460,92 $5,295,239.22
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Silver Oak Capital, LLC $8,843,608.92 $34,304.44 $8,887,913.36
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Sanwa Business Credit Corporation $4,013,605.44 $15,568.81 $4,029.174.25
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Van Kampen American Capital Prime
Income Trust $13,272,333.37 $51,568.81 $13,425,208.66
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TOTAL: $18,500.000.00 $94,088.49 $118,000,000,000 $457.723.12 $137,051,811.60
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/1/ Includes interest owing on the $28,500,000 Prepayment and asssumes that the $1,374,099.46 LIBOR interest payment is paid
by the Borrowers on August 13, 1998.