1
EXECUTION COPY
$80,000,000
CREDIT AGREEMENT, dated as of July 21, 1994,
among
CABLE TV FUND 14-A, LTD.,
as the Borrower,
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
and
THE BANK OF NOVA SCOTIA,
as Agent for the Lenders.
2
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Use of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.3. Cross-References . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.4. Financial Accounting and Financial Determinations . . . . . . . . . . 21
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.1.1. Revolving Loan Commitment . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.1.2. Lenders Not Permitted or Required To Make Revolving Loans . . . . . 22
SECTION 2.2. Reduction of Commitment Amount . . . . . . . . . . . . . . . . . . . 22
SECTION 2.3. Borrowing Procedure . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2 4. Continuation and Conversion Elections . . . . . . . . . . . . . . . . 22
SECTION 2.5. Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.6. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE III
CONVERSION, REPAYMENTS, PREPAYMENTS,
INTEREST AND FEES
SECTION 3.1. Conversion, Repayments and Prepayments . . . . . . . . . . . . . . . 24
SECTION 3.2. Interest Provisions . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.2.1. Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.2.2. Post-Maturity Rates . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.2.3. Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.3. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.3.1. Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.3.2. Agent's Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE IV
CERTAIN CD RATE, LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. Fixed Rate Lending Unlawful . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.2. Deposits Unavailable . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.3. Increased Fixed Rate Loan Costs, etc. . . . . . . . . . . . . . . . . 30
SECTION 4.4. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
section 4.5. Increased Capital Costs . . . . . . . . . . . . . . . . . . . . . . 31
3
SECTION 4.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.7. Payments, Computations, etc. . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.8. Sharing of Payments . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.9. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Initial Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.1.1. General Partner's Certificate . . . . . . . . . . . . . . . . . . . 35
SECTION 5.1.2. Delivery of Notes . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.1.3. Payment of Outstanding Indebtedness, etc. . . . . . . . . . . . . . . 36
SECTION 5.1.4. Security Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.9.5. Subordination Agreement . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.1.6. Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.1.7. Closing Date Certificate . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.1.8. Release Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.1.9. Closing Fees, Expenses . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.1.10. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.2. All Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.2.1. Compliance with Warranties, No Default, etc. . . . . . . . . . . . . 38
SECTION 5.2.2. Borrowing Request . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.2.3. Satisfactory Legal Form . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Organization, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.2. Due Authorization, Non-Contravention, etc. . . . . . . . . . . . . . . 41
SECTION 6.3. Government Approval, Regulation, etc. . . . . . . . . . . . . . . . . 41
SECTION 6.4. Validity, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.5. Financial Information . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.6. No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.7. Litigation, Labor Controversies, etc. . . . . . . . . . . . . . . . . 42
SECTION 6.8. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.9. Ownership of Properties . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.10. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6 11. Pension and Welfare Plans . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.12. Environmental Warranties . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.13. Regulations G, U and X . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.14. Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.15. Cable Authorizations . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.16. FCC Registration and Regulatory Compliance . . . . . . . . . . . . . 44
SECTION 6.17. Franchises, Copyrights and Licenses . . . . . . . . . . . . . . . . . 45
SECTION 6.18. Communications Act Filings . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.19. Partnership Agreement . . . . . . . . . . . . . . . . . . . . . . . . 46
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ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.1.1. Financial Information, Reports, Notices, etc. . . . . . . . . . . . . 46
SECTION 7.1.2. Compliance with Laws, etc. . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.1.3. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.1.4. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.1.5. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.1.6. Environmental Covenant . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.1.7. Copyright Act Filings . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.1.8. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.1.9. Post-Closing Mortgages and Releases . . . . . . . . . . . . . . . . . 51
SECTION 7.1.10. Post-Closing Delivery of Opinion . . . . . . . . . . . . . . . . . . 51
SECTION 7.2. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.2.1. Business Activities . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.2.2. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.2.3. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7 2.4. Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 7.2.5. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.2.6. Restricted Payments, etc. . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.2.7. Capital Expenditures, etc. . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.2.8. General Partner Advances . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.2.9. Consolidation, Merger, etc. . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.2.10. Asset Dispositions, etc. . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.2.11. Modification of Certain Agreements . . . . . . . . . . . . . . . . . 56
SECTION 7.2.12. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.2.13. Negative Pledges, Restrictive Agreements, etc. . . . . . . . . . . . 57
SECTION 7.2 14. No Creation of Pension Plans . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.2.15. Acquisition of Real Property Interests . . . . . . . . . . . . . . . 57
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.1.1. Non-Payment of Obligations . . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.1.2. Breach of Warranty . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations . . . . . . . . 58
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations . . . . . . . . . 58
SECTION 8.1.5. Default on Other Indebtedness . . . . . . . . . . . . . . . . . . . 58
SECTION 8.1.6. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.1.7. Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.1.8. Bankruptcy, Insolvency, etc. . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.1.9. Partnership Agreement . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.1.10. Impairment of Security, etc. . . . . . . . . . . . . . . . . . . . . 60
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SECTION 8.1.11. Failure to Obtain or Cessation of Authorization, etc. . . . . . . . . 60
SECTION 8.1.12. Cancellation of Franchise Agreement . . . . . . . . . . . . . . . . . 61
SECTION 8.2. Action if Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.3. Action if Other Event of Default . . . . . . . . . . . . . . . . . . 61
ARTICLE IX
THE AGENT
SECTION 9.1. Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.2. Funding Reliance, etc. . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.3. Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.4. Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.5. Loans by Scotiabank . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.6. Credit Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.7. Copies, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 10.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 10.3. Payment of Costs and Expenses . . . . . . . . . . . . . . . . . . . 66
SECTION 10.4. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.5. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.6. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.7. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. . . . . . . . . . . . 68
SECTION 10.9. Governing Law; Entire Agreement . . . . . . . . . . . . . . . . . . 68
SECTION 10.10. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.11.1. Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.11.2. Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.12. Other Transactions . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.13. Nonrecourse Obligations . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.14. Forum Selection and Consent to Jurisdiction . . . . . . . . . . . . 72
SECTION 10.15. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . 72
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SCHEDULE I - Disclosure schedule
SCHEDULE II - Cable Schedule
EXHIBIT A - Form of Promissory Note
EXHIBIT B - Form of Borrowing Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E - Form of Security Agreement
EXHIBIT F - Form of Subordination Agreement
EXHIBIT G - Form of Opinion of General Counsel
to the Borrower
EXHIBIT H-1 - Form of Opinion of Local Illinois Counsel
to the Borrower
EXHIBIT H-2 - Form of Opinion of Local Maryland Counsel
to the Borrower
EXHIBIT H-3 - Form of Opinion of Local Minnesota Counsel
to the Borrower
EXHIBIT H-4 - Form of Opinion of Local New Jersey Counsel
to the Borrower
EXHIBIT I - Form of Opinion of FCC Counsel
to the Borrower
EXHIBIT J - Form of Opinion of Counsel to the Agent
EXHIBIT K - Form of Compliance Certificate
EXHIBIT L - Form of Closing Date Certificate
EXHIBIT M - Form of Release Letter
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of July 21, 1994, is made among CABLE
TV FUND 14-A, LTD., a Colorado limited partnership (the "Borrower"), the
various financial institutions as are or may become parties hereto
(collectively, the "Lenders"), and THE BANK OF NOVA SCOTIA ("Scotiabank"), as
agent for the Lenders (in such capacity, the "Agent" ).
WITNESSETH:
WHEREAS, the Borrower is currently the obligor under that certain
$80,000,000 Loan Agreement, dated as of May 30, 1991 (as amended, restated or
otherwise modified prior hereto, the "Existing Credit Agreement"), among the
Borrower, Scotiabank, as a lender, and Wells Fargo Bank, National Association
("Wells Fargo"), as a lender and as agent for the lenders;
WHEREAS, the Borrower desires to obtain Loans from the Lenders to:
(i) repay, in full, all of the loans outstanding under
the Existing Credit Agreement;
(ii) finance certain working capital requirements of the
Borrower; and
(iii) subject to Section 7.2.8 and the Subordination
Agreement, from time to time to repay advances made by the General
Partner to the Borrower; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth, to extend such Loans to the Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms when used in this
Agreement, including its preamble and recitals, shall, except where the context
otherwise requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
8
"Affiliate" means, with respect to any Person, any other Person which,
directly or indirectly, controls, is controlled by or is under common control
with, such Person (excluding any trustee under, or any committee with
responsibility for administering, any Plan). A Person shall be deemed to
"control" another Person if such Person possesses, directly or indirectly, the
power
(a) to vote 10% or more of the securities of such other
Person (on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners; or
(b) to direct or cause the direction of the management
and policies of such other Person whether by contract or otherwise.
"Agent" is defined in the preamble and includes each other Person as
shall have subsequently been appointed as the successor Agent pursuant to
Section 9.4.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
restated or otherwise modified and in effect on such date.
"Allocated Overhead" means, for any period, the fees payable (without
regard to the Borrower's right to defer or limit actual payment) to the General
Partner to compensate the General Partner for that portion of its general
overhead and administrative expenses, including all of its direct and indirect
expenses, allocable to the operation of the Borrower's business, including, but
not limited to, home office rent, supplies, telephone, travel and copying
charges, and salaries of full and part-time employees.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Agent at its Domestic Office as its base rate for Dollar loans; and
(b) the Federal Funds Rate most recently determined by
the Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Agent in connection with extensions of credit.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take
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effect simultaneously with each change in the Alternate Base Rate. The Agent
will give notice promptly to the Borrower and the Lenders of changes in the
Alternate Base Rate.
"Annualized Cash Flow" means, at any time, Cash Flow for the
immediately preceding Fiscal Quarter times four.
"Applicable Margin" means, at any time during which the Borrower's
Leverage Ratio falls within the ranges set forth below, and with respect to
Base Rate Loans of either type or Fixed Rate Loans, the amounts set forth below
opposite such ranges for such types of Loans:
Applicable Margin
-----------------------------------------------------
Leverage Ratio Base Rate Loans LIBO Rate Loans CD Rate Loans
- --------------- ---------------- ---------------- -------------
4.50:1 or greater 0.50% 1.50% 1.625%
4.00:1 or greater 0.25% 1.25% 1.375%
but less than
4.50:1
less than 4.00:1 0.00% 1.00% 1.125%
"Assessment Rate" is defined in Section 3.2.1.
"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means those officers of the General Partner whose
signatures and incumbency shall have been certified to the Agent and the
Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Basic Penetration Rate" means, at any time, a percentage derived from
a fraction, the numerator of which is the number of Basic Subscribers, at such
time, and the denominator of which is the number of Homes Passed, at such time.
"Basic Subscriber Rate" means the minimum standard monthly fees and
charges for "basic service" (as such term is commonly understood in the cable
television industry) charged to customers of the Cable Systems.
"Basic Subscribers" means, at any time, the total number of
subscribers subscribing to the Cable Systems (excluding "second connects" as
such term is commonly understood in the cable television industry) who (i) pay
the Basic Subscriber Rate for
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service, and (ii) are not more than 60 days past due in payment. In the case of
commercial buildings, such as hotels or motels, or in the case of multiple
residential dwellings, such as apartment houses and multifamily homes, which do
not obtain reduced bulk service rates, each separate guest unit or dwelling
unit receiving such services shall be counted as one subscriber. The number of
subscribers in a commercial building or in a multiple residential dwelling
which obtains a reduced bulk service rate shall be obtained by dividing (x) the
aggregate dollar amount of monthly subscribers' fees paid on account of such
commercial building or multiple residential dwelling for basic service by (y)
the Basic Subscriber Rate. Except for discounts to senior citizens less than
20% of the otherwise applicable rate, residential households (other than in a
multiple residential dwelling) paying the Basic Subscriber Rate on a discounted
basis or under any form of deferred payment arrangement shall not be included.
"Borrower" is defined in the preamble.
"Borrowing" means the Loans of the same type and, in the case of Fixed
Rate Loans, having the same Interest Period, made by all Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.3.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the General Partner, substantially in the form of
Exhibit B hereto.
"Business Day" means
(a) any day which is not a Saturday, a Sunday or a day on
which banks are authorized or required by law to be closed in New York
City, New York; and
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day on which dealings in Dollars
are carried on in the London interbank market.
"Cable Franchises" is defined in Section 6.15.
"Cable Schedule" means the Cable Schedule attached hereto as Schedule
II, as it may be amended, supplemented or otherwise modified from time to time
by the Borrower with the written consent of the Agent.
"Cable System" means the assets constituting a CATV or SMATV system
(including, without limitation, all related licenses, franchises and permits
issued under federal, state or local laws from time to time, and all agreements
with public utilities and microwave transmission companies, pole attachment,
use, access or
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rental agreements, conduit occupancy rights, utility easements and all other
property owned or used in connection with the services provided pursuant to,
and all other interests of the holder thereof to receive revenues from, or
pursuant to, said licenses, franchises and permits) listed on the Cable
Schedule and all assets constituting such a system hereafter acquired by the
Borrower serving subscribers within a geographical area covered by one or more
Franchises from the same Head End facility or by two or more related Head End
facilities.
"Capital Expenditures" means, for any period, the sum of
(a) the aggregate amount of all expenditures of the
Borrower and its Subsidiaries for fixed or capital assets made during
such period which, in accordance with GAAP, would be classified as
capital expenditures; and
(b) the aggregate amount of all Capitalized Lease
Liabilities incurred during such period.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as capitalized leases, and,
for purposes of this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than
one year after such time, issued or guaranteed by the United States
Government;
(b) commercial paper, maturing not more than nine months
from the date of issue, which is issued by
(i) a corporation (other than the Borrower or an
Affiliate of the Borrower) organized under the laws of any
state of the United States or of the District of Columbia and
whose long-term debt is rated at least A-1 by Standard &
Poor's Corporation or P-1 by Moody's Investors Service, Inc.,
or
(ii) any Lender (or its holding company);
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(c) any certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is issued by
either
(i) a commercial banking institution that is a
member of the Federal Reserve System and has combined capital,
surplus and undivided profits of not less than $1,000,000,000,
or
(ii) any Lender; or
(d) any repurchase agreement entered into with any Lender
(or any other commercial banking institution of the stature referred
to in clause (c)(i)) which
(i) is secured by a fully perfected security
interest in any obligation of the type described in any of
clauses (a) through (c), and
(ii) has a market value at the time such
repurchase agreement is entered into of not less than 100% of
the repurchase obligation of such Lender (or other commercial
banking institution) thereunder.
"Cash Flow" means, for any period, total consolidated revenues of the
Borrower for such period, less the sum of (i) operating expenses of the
Borrower for such period and (ii) general and administrative expenses of the
Borrower for such period (excluding Management Fees and Allocated Overhead for
such period, if any, included in clauses (i) and (ii)).
"CATV" means community antenna television.
"CD Rate" is defined in Section 3.2.1.
"CD Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate determined by
reference to the CD Rate (Reserve Adjusted).
"CD Rate (Reserve Adjusted)" is defined in Section 3.2.1.
"CD Reserve Requirement" is defined in Section 3.2.1.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Change in Control" means the occurrence of either or both of the
following:
(a) the failure of Jones Intercable to own, free and
clear of all Liens or other encumbrances, 100% of the
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13
outstanding general partnership interests in the Borrower; or
(b) the failure of Jones Intercable to be the sole
general partner of the Borrower; provided, however, that if Jones
Intercable ceases to be the sole general partner of the Borrower but
within 90 days thereafter a replacement general partner acceptable to
the Required Lenders in its sole discretion shall have been appointed,
then no Change in Control shall be deemed to have occurred.
"Closing Date Certificate" means a certificate of the General Partner,
substantially in the form of Exhibit L hereto.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Commitment" means, relative to any Lender, such Lender's obligation
to make Revolving Loans pursuant to Section 2.1.1.
"Commitment Amount" means, on any date prior to the Commitment
Termination Date, $80,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
"Commitment Termination Date" means the earliest of
(a) the Conversion Date;
(b) the date on which the Commitment Amount is terminated
in full or reduced to zero pursuant to Section 2.2; and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c), the
Commitments shall terminate automatically and without any further action.
"Commitment Termination Event" means
(a) the occurrence of any Default described in clauses
(a) through (d) of Section 8.1.8 with respect to the Borrower or any
Subsidiary of the Borrower; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or
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14
(ii) in the absence of such declaration, the
giving of notice by the Agent, acting at the direction of the
Required Lenders, to the Borrower that the Commitments have
been terminated.
"Communications Act" means the Communications Act of 1934 and the
rules and regulations issued thereunder, as amended, reformed or otherwise
modified from time to time.
"Competing Rantoul Franchise" is defined in Section 6.15.
"Compliance Certificate" means a certificate duly executed by an
Authorized Officer of the General Partner, substantially in the form of Exhibit
K hereto.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) any
indebtedness, obligation or other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Person. The amount of any Person's obligation under any Contingent Liability
shall (subject to any limitation set forth therein) be deemed to be the
outstanding principal amount (or maximum principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice and certificate duly
executed by an Authorized Officer of the General Partner, substantially in the
form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA.
"Conversion Date" means September 30, 1996.
"Conversion Date Amount" is defined in Section 3.1.
"Debt Service Ratio" means, at any time, the ratio, computed on a
consolidated basis, of:
(a) Annualized Cash Flow
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15
to
(b) the sum for the twelve calendar month period ending on
the last day of the immediately preceding Fiscal Quarter of
(i) all scheduled payments of principal of
Indebtedness whether or not paid, plus
(ii) Interest Expense.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event
of Default.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Agent.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or, if applicable,
designated in such Lender's Lender Assignment Agreement, or such other office
of a Lender (or any successor or assign of such Lender) within the United
States as may be designated from time to time by notice from such Lender, as
the case may be, to each other Person party hereto. A Lender may have separate
Domestic Offices for purposes of making, maintaining or continuing, as the case
may be, Base Rate Loans and CD Rate Loans.
"Effective Date" means the date this Agreement becomes effective
pursuant to section 10.8.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to the protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations issued thereunder, as amended, reformed or otherwise
modified from time to time. References to sections of ERISA also refer to any
successor sections.
"Event of Default" is defined in Section 8.1.
"Existing Credit Agreement" is defined in the first recital.
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16
"FCC" means the Federal Communications Commission or any successor
agency thereto performing functions similar to those performed by the Federal
Communications Commission on the date hereof.
"FCC License" means any license or permit issued by the FCC,
including, without limitation, licenses issued in connection with the operation
of CATV or SMATV systems, community antenna relay systems, microwave systems,
earth stations and business and other two-way radios.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means that certain confidential fee letter, dated May 26,
1994, from Scotiabank to the Borrower relating to the payment of fees in
connection with this Agreement.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "1994 Fiscal Year") refer to the Fiscal Year
ending on the December 31 occurring during such calendar year.
"Fixed Charge Coverage Ratio" means, at any time, the ratio, computed
on a consolidated basis of:
(a) the sum of
(i) cash on the consolidated balance sheet of the
Borrower at the beginning of the immediately preceding Fiscal
Quarter, minus the aggregate amount of General Partner
Advances at such time
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17
plus
(ii) Annualized Cash Flow
to
(b) the ending on the Quarter of sum for the last day of
twelve calendar month period the immediately preceding Fiscal
(i) Interest Expense,
plus
(ii) all scheduled payments of principal of
Indebtedness whether or not paid,
plus
(iii) Capital Expenditures,
plus
(iv) all state, local and federal income taxes
paid or payable in cash,
plus
(v) Management Fees and Allocated Overhead
actually paid.
"Fixed Rate Loan" means any CD Rate Loan or any LIBO Rate Loan.
"Franchise" means any franchise, permit, license or other
authorization granted by any Official Body, including all laws, regulations and
ordinances relating thereto, for the construction, operation and maintenance of
a CATV or SMATV system and the reception and transmission of signals by
microwave, and shall include, without limitation, all FCC Licenses and all
certificates of compliance and cable television registration statements which
are required to be issued by or filed with the FCC.
"Franchise Agreement" means any ordinance, agreement, contract or
other document stating the terms and conditions of any Franchise, including,
without limitation, all exhibits and schedules thereto, all amendments thereof
and consents, waivers and extensions issued thereunder, any documents
incorporated therein by reference and the application from which such Franchise
was granted.
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18
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"General Partner" means Jones Intercable until such time as Jones
Intercable is replaced in accordance with the terms of this Agreement by
another Person as the general partner of the Borrower, at which time, "General
Partner" shall mean such other Person. Whenever the term "General Partner" is
used herein, such term shall mean any such Person in its capacity as general
partner of the Borrower.
"General Partner Advances" means (i) all amounts representing deferred
Management Fees and deferred Allocated Overhead, (ii) all amounts representing
the Borrower's obligation to repay cash advances made to the Borrower or any of
its Subsidiaries by the General Partner or any previous general partner of the
Borrower, and (iii) any interest accrued on any of the foregoing amounts.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance within the meaning of any
other applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Head End" means the antenna site, the tower and the antenna, the
microwave communications equipment, the earth station and the head end
facilities, equipment, leaseholds or other real estate and leasehold
improvements relating thereto.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap, interest rate cap, and
interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
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19
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Homes Passed" means the actual number of residential dwellings which
can be connected to a Cable System by a single drop line from existing trunk
and distribution lines, which lines are energized and capable of carrying cable
television signals to subscribers and are connected to an existing Head End
facility. In the case of commercial buildings, such as hotels or motels, or in
the case of multiple residential dwellings, such as apartment houses and
multifamily homes, which do not and are not reasonably anticipated to obtain a
reduced bulk service rate, each separate guest unit or dwelling unit shall be
counted as one residential dwelling. The number of dwelling units in a
commercial building or in a multiple residential building which does or is
reasonably anticipated to obtain a reduced bulk service rate shall be obtained
by dividing (a) the aggregate dollar amount of monthly subscriber fees obtained
or reasonably anticipated to be obtained on account of such commercial building
or multiple residential building for basic service by (b) the applicable Basic
Subscriber Rate. Except for discounts to senior citizens less than 20% of the
otherwise applicable rate, residential households (other than a multiple
residential dwelling) paying for or reasonably expected to be paying for
services on a discounted basis or under any form of deferred payment
arrangement shall not be included.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of the Borrower, any qualification or exception to such opinion or
certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of
any item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause the Borrower to be in default of any of its
obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an
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enumeration of specific matters, to matters similar to the matters specifically
mentioned to matters similar to the
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments;
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(d) all Contingent Liabilities of such Person;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to pay the
deferred purchase price of property or services, and indebtedness
(excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse; and
(g) all other items which, in accordance with GAAP, would
be included as liabilities on the liability side of the balance sheet
of such Person as of the date at which Indebtedness is to be
determined.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Interest Coverage Ratio" means, at any time, the ratio, computed on a
consolidated basis, of:
(a) Cash Flow for the immediately preceding Fiscal Quarter
to
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21
(b) Interest Expense for the immediately preceding Fiscal
Quarter.
"Interest Expense" means, for any period, the interest expense of the
Borrower for such period, including, (whether or not includable under GAAP) all
net amounts payable with respect to Hedging Obligations, commitment fees owed
with respect to the Commitments and the portion of any Capitalized Lease
Liabilities of the Borrower allocable to interest expense, in each case paid or
payable during such period.
"Interest Period" means, relative to any Fixed Rate Loans, the period
beginning on (and including) the date on which such Fixed Rate Loan is made or
continued as, or converted into, a Fixed Rate Loan pursuant to Section 2.3 or
2.4 and ending on (but excluding) the day which is, in the case of a CD Rate
Loan, 30, 60, 90, 180 or, if the Agent determines that a 360 day rate is
available, 360 days thereafter, or which, in the case of a LIBO Rate Loan,
numerically corresponds to such date one, two, three, six or, if the Agent
determines that a twelve month rate is available, twelve months thereafter (or,
if such month has no numerically corresponding day, on the last Business Day of
such month), in each case as the Borrower may select in its relevant notice
pursuant to Section 2.3 or 2.4; provided, however, that
(a) the Borrower shall not be permitted to select
Interest Periods to be in effect at any one time which have expiration
dates occurring on more than six different dates;
(b) Interest Periods commencing on the same date for
Loans comprising part of the same Borrowing shall be of the same
duration;
(c) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the
next following Business Day (unless, if such Interest Period applies
to LIBO Rate Loans, such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period
shall end on the Business Day next preceding such numerically
corresponding day); and
(d) no Interest Period may end later than the Stated
Maturity Date.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding (i) commission, travel and similar advances to
officers and employees made in the ordinary course of business and
(ii) trade credit made available to
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22
or loans or advances made to subcontractors or suppliers on customary
terms and in the ordinary course of the Borrower's business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person
in any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made
by the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"Jones Intercable" means Jones Intercable Inc., a Colorado corporation.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit D hereto.
"Lenders" is defined in the preamble.
"Leverage RatiO" means, at any time, the ratio, computed on a
consolidated basis, of:
(a) Total Debt at such time
to
(b) Annualized Cash Flow.
"LIBO Rate" is defined in Section 3.2.1.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" is defined in SectiOn 3.2.1.
"LIBOR Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or, if applicable,
designated in such Lender's Lender Assignment Agreement or such other office of
a Lender (or any successor or assign of such Lender) as designated from time to
time by notice from such Lender to the Borrower and the Agent, whether or not
outside the United States, which shall be making or maintaining LIBO Rate Loans
of such Lender hereunder.
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23
"LIBOR Reserve Percentage" is defined in Section 3.2.1.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means, as the context may require, either a Revolving Loan or a
Term Loan of any type.
"Loan Document" means this Agreement, the Notes, the Security
Agreement, the Subordination Agreement, the Fee Letter, each agreement
evidencing Hedging Obligations of the Borrower, and each other agreement,
document or instrument delivered in connection with this Agreement.
"Management Fees" means, for any period, the management fees payable
by the Borrower to the General Partner during such period for management
services provided to the Borrower pursuant to the Partnership Agreement.
"Material Acquisition" means a purchase by the Borrower of all or
substantially all of the assets constituting a CATV and SMATV system or all or
substantially all of the Assets of another Person, or the acquisition by the
Borrower of another Person through merger, if, in any case, the total
consideration to be paid by the Borrower in respect thereof (x) exceeds
$500,000, or (y) when added together with the total consideration paid by the
Borrower in respect of all other similar transactions, exceeds $2,000,000 in
the aggregate.
"Material Agreement" is defined in Section 8.1.12.
"Material Disposition" means a sale, transfer, lease or any other type
of disposition by the Borrower of all or a portion of the assets constituting a
Cable System or all or a portion of any other of its assets or properties (or
rights with respect thereto) if the aggregate fair market value of such Cable
System, assets or properties (x) exceeds $500,000 or (y) when added together
with the aggregate fair market value of all other Cable Systems, assets or
properties disposed of by the Borrower in similar transactions, exceeds
$2,000,000 in the aggregate.
"Naperville Cable System" means the Cable System owned by the Borrower
and located in and around Naperville, Illinois.
"Non-Excluded Taxes" is defined in Section 4.6.
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"Note" means a promissory note of the Borrower payable to the order of
any Lender, in the form of Exhibit A hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing (i)
prior to the Conversion Date, the aggregate Indebtedness of the Borrower to
such Lender resulting from outstanding Revolving Loans, and (ii) on and after
the Conversion Date, the principal amount of such Lender's Term Loan, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower arising under or in connection with this Agreement, the Notes and each
other Loan Document.
"Official Body" means any Federal, State or local government or
political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court, tribunal,
grand jury or arbitrator, in each case whether foreign or domestic.
"Organic Document" means, relative to any Person, as applicable, its
certificate of incorporation and its by-laws or its certificate of limited
partnership and partnership agreement, and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its authorized shares of
capital stock or partnership interests, as the case may be.
"Participant" is defined in Section 10.11.2.
"Partnership Agreement" means the Limited Partnership Agreement of the
Borrower, dated as of February 4, 1987 (as the same may be amended, restated or
otherwise modified from time to time).
"Pay to Basic Rate" means, at any time, a percentage derived from a
fraction, the numerator of which is the number of Pay Units at such time, and
the denominator of which is the number of Basic Subscribers at such time.
"Pay Unit" means a cable programming service subscribed to by any
subscriber of a Cable System at an additional charge in excess of the amount
paid by any such Subscriber for basic or expanded basic service, which
subscription is not more than 60 days past due. The number of Pay Units in the
case of subscribers receiving a reduced bulk pay programming service rate shall
be determined by dividing (x) the aggregate dollar amount of monthly
subscribers' fees paid on account of such services by (y) the standard rate for
the pay programming services received.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of
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ERISA (other than a multiemployer plan as defined in section 4001(a) (3) of
ERISA), and to which the Borrower or any corporation, trade or business that
is, along with the Borrower, a member of a Controlled Group, may have
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set forth
opposite its signature hereto or, if applicable, set forth in such Lender's
Lender Assignment Agreement, as such percentage may be adjusted from time to
time pursuant to Lender Assignment Agreement(s) executed by such Lender and its
Assignee Lender(s) and delivered pursuant to Section 10.11.1.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pole Agreement" means any conduit occupancy rights, pole agreement,
pole rental, pole use, access or similar agreement with any telephone company,
public authority, public utility or other entity pursuant to which the coaxial,
fiber optic or other type of cable and local distribution units of a cable
television system are extended.
"Quarterly Payment Date" means the last day of each March, June,
September, and December or, if any such day is not a Business Day, the next
succeeding Business Day.
"Release" means a "release", as such term is defined in CERCLA.
"Required Lenders" means, at any time, Lenders holding at least 66 and
2/3% of the then aggregate outstanding principal amount of the Notes then held
by the Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 66 and 2/3% of the Commitments.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., and the rules
and regulations issued thereunder, as amended, reformed or otherwise modified
from time to time.
"Revolving Loan" is defined in Section 2.1.1.
"Scotiabank" is defined in the preamble.
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"Security Agreement" means the Security Agreement executed and
delivered pursuant to Section 5.1.4, substantially in the form of Exhibit E
hereto (as the same may be amended, restated or otherwise modified from time to
time).
"SMATV" means satellite master antenna television.
"Stated Maturity Date" means June 30, 2002.
"Subordination Agreement" means the Subordination Agreement executed
and delivered pursuant to Section 5.1.5, substantially in the form of Exhibit F
hereto (as the same may be amended, restated or otherwise modified from time to
time).
"Subsidiary" means, with respect to any Person, any corporation of
which more than 50% of the 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 by
such Person, by such Person and one or more other Subsidiaries of such Person,
or by one or more other Subsidiaries of such Person.
"Taxes" is defined in Section 4.6.
"Tax Transferee" is defined in Section 4.6.
"Term Loan" is defined in Section 3.1.
"Total Debt" means all Indebtedness of the Borrower other than
Indebtedness of the type described in clauses (e) and (h) of Section 7.2.2.
"Trade Name Certificate" means a certificate of assumed or trade name
with respect to the Borrower filed with the Department of Revenue of the State
of Colorado.
"Turnersville Cable System" means the Cable System owned by the
Borrower and located in and around Turnersville, New Jersey.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan, a CD Rate Loan or a LIBO Rate Loan.
"United States" or "U.S." means the United States of America, its
fifty States and the District of Columbia.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3 (1) of ERISA.
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"Wells Fargo" is defined in the first recital.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note, Borrowing Request, Continuation/Conversion Notice, Loan Document,
notice and other communication delivered from time to time in connection with
this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in
any Article, Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared
in accordance with, those generally accepted accounting principles ("GAAP")
applied in the preparation of the financial statements referred to in Section
6.5.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the conditions
of this Agreement, each Lender severally agrees to make Loans pursuant to the
Commitment described in this Section 2.1.
SECTION 2.1.1. Revolving Loan Commitment. From time to time on any
Business Day occurring prior to the Commitment Termination Date, each Lender
will make loans (relative to such Lender, its "Revolving Loans") to the
Borrower equal to such Lender's Percentage of the aggregate amount of the
Borrowing of Revolving Loans requested by the Borrower to be made on such day.
The Commitment of each Lender described in this Section 2.1.1 is herein
referred to as its "Commitment". On the terms and subject to the conditions
hereof, the Borrower may from time to time prior to the Commitment Termination
Date borrow, repay and reborrow the Revolving Loans.
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SECTION 2.1.2. Lenders Not Permitted or Required To Make Revolving
Loans. No Lender shall be permitted or required to make any Revolving Loan if,
after giving effect thereto, the aggregate outstanding principal amount of all
Revolving Loans:
(i) of all the Lenders would exceed the Commitment
Amount; or
(ii) of such Lender would exceed such Lender's Percentage
of the Commitment Amount.
SECTION 2.2. Reduction of Commitment Amount. The Borrower may, from
time to time, on any Business Day occurring after the Effective Date,
voluntarily reduce the Commitment Amount; provided, however, that all such
reductions shall require at least three Business Days' prior notice to the
Agent and shall be permanent, and any partial reduction of the Commitment
Amount shall be in a minimum amount of $1,000,000 and in an integral multiple
of $100,000.
SECTION 2.3. Borrowing Procedure. By delivering a Borrowing Request to
the Agent on or before 12:00 noon, New York City time, on a Business Day, the
Borrower may from time to time irrevocably request, in the case of Fixed Rate
Loans, on not less than three nor more than five Business Days' notice, or, in
the case of Base Rate Loans, on not less than one nor more than five Business
Days' notice, that a Borrowing be made in a minimum amount of $1,000,000 and an
integral multiple of $100,000, or in the unused amount of the applicable
Commitment. Upon receipt of a Borrowing Request, the Agent shall promptly
notify the other Lenders on the same day of the Borrowing requested thereby. On
the terms and subject to the conditions of this Agreement, each Borrowing shall
be comprised of the type of Loans, and shall be made on the Business Day,
specified in such Borrowing Request. On or before 2:00 p.m., New York City
time, on such Business Day, each Lender shall deposit with the Agent same day
funds in an amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the Agent shall
specify from time to time by notice to the Lenders. To the extent funds are
received from the Lenders, the Agent shall make such funds available to the
Borrower by wire transfer to the accounts the Borrower shall have specified in
its Borrowing Request. No Lender's obligation to make any Loan shall be
affected by any other Lender's failure to make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Agent on or before 12:00 noon, New York
City time, on a Business Day, the Borrower may from time to time irrevocably
elect, on not less than three nor more than five Business Days' notice, that
all, or any portion in an aggregate minimum amount of $1,000,000 and an
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integral multiple of $100,000, of any Loans be, in the case of Base Rate Loans,
converted into Fixed Rate Loans of either type or, in the case of Fixed Rate
Loans of either type, be converted into a Base Rate Loan or a Fixed Rate Loan
of the other type or continued as a Fixed Rate Loan of such type (in the
absence of delivery of a Continuation/Conversion Notice with respect to any
Fixed Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such Fixed Rate Loan shall, on
such last day, automatically convert into a Base Rate Loan); provided, however,
that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders, and (y) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, Fixed Rate Loans when any Default has occurred and is continuing. Upon
receipt of a Continuation/Conversion Notice, the Agent shall promptly notify
the other Lenders on the same day of the continuation or conversion requested
thereby.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert Fixed Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such Fixed Rate Loan; provided,
however, that such Fixed Rate Loan shall nonetheless be deemed to have been
made and to be held by such Lender, and the obligation of the Borrower to repay
such Fixed Rate Loan shall nevertheless be to such Lender for the account of
such foreign branch, Affiliate or international banking facility. In addition,
the Borrower hereby consents and agrees that, for purposes of any determination
to be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be
conclusively assumed that each Lender elected to fund all Fixed Rate Loans by
purchasing, as the case may be, Dollar certificates of deposit in the U.S. or
Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Notes. Each Lender's Loans shall be evidenced by a Note
payable to the order of such Lender in a maximum principal amount equal to such
Lender's Percentage of the original applicable Commitment Amount. The Borrower
hereby irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender's Note (or on any
continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal of, and the interest rate and
Interest Period applicable to, the Loans evidenced thereby. Such notations
shall be conclusive and binding on the Borrower absent manifest error;
provided, however, that the failure of any Lender to make any such notations
shall not limit or otherwise affect any Obligations of the Borrower.
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ARTICLE III
CONVERSION, REPAYMENTS, PREPAYMENTS,
INTEREST AND FEES
SECTION 3.1. Conversion, Repayments and Prepayments. On the Conversion
Date, the aggregate outstanding principal amount of each Lender's Revolving
Loans (with respect to each Lender, the "Conversion Date Amount") shall
automatically convert into a term loan (with respect to each Lender, its "Term
Loan"). Thereafter, the Borrower shall repay the outstanding principal amount
of each Lender's Term Loan in successive quarterly installments on each
Quarterly Payment Date beginning with December 31, 1996 and ending on the
Stated Maturity Date. The amount of each installment in each calendar year
shall be equal, and the aggregate principal amount of all installments made in
each calendar year shall be equal to an amount that, when subtracted from the
Conversion Date Amount of each Lender's Term Loan, shall result in the
Conversion Date Amount at the end of such calendar year being reduced by a
percentage at least equal to the percentage set forth below opposite such year:
Percentage (%) of Conversion Date Amount
Calendar Year to be Repaid at End of Calendar Year
------------- ------------------------------------
1996 2.50%
1997 5.00%
1998 12.50%
1999 17.50%
2000 22.50%
2001 25.00%.
The remaining unpaid principal amount of all Term Loans shall be
repaid by the Borrower at the end of the first calendar quarter in 2002 and on
the Stated Maturity Date in equal installments.
Prior to the Stated Maturity Date, the Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Term Loans; provided, however, that
(i) any such prepayment shall be made pro rata
among Loans of the same type and, if applicable, having the
same Interest Period of all Lenders;
(ii) no such prepayment of any Fixed Rate Loan may
be made on any day other than the last day of the Interest
Period for such Loan;
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(iii) all such voluntary prepayments shall require
at least three but no more than five Business Days' prior
notice to the Agent in the case of Fixed Rate Loans, and at
least one but no more than five Business Days' prior notice to
the Agent in the case of Base Rate Loans; and
(iv) all such voluntary partial prepayments shall
be in an aggregate minimum amount of $1,000,000 and an
integral multiple of $100,000;
(b) shall, on each date when any reduction in the
Commitment Amount shall become effective, including pursuant to
Section 2.2, make a mandatory prepayment of all Revolving Loans equal
to the excess, if any, of the aggregate outstanding principal amount
of all Revolving Loans over the Commitment Amount as so reduced; and
(c) shall, immediately upon any acceleration of the
Stated Maturity Date of any Loans pursuant to Section 8.2 or Section
8.3, repay all Loans, unless, pursuant to Section 8.3, only a portion
of all Loans is so accelerated.
Each voluntary prepayment of Term Loans made pursuant to clause (a) shall be
applied, to the extent of such prepayment, in the inverse order of the
scheduled repayments of Term Loans set forth in this Section 3.1. Each
prepayment of any Term Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No voluntary
prepayment of principal of any Revolving Loans shall cause a reduction in the
Commitment Amount.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the Borrower may elect
that Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a
Base Rate Loan, equal to the sum of the Alternate Base Rate from time
to time in effect plus the Applicable Margin;
(b) on that portion maintained as a CD Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the CD
Rate (Reserve Adjusted) for such Interest Period plus the Applicable
Margin; and
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(c) on that portion maintained as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the sum of
the LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin.
The Applicable Margin for each type of Loan shall change automatically on the
date a Compliance Certificate is delivered in accordance with Sections 7.1.1
(b) and (c) indicating a change in the then existing Leverage Ratio mandating a
change in such margins; provided, however, that if such Compliance Certificate
is not delivered within the time required by such Sections, such change in such
margins shall, upon ultimate delivery of such Compliance Certificate, be deemed
nevertheless to have been effective on and as of the date on which such
Compliance Certificate was required to be delivered pursuant to such Section.
The "CD Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a CD Rate Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) determined pursuant to the following formula:
CDR(RA) = CDR + AR
-------------
(1.00 - CDRR)
where:
CDR(RA) = CD Rate (Reserve Adjusted)
CDR = CD Rate
CDRR = CD Reserve Requirement
AR = Assessment Rate
The CD Rate (Reserve Adjusted) for any Interest Period for CD Rate Loans will
be determined by the Agent on the basis of the CD Reserve Requirement and
Assessment Rate in effect on, and the applicable rates furnished to and
received by the Agent from Scotiabank, on the first day of such Interest
Period.
"CD Rate" means, relative to any Interest Period for CD Rate Loans,
the rate of interest determined by the Agent to be the arithmetic average
(rounded upwards, if necessary, to the nearest 1/16 of 1%) of the prevailing
rates per annum bid at 10:00 a.m., New York City time (or as soon thereafter as
practicable), on the first day of such Interest Period by two or more
certificate of deposit dealers of recognized standing located in New York City
for the purchase at face value from Scotiabank of its certificates of deposit
in an amount approximately equal to the CD Rate Loan being made or maintained
by Scotiabank to which such Interest Period applies and having a maturity
approximately equal to such Interest Period.
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The "CD Reserve Requirement" means, relative to any Interest Period
for CD Rate Loans, a percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, supplemental, marginal and
other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements), specified under regulations issued
from time to time by the F.R.S. Board and then applicable to the class of banks
of which Scotiabank is a member, on deposits of the type used as a reference in
determining the CD Rate and having a maturity approximately equal to such
Interest Period.
The "Assessment Rate" means, for any Interest Period for CD Rate
Loans, the net annual assessment rate (rounded upwards, if necessary, to the
next higher 1/100 Of 1%) estimated by Scotiabank to be the then current annual
assessment payable by Scotiabank to the Federal Deposit Insurance Corporation
(or any successor) for insuring time deposits at offices of Scotiabank in the
United States.
The "LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) -------------------------------
1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Agent on the basis of the LIBOR Reserve Percentage in
effect on, and the applicable rates furnished to and received by the Agent from
Scotiabank, two Business Days before the first day of such Interest Period.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans, the rate of interest equal to the average (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the rates per annum at which Dollar
deposits in immediately available funds are offered to Scotiabank's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London time two
Business Days prior to the beginning of such Interest Period for delivery on
the first day of such Interest Period, and in an amount approximately equal to
the amount of Scotiabank's LIBO Rate Loan and for a period approximately equal
to such Interest Period.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or
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other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as
currently defined in Regulation D of the F.R.S. Board, having a term
approximately equal or comparable to such Interest Period.
All Fixed Rate Loans shall bear interest from and including the first
day of the applicable Interest Period to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such
Fixed Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal
amount of any Loan is due and payable (whether on the Stated Maturity Date,
upon acceleration or otherwise), or after any other monetary Obligation of the
Borrower shall have become due and payable, the Borrower shall pay, but only to
the extent permitted by law, interest (after as well as before judgment) on
such amounts at a rate per annum equal to the Alternate Base Rate plus a margin
of 2%. Notwithstanding the immediately preceding sentence, the Borrower shall
not be obligated to pay interest at the default rate on a Loan if the sole
reason for the Borrower's default with respect to such Loan is failure to
timely make a required interest payment on such Loan on account of the Agent's
failure to timely invoice the Borrower with respect to the amount of accrued
interest due and payable on such Loan.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Conversion Date with respect to Revolving
Loans, and on the Stated Maturity Date with respect to Term Loans;
(b) on the date of any optional or required payment or
prepayment, in whole or in part, of principal outstanding on such
Loan;
(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the Effective Date;
(d) with respect to Fixed Rate Loans, on the last day of
each applicable Interest Period (and, if such Interest Period shall
exceed 90 days, on the 90th day of such Interest Period);
(e) with respect to any Base Rate Loans converted into
Fixed Rate Loans on a day when interest would not otherwise have been
payable pursuant to clause (c), on the date of such conversion; and
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(f) on that portion of any Loans the Stated Maturity Date
of which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth
in this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Agent for the account of each Lender, for the period (including any portion
thereof when any of its Commitments are suspended by reason of the Borrower's
inability to satisfy any condition of Article V) commencing on the Effective
Date and continuing through the final Commitment Termination Date, a commitment
fee at the rate of 3/8 of 1% per annum on such Lender's Percentage of the sum
of the average daily unused portion of each Commitment Amount. Such commitment
fees shall be payable by the Borrower in arrears on each Quarterly Payment
Date, commencing with the first such day following the Effective Date, and on
the Commitment Termination Date.
SECTION 3.3.2. Agent's Fee. The Borrower agrees to timely pay to the
Agent, for the Agent's own account, the fees provided for in the Fee Letter.
ARTICLE IV
CERTAIN CD RATE, LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. Fixed Rate Lending UnlawfUl. If any Lender shall
determine (which determination shall, upon notice thereof to the Borrower and
the Lenders, be conclusive and binding on the Borrower) that the introduction
of or any change in or in the interpretation of any law makes it unlawful, or
any central bank or other governmental authority asserts that it is unlawful,
for such Lender to make, continue or maintain any Loan as, or to convert any
Loan into a Fixed Rate Loan of a certain type, the obligations of all Lenders
to make, continue, maintain or convert into any such Loans shall, upon such
determination, forthwith be suspended until such Lender shall notify the Agent
that the circumstances causing such suspension no longer exist, and all Fixed
Rate Loans of such type shall automatically convert into Base Rate Loans at the
end of the then current Interest Periods
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with respect thereto or sooner, if required by such law or assertion.
SECTION 4.2. Deposits Unavailable. If the Agent shall have
determined, or shall be informed by a Lender, that
(a) Dollar certificates of deposit or Dollar deposits, as
the case may be, in the relevant amount and for the relevant Interest
Period are not available to Scotiabank or such Lender in its relevant
market; or
(b) by reason of circumstances affecting such relevant
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to Fixed Rate Loans of such type,
then, upon notice from the Agent to the Borrower and the Lenders of such fact,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, Fixed Rate Loans of such
type shall forthwith be suspended until the Agent shall determine, or be
informed, that and, in either case, shall give notice to the Borrower and the
other Lenders that, the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased Fixed Rate Loan Costs, etc. The Borrower
agrees to reimburse each Lender for any increase in the cost to such Lender of,
or any reduction in the amount of any sum receivable by such Lender in respect
of, making, continuing or maintaining (or of its obligation to make, continue
or maintain) any Loans as, or of converting (or of its obligation to convert)
any Loans into, Fixed Rate Loans. Such Lender shall promptly notify the Agent
and the Borrower in writing of the occurrence of any such event, such notice to
state, in reasonable detail, the reasons therefor and the additional amount
required fully to compensate such Lender for such increased cost or reduced
amount. Such additional amounts shall be payable by the Borrower directly to
such Lender within five days of its receipt of such notice, and such notice
shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur
any loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a Fixed
Rate Loan) as a result of
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(a) any conversion or repayment or prepayment of the
principal amount of any Fixed Rate Loans on a date other than the
scheduled last day of the Interest Period applicable thereto, whether
pursuant to Section 3.1 or otherwise;
(b) any Loans not being made as Fixed Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into,
Fixed Rate Loans in accordance with the Continuation/ Conversion
Notice therefor,
then, upon the written notice of such Lender to the Borrower (with a copy to
the Agent), the Borrower shall, within five days of its receipt thereof, pay
directly to such Lender such amount as will (in the reasonable determination of
such Lender) reimburse such Lender for such loss or expense. Such written
notice (which shall include calculations in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on the Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments or the Loans made by such Lender is reduced to a
level below that which such Lender or such controlling Person could have
achieved but for the occurrence of any such circumstance, then, in any such
case upon notice from time to time by such Lender to the Borrower, the Borrower
shall immediately pay directly to such Lender additional amounts sufficient to
compensate such Lender or such controlling Person for such reduction in rate of
return. A statement of such Lender as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on the Borrower. In determining such
amount, such Lender may use any reasonable method of averaging and attribution
that it (in its sole and absolute discretion) shall deem applicable.
SECTION 4.6. Taxes. All payments by the Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or future income,
excise, stamp or
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franchise taxes and other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority ("Taxes"), but excluding
(i) Taxes imposed on any Lender's net income (including, without limitation,
any Taxes imposed on branch profits) and franchise Taxes imposed on any Lender
by the jurisdiction under the laws of which such Lender is organized or any
political subdivision thereof or by the jurisdiction of such Lender's lending
office, (ii) any Taxes that are in effect and that would apply to a payment to
such Lender as of the Effective Date, (iii) if any Person acquires any interest
in this Agreement or any Note pursuant to the provisions hereof, including
without limitation a participation (whether or not by operation of law), or a
foreign Lender changes the office in which its Loan is made, accounted for or
booked (any such Person or such foreign Lender in that event being referred to
as a "Tax Transferee"), any Taxes to the extent that they are in effect and
would apply to a payment to such Tax Transferee as of the date of the
acquisition of such interest or change in office, as the case may be, and (iv)
Taxes which are otherwise included in any amounts otherwise payable by the
Borrower pursuant to any other provision of this Agreement (all such
nonexcluded Taxes being hereinafter referred to as "Nonexcluded Taxes"). In the
event that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Non-Excluded Taxes pursuant to
any applicable law, rule or regulation, then the Borrower will
(a) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such payment
to such authority; and
(c) pay to the Agent for the account of the Lenders such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount
such Lender would have received had no such withholding or deduction
been required.
Moreover, if any Non-Excluded Taxes are directly asserted against the Agent or
any Lender with respect to any payment received by the Agent or such Lender
hereunder, the Agent or such Lender may pay such Non-Excluded Taxes and the
Borrower will promptly pay such additional amount (including any penalties,
interest or expenses) as is necessary in order that the net amount received by
such person after the payment of such Non-Excluded Taxes (including any
Non-Excluded Taxes on such additional amount) shall equal the amount such
Person would have received had not such Non-Excluded Taxes been asserted.
Within 30 days after the date that any Lender or any Tax Transferee receives a
refund of
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any Non-Excluded Taxes for which it has been indemnified by the Borrower
pursuant to the provisions of this Section, such Lender or Tax Transferee, as
the case may be, shall pay to the Borrower such refund of Non-Excluded Taxes
along with any interest received with respect thereto.
If the Borrower fails to pay any Non-Excluded Taxes, when due to the
appropriate taxing authority or fails to remit to the Agent, for the account of
the respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental
Non-Excluded Taxes, interest or penalties that may become payable by any Lender
as a result of any such failure. For purposes of this Section 4.6, a
distribution hereunder by the Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the Borrower.
Upon the request of the Borrower or the Agent, each Lender that is
organized under the laws of a jurisdiction other than the United States shall,
prior to the due date of any payments under the Notes, execute and deliver to
the Borrower and the Agent, on or about the first scheduled payment date in
each Fiscal Year, one or more (as the Borrower or the Agent may reasonably
request) United States Internal Revenue Service Forms 4224 or Forms 1001 or
such other forms or documents (or successor forms or documents), appropriately
completed, as may be applicable to establish the extent, if any, to which a
payment to such Lender is exempt from withholding or deduction of Non-Excluded
Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise
expressly provided, all payments by the Borrower pursuant to this Agreement,
the Notes or any other Loan Document shall be made by the Borrower to the Agent
for the pro rata account of the Lenders entitled to receive such payment. All
such payments required to be made to the Agent shall be made, without setoff,
deduction or counterclaim, not later than 12:00 noon, New York City time, on
the date due, in same day or immediately available funds, to such account as
the Agent shall specify from time to time by notice to the Borrower. Funds
received after that time shall be deemed to have been received by the Agent on
the next succeeding Business Day. The Agent shall promptly remit in same day
funds to each Lender its share, if any, of such payments received by the Agent
for the account of such Lender (provided, that, any such funds remitted after
the date received shall be remitted with interest accrued thereon at the
Federal Funds Rate). All interest and fees shall be computed on the basis of
the actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on a Base Rate Loan
(other then when such interest is calculated with respect to the Federal Funds
Rate), 365 days or, if appropriate,
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366 days). Whenever any payment to be made shall otherwise be due on a day
which is not a Business Day, such payment shall (except as otherwise required
by clause (c) of the definition of the term "Interest Period" with respect to
LIBO Rate Loans) be made on the next succeeding Business Day and such extension
of time shall be included in computing interest and fees, if any, in connection
with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan (other than pursuant to the terms
of Sections 4.3, 4.4, 4.5 and 4.6) in excess of its pro rata share of payments
then or therewith obtained by all Lenders, such Lender shall purchase from the
other Lenders such participations in Loans made by them as shall be necessary
to cause such purchasing Lender to share the excess payment or other recovery
ratably with each of them; provided, however, that if all or any portion of the
excess payment or other recovery is thereafter recovered from such purchasing
Lender, the purchase shall be rescinded and each Lender which has sold a
participation to the purchasing Lender shall repay to the purchasing Lender the
purchase price to the ratable extent of such recovery together with an amount
equal to such selling Lender's ratable share (according to the proportion of
(a) the amount of such selling Lender's required
repayment to the purchasing Lender
to
(b) total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders entitled under this Section to share in the benefits of
any recovery on such secured claim.
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SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
Default described in clauses (a) through (d) of Section 8.1.8 or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations) the Borrower hereby grants to each Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of the
Borrower then or thereafter maintained with or otherwise held by such Lender;
provided, however, that any such appropriation and application shall be subject
to the provisions of Section 4.8. Each Lender agrees promptly to notify the
Borrower and the Agent after any such setoff and application made by such
Lender; provided, however, that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each Lender
under this Section are in addition to other rights and remedies (including
other rights of setoff under applicable law or otherwise) which such Lender may
have.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Initial Borrowing. The obligations of the Lenders to
fund the initial Borrowing shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 5.1.
SECTION 5.1.1. General Partner's Certificate. The Agent shall have
received from the General Partner, a certificate of the Secretary or an
Assistant Secretary of the General Partner, dated the date of the initial
Borrowing, as to:
(a) the Borrower's Organic Documents, in each case, as in
effect on the date of the initial Borrowing, copies of which shall be
attached thereto, together with (x) a certificate of good standing for
the Borrower issued by the jurisdiction in which it is organized, and
dated as of a date reasonably close to the date of the initial
Borrowing, and (y) the most recently filed Trade Name Certificate,
(b) the General Partner's Organic Documents, in each
case, as in effect on the date of the initial Borrowing, copies of
which shall be attached thereto, together with a certificate of good
standing for the General Partner issued by the jurisdiction in which
it is organized, and dated as of a date reasonably close to the date
of the initial Borrowing,
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(c) all action necessary for the execution, delivery and
performance of this Agreement, the Note, and each other Loan Document
by the General Partner, as the general partner of the Borrower,
together with copies of all resolutions to such effect attached
thereto, and
(d) the incumbency and signatures of those officers of
the General Partner authorized to act on behalf of and bind the
General Partner, in its capacity as general partner of the Borrower,
with respect to this Agreement, the Note and each other Loan Document;
which certificate each Lender may conclusively rely upon until it shall have
received a further certificate from the General Partner canceling or amending
such prior certificates.
SECTION 5.1.2. Delivery of Notes. The Agent shall have received each
Lender's Note, in each case, duly executed and delivered by the Borrower.
SECTION 5.1.3. Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule, together with all interest, prepayment premiums and other
amounts due and payable with respect thereto, shall have been paid in full
(including, to the extent necessary, from proceeds of the initial Borrowing);
all Liens securing payment of any such Indebtedness shall have been released;
and the Agent shall have received all Uniform Commercial Code Form UCC-3
termination statements or other instruments as may be necessary or appropriate
to release such Liens (including the Liens held by Wells Fargo in its capacity
as Agent under the Existing Credit Agreement) in each case, duly executed and
completed by the holders of such Liens and in a form suitable for filing.
SECTION 5.1.4. Security Aqreement. The Agent shall have received
executed counterparts of the Security Agreement, dated as of the date hereof,
duly executed by the Borrower, together with
(a) acknowledgment copies of properly filed Uniform
Commercial Code financing statements (Form UCC-1), or such other
evidence of filing as may be acceptable to the Agent, naming the
Borrower as the debtor and the Agent as the secured party, or other
similar instruments or documents, as may be necessary or, in the
opinion of the Agent, desirable to perfect the security interest of
the Agent pursuant to the Security Agreement;
(b) executed copies of proper Uniform Commercial Code
Form UCC-3 termination statements, if any, necessary to
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release all Liens and other rights of any Person in any collateral
described in the Security Agreement previously granted by any Person
(other than with respect to collateral subject to Capitalized Leases
and purchase money Liens) together with such other Uniform Commercial
Code Form UCC-3 termination statements as the Agent may reasonably
request; and
(c) certified copies of Uniform Commercial Code Requests
for Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Agent, dated a date reasonably
near to the date of the initial Borrowing, listing all effective
financing statements which name the Borrower (under its present name
and any previous names) as the debtor and which are filed in the
jurisdictions in which filings were made pursuant to clause (a) above,
together with copies of such financing statements (none of which
(other than those described in clause (a)) if such Form UCC-11 or
search report, as the case may be, is current enough to list such
financing statements described in clause (a)) shall cover any
collateral described in the Security Agreement or with respect to
assets subject to Capitalized Leases or purchase money Liens, in each
case as permitted hereunder).
SECTION 5.1.5. Subordination Agreement. The Agent shall have
received executed counterparts of the Subordination Agreement, dated as of the
date hereof, duly executed by the Borrower and Jones Intercable.
SECTION 5.1.6. Opinions of Counsel. The Agent shall have received
opinions, dated the date of the initial Borrowing and addressed to the Agent
and all Lenders, from
(a) Elizabeth Steele, Esq., general counsel to the
Borrower, substantially in the form of Exhibit G hereto, unless such
opinion is delivered after the Effective Date pursuant to Section
7.1.10;
(b) McDermott, Will & Emery, Dow Lohnes & Albertson,
Dorsey & Whitney and Meyner & Landis, local counsel to the Borrower,
in the states of Illinois, Maryland, Minnesota and New Jersey,
respectively, substantially in the form of Exhibits H-1, H-2, H-3 and
H- 4 hereto;
(c) Dow Lohnes & Albertson, FCC counsel to the Borrower,
substantially in the form of Exhibit I hereto; and
(d) Mayer, Brown & Platt, counsel to the Agent,
substantially in the form of Exhibit J hereto.
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SECTION 5.1.7. Closing Date Certificate. The Agent shall have
received a Closing Date Certificate, dated the date of the initial Borrowing,
and duly executed and completed by the Borrower.
SECTION 5.1.8. Release Letter. The Agent shall have received a copy
of a letter from Wells Fargo to the Borrower, substantially in the form of
Exhibit M hereto, duly executed by Wells Fargo.
SECTION 5.1.9. Closing Fees, Expenses.
(a) The Borrower shall have paid to the Agent, for the account of
each Lender, all of the fees then due and owing under the Fee Letter.
(b) The Agent shall have received for its own account, or for the
account of each Lender, as the case may be, all fees, costs and expenses due
and payable pursuant to Section 3.3 and 10.3, if then invoiced.
SECTION 5.1.10. Compliance Certificate. The Agent shall have received
a Compliance Certificate, duly executed and completed by the Borrower,
calculated as of March 31, 1994.
SECTION 5.2. All Borrowings. The obligation of each Lender to fund
any Loan on the occasion of any Borrowing (including the initial Borrowing)
shall be subject to the satisfaction of each of the conditions precedent set
forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to any Borrowing (but, if any Default of the
nature referred to in Section 8.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds thereof) the following statements shall be true and
correct:
(a) the representations and warranties set forth in
Article VI (excluding, however, those contained in Section 6.7) shall
be true and correct with the same effect as if then made (unless
stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date);
(b) except as disclosed by the Borrower to the Agent and
the Lenders pursuant to Section 6.7,
(i) no labor controversy, litigation, arbitration
or governmental investigation or proceeding shall be pending
or, to the knowledge of the Borrower,
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threatened against the Borrower, any of its Subsidiaries or
the General Partner which if adversely determined is
reasonably likely to materially adversely affect the
Borrower's consolidated business, operations, assets,
revenues, properties or prospects (with respect to the
Borrower's ability to pay or repay the Obligations) or which
purports to affect the legality, validity or enforceability of
this Agreement, the Notes or any other Loan Document; and
(ii) no development shall have occurred in any
labor controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section 6.7
which if adversely determined is reasonably likely to
materially adversely affect the Borrower's consolidated
business, operations, assets, revenues, properties or
prospects (with respect to the Borrower's ability to pay or
repay the Obligations); and
(c) no Default shall have then occurred and be
continuing, and neither the Borrower, nor any of its Subsidiaries are
in material violation of any law or governmental regulation or court
order or decree.
SECTION 5.2.2. Borrowing Request. The Agent shall have received a
Borrowing Request for such Borrowing. Each of the delivery of a Borrowing
Request and the acceptance by the Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such Borrowing (both immediately before and after giving effect to such
Borrowing and the application of the proceeds thereof) the statements made in
Section 5.2.1 are true and correct.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries shall be satisfactory in form and substance to the Agent and its
counsel; the Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the Agent or its counsel may
reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this
Agreement and to make Loans hereunder, each of the Borrower and the General
Partner represents and warrants to the Agent and each Lender as set forth in
this Article VI.
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SECTION 6.1. Organization, etc. (a) The Borrower is a limited
partnership duly organized and validly existing under the laws of the State of
Colorado and is duly qualified to do business in the States of Colorado,
Illinois, Maryland, Minnesota and New Jersey, the only other jurisdiction(s) in
which the conduct or contemplated conduct of its business or the ownership or
lease of its assets requires such qualification. A Trade Name Certificate is on
file in the office of the Colorado Department of Revenue, and no other filing,
recording, publishing or other act with an Official Body is necessary or
appropriate in connection with the existence or the business of the Borrower.
(b) Each Subsidiary of the Borrower is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and is duly qualified to do business in each
jurisdiction in which the conduct of its business or the ownership or lease of
its assets would require such qualification.
(c) The General Partner is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado. The
General Partner is duly qualified and in good standing in all jurisdictions in
which the conduct of its business or the ownership or lease of its assets
requires such qualification (except where the failure to do so would not have a
material adverse effect on the business, operations or financial condition of
the General Partner).
(d) Each of the Borrower and the General Partner, and each of the
Borrower's Subsidiaries, has full partnership or corporate power and authority,
respectively, and holds all requisite governmental licenses, permits and other
approvals to enter into and perform its respective Obligations under this
Agreement, the Notes and each other Loan Document to which it is a party and
holds all requisite material governmental licenses, permits and other approvals
to own and hold under lease its property and to conduct its business
substantially as currently conducted by it.
(e) The General Partner is the sole general partner of the
Borrower and owns 100% of the outstanding general partnership interests in the
Borrower, free and clear of all Liens or other encumbrances other than those
interests which represent the right to receive certain distributions from the
Borrower and are pledged to NationsBank of Texas, N.A., as Collateral Agent for
certain secured parties, pursuant to that certain Security Agreement, dated as
of December 8, 1992, among the General Partner and NationsBank of Texas, N.A.
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SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by and on behalf of the Borrower of this Agreement,
the Notes and each other Loan Document are within the Borrower's and the
General Partner's powers, have been duly authorized by all necessary action,
and do not
(i) contravene the Borrower's or the General Partner's
Organic Documents;
(ii) contravene (x} any law or governmental regulation or
court decree or order binding on or affecting the Borrower or the
General Partner or (y) any contractual restriction binding on or
affecting the General Partner or the Borrower which contravention is
reasonably likely to have a material adverse effect on the Borrower's
consolidated business, operations, assets, revenues, properties or
prospects (with respect to the Borrower's ability to pay or repay the
Obligations); or
(iii) result in, or require the creation or imposition of,
any Lien on any of the Borrower's or the General Partner's properties
(other than the Lien of the Security Agreement).
SECTION 6.3. Government Approval, Regulation, etc. Other than as set
forth in Item 6.3 of the Disclosure Schedule or those which have been obtained
and are in full force and effect, no authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution, delivery or performance
by the General Partner of the Subordination Agreement or by the Borrower of
this Agreement, the Notes or any other Loan Document. Neither the Borrower nor
any of its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940 as amended, or a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed by the Borrower will, on the due
execution and delivery thereof, constitute, the legal, valid and binding
obligations of the Borrower, enforceable in accordance with their respective
terms. Each of the Partnership Agreement and the Subordination Agreement
constitutes the legal, valid and binding obligation of the General Partner,
enforceable in accordance with its terms.
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SECTION 6.5. Financial Information. The balance sheet of the Borrower
as at March 31, 1994, and the related statements of operations, cash flow and
partners' capital, copies of which have been furnished to the Agent and each
Lender, have been prepared in accordance with GAAP consistently applied, and
present fairly the financial condition of the Borrower as at the dates thereof
and the results of its operations for the periods then ended.
SECTION 6.6. No Material Adverse Change. Since the date of the
financial statements described in Section 6.5, there has been no material
adverse change in the Borrower's business, assets, properties, revenue,
financial condition, operations or (with respect to the Borrower's ability to
pay or repay the Obligations) prospects.
SECTION 6.7. Litigation, Labor Controversies. etc. Except as disclosed
in Item 6.7 ("Litigation") of the Disclosure Schedule, there is no pending or,
to the knowledge of the Borrower, threatened litigation, action, proceeding, or
labor controversy affecting the Borrower, any of its Subsidiaries or the
General Partner, which if adversely determined is reasonably likely to
materially adversely affect the business, assets, properties, revenue,
financial condition, operations or prospects (with respect to the Borrower's
ability to pay or repay the Obligations) of the Borrower, or any Subsidiary, or
which purports to affect the legality, validity or enforceability of this
Agreement, the Notes or any other Loan Document.
SECTION 6.8. Subsidiaries. The Borrower has no Subsidiaries except
those Subsidiaries, if any, which the Agent and the Required Lenders have
permitted the Borrower to acquire after the Effective Date.
SECTION 6.9. Ownership Of Properties. The Borrower and each of its
Subsidiaries owns good and marketable title to all of its properties and
assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights),
free and clear of all Liens, charges or claims (including infringement claims
with respect to patents, trademarks, copyrights and the like) except as
permitted pursuant to Section 7.2.3.
SECTION 6.10. Taxes. Each of the Borrower and its Subsidiaries has
filed all tax returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be owing, except
any such taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books.
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SECTION 6.11. Pension and Welfare Plans. Neither the Borrower, nor
any Subsidiary of the Borrower, nor any member of a Controlled Group has
established or maintained, has ever made or been obligated to make
contributions to, or is obligated to make contributions to, any Plan or
multiemployer Plan.
SECTION 6.12. Environmental Warranties. To the best of the Borrower's
knowledge, all facilities and property (including underlying groundwater) owned
or leased by the Borrower and its Subsidiaries, have been, and continue to be,
owned or leased by the Borrower and its Subsidiaries, in material compliance
with all Environmental Laws.
SECTION 6.13. Regulations G, U and X. The Borrower is not engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Loans will be used for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation G, U or X.
Terms for which meanings are provided in F.R.S. Board Regulation G, U or X or
any regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.
SECTION 6.14. Accuracy of Information.
(a) All factual information heretofore or contemporaneously
furnished by or on behalf of the Borrower or the General Partner in writing to
the Agent or any Lender for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all other such factual information
hereafter furnished by or on behalf of the Borrower or the General Partner in
writing to the Agent or any Lender will be, true and accurate in every material
respect on the date as of which such information is dated or certified and as
of the date of execution and delivery of this Agreement by the Agent and such
Lender, and such information is not, or shall not be, as the case may be,
incomplete by omitting to state any material fact necessary to make such
information not misleading.
(b) All of the information set forth in the Disclosure Schedule
and the Cable Schedule is true and accurate in every material respect as of the
Effective Date.
SECTION 6.15. Cable Authorizations. The Cable Schedule accurately and
completely lists all CATV and SMATV systems currently owned by the Borrower,
and all Franchises issued or granted to the Borrower (such Franchises, together
with all renewals and extensions thereof, are referred to collectively as the
"Cable Franchises"). The Cable Franchises constitute the only material
Franchises required or advisable in connection with the conduct by the Borrower
of its business as presently conducted. All of the Cable Franchises are duly
issued in the
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name of the Borrower (or are issued in some other name but have been duly and
validly assigned to the Borrower), the Borrower has full power and authority to
operate thereunder, and each such Cable Franchise will expire on the date set
forth for such Cable Franchise in the Cable Schedule. All assets of the Cable
Systems and all Cable Franchises, contracts, agreements and other things
necessary or advisable in connection with the present or proposed operation of
the Cable Systems shall at all times be owned (or leased on terms and
conditions permitted hereunder) and held by the Borrower. The Cable Schedule
accurately and completely lists all agreements, if any, which are presently in
effect with public utilities for the use of public utility facilities in
connection with the Cable Systems. Each of the Borrower and the General Partner
(with respect to the business and operations of the Borrower) has the right and
authority (contractual, by law or otherwise) to provide pay television and
related services to subscribers. The Cable Schedule accurately and completely
lists and (i) all deeds, leases, leaseholds and other interests in real
property held by the Borrower, together with accurate legal descriptions of all
such real property owned or leased by the Borrower, and (ii) all Pole
Agreements and wire line crossing agreements to which the Borrower is a party.
Except for the Franchise held by People's Choice TV covering the Village of
Rantoul, Illinois (the "Competing Rantoul Franchise"), other than the Cable
Franchises, to the best knowledge of the General Partner and the Borrower, no
Franchise has been granted with respect to the territory covered by the Cable
Franchises, nor, to the best of the Borrower's knowledge, is any application
for any such Franchise pending. As of the date of this Agreement, there is no
overbuilding of any territory covered by the Cable Systems, except for the
Village of Rantoul, Illinois which is covered by both a Cable Franchise and the
Competing Rantoul Franchise.
SECTION 6.16. FCC Registration and Regulatory Compliance. With respect
to each of the Cable Systems, there is a registration statement on file with
the FCC which fully complies with all applicable requirements of 47 C.F.R. Part
76, Subpart B. The Borrower is the holder of each of the FCC Licenses listed
on the Cable Schedule, each of which has the effective and expiration dates
noted on the Cable Schedule, and is, to the best of the Borrower's and General
Partners' knowledge, lawfully issued (and continues to exist) pursuant to the
rules and regulations of the FCC after compliance with all applicable
requirements of law. The Borrower is presently in compliance in all material
respects with all terms and conditions of all FCC Licenses covering the Cable
Systems, all Federal, state and local laws, all rules, regulations and
administrative orders of the FCC (other than with respect to compliance with
regulations promulgated by the FCC regarding rates and codified at 47 C.F.R.
Section Section 76.922-76.924, with which, to the Borrower's knowledge, it is
in compliance in all material respects) and all state and local
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commissions or authorities which are applicable to the Borrower or the
operation of the Cable Systems (including, without limitation, those regarding
signal leakage), and the foregoing permit any contemplated and continued
operation of the Cable Systems without the obtaining of any further approvals,
covenants, modifications or the taking of any other action of any kind or
nature whatsoever. The Borrower has received no notice that any fact or any
past, present or threatened occurrence would preclude or impair its ability to
obtain any FCC License or other Franchise necessary for the operation or
proposed expansion of the Cable Systems.
SECTION 6.17. Franchises, Copyrights and Licenses. The Borrower
possesses, or has the right to use, all FCC Licenses and all other Franchises,
all copyrights, all licenses (including all cable television or broadcast
licenses), all rights under agreements with public utilities and microwave
transmission companies, Pole Agreements, and all utility easements and other
rights, the absence of which is reasonably likely to have a material adverse
effect on the business, properties, operations or conditions, financial or
otherwise, or prospects (with respect to the Borrower's ability to pay or repay
the Obligations) of the Borrower, each of which is in full force and effect and
with which the Borrower is in compliance in all material respects, with no
known conflict with the rights of others which could affect or impair in any
material manner the businesses, properties, operations or condition, financial
or otherwise, or prospects (with respect to the Borrower's ability to pay or
repay the Obligations) of the Borrower. The General Partner or any other
Affiliate of the Borrower providing services to the Borrower, has obtained all
licenses, permits, authorizations and Franchises necessary for the ownership of
its properties used in providing services to the Cable Systems, the conduct of
its businesses in connection with the Cable Systems and any proposed expansions
of the Cable Systems, in all instances in which the failure to have obtained
such licenses, permits, authorizations and Franchises could have a material
adverse impact on the businesses, properties, operations or condition,
financial or otherwise, of the Borrower. To the best of the Borrower's
knowledge, no event has occurred which permits, or after the giving of notice
or the lapse of time, or both, would permit, the revocation or termination of
any Cable Franchise, or any copyright, license, permit, authorization or other
right of the FCC so as to adversely affect in any material manner the
businesses, properties, operations or condition, financial or otherwise, or
prospects (with respect to the Borrower's ability to pay or repay the
Obligations) of the Borrower.
SECTION 6.18. Communications Act Filings. The Borrower has duly and
timely filed all cable television registration statements and other filings
which are required to be filed under
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the Communications Act, and has complied in all other material respects with
the Communications Act (other than with respect to compliance with regulations
promulgated by the FCC regarding rates and codified at 47 C.F.R. Sections
76.922-76.924, with which, to the Borrower's knowledge, it is in compliance in
all material respects), including, without limitation, the rules and
regulations of the FCC relating to the carriage of television signals. The
Borrower has recorded or deposited with and paid to the United States Copyright
Office, the Register of Copyrights and the Copyright Royalty Tribunal, all
notices, statements of account, royalty fees and other documents, instruments
and amounts required under the Copyright Act, and is not liable to any person
for copyright infringement under the Copyright Act.
SECTION 6.19. Partnership Agreement. The Partnership Agreement is in
full force and effect and no default or event which, with the passage of time
or notice or both, would constitute a default has occurred and is continuing
thereunder.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenant. The Borrower agrees with the Agent
and each Lender that, until all Commitments have terminated and all Obligations
have been paid and performed in full, the Borrower will perform the obligations
set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports. Notices, etc. The
Borrower will furnish, or will cause to be furnished, to each Lender and the
Agent copies of the following financial statements, reports, notices and
information:
(a) as soon as available and in any event within 60 days
after the end of each of the first three Fiscal Quarters of each
Fiscal Year of the Borrower, consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such Fiscal Quarter and
consolidated statements of operations or income (as appropriate),
partners' equity or stockholders' equity (as appropriate), and cash
flow of the Borrower and its Subsidiaries for such Fiscal Quarter and
for the period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, certified by the
president, chief financial Authorized Officer or Treasurer of the
General Partner;
(b) as soon as available and in any event within 105 days
after the end of each Fiscal Year of the Borrower, a
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copy of the annual audit report for such Fiscal Year for the Borrower
and its Subsidiaries, including therein consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such Fiscal Year
and consolidated statements of operations or income (as appropriate),
partners' equity or stockholders' equity (as appropriate), and cash
flow of the Borrower and its Subsidiaries for such Fiscal Year, in
each case certified (without any Impermissible Qualification) by an
independent public accounting firm acceptable to the Agent and the
Required Lenders and accompanied by a Compliance Certificate, executed
by the General Partner, showing (in reasonable detail and with
appropriate calculations and computations in all respects satisfactory
to the Agent) compliance with the financial covenants set forth in
Section 7.2.4 and the resulting Applicable Margin);
(c) as soon as available and in any event within 60 days
after the end of each of the first three Fiscal Quarters of each
Fiscal Year, a Compliance Certificate, executed by the General
Partner, showing (in reasonable detail and with appropriate
calculations and computations in all respects satisfactory to the
Agent) compliance with the financial covenants set forth in Section
7.2.4 and the resulting Applicable Margin;
(d) as soon as possible and in any event within three
days after the occurrence of each Default, a statement of the General
Partner, setting forth details of such Default and the action which
the Borrower has taken and proposes to take with respect thereto;
(e) as soon as possible and in any event within three
days after (x) becoming aware of the occurrence of any adverse
development with respect to any litigation, action, proceeding, or
labor controversy described in Section 6.7 or (y) becoming aware of
the commencement of any labor controversy, litigation, action,
proceeding of the type described in Section 6.7, notice thereof and
copies of all documentation relating thereto;
(f) promptly after the sending or filing thereof, copies
of all reports which the Borrower sends to the General Partner, and
all reports and registration statements which the Borrower, any of its
Subsidiaries or the General Partner files with the Securities and
Exchange Commission or any national securities exchange;
(g) as soon as practicable, and in any event within 60
days after the end of each Fiscal Quarter, a subscribers report
setting forth for each Cable System as of the end of
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such Fiscal quarter (i) the number of Basic Subscribers and Pay Units
as of the end of such Fiscal Quarter, (ii) the Basic Subscriber Rate
charged to subscribers during such Fiscal Quarter, (iii) the number of
Homes Passed, the Basic Penetration Rate and Pay to Basic Rate as of
the end of such Fiscal Quarter, (iv) upon request of the Agent or any
Lender, the number of subscribers initiating and terminating Cable
Systems service during such Fiscal Quarter and (v) upon request by the
Agent or any Lender, an aging of the Borrower's accounts receivable as
of the end of such Fiscal Quarter, which report shall also include a
description of any Cable Systems sold during such Fiscal Quarter and
the consideration received therefor.
(h) promptly after the occurrence of (i) any lapse or
other termination of any Franchise issued to the Borrower or any of
its Subsidiaries, which lapse or termination may have a material
adverse effect on the business, operations, financial condition or
prospects (with respect to the Borrower's ability to pay or repay the
Obligations) of the Borrower or any of its Subsidiaries, (ii) any
refusal by any Official Body to renew or extend any such Franchise, or
(iii) any dispute between the Borrower or any of its Subsidiaries and
any Official Body which, if adversely determined, is reasonably likely
to have a material adverse effect on the business, operations,
financial condition or prospects (with respect to the Borrower's
ability to pay or repay the Obligations) of the Borrower or any of its
Subsidiaries, notice thereof;
(i) promptly upon their becoming available to the
Borrower, copies of (i) any periodic or special report filed by the
Borrower or any of its Subsidiaries with the FCC or with any other
Official Body regulating the Cable Systems if (A) such report
indicates any material adverse changes in the business, operations,
financial condition or prospects (with respect to the Borrower's
ability to pay or repay the Obligations) of the Borrower or any of its
Subsidiaries, or (B) a copy thereof is requested by any Lender, and
(ii) any material notice or other material communication from the FCC
or from any other Official Body regulating cable systems which
specifically relates to the operation of the Cable Systems; and
(j) such other information respecting the condition or
operations, financial or otherwise, of the Borrower, any of its
Subsidiaries or the General Partner, as any Lender through the Agent
may from time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. The Borrower will, and will
cause each of its Subsidiaries to, comply in all
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material respects with all applicable laws, rules, regulations and orders, such
compliance to include (without limitation):
(a) the maintenance and preservation of its existence and
qualification as a foreign corporation or foreign limited partnership,
as the case may be;
(b) the maintenance in full force and effect of all
material Cable Franchises, consents, approvals, exemptions and other
actions by, and all registrations, qualifications, designations and
declarations and other filings with, each Official Body necessary or
advisable in connection with the execution, delivery and performance
of this Agreement, the Notes and the other Loan Documents and the
ownership and operation of the Cable Systems; and
(c) the payment, before the same become delinquent, of
all taxes, assessments and governmental charges imposed upon it or
upon its property except to the extent being diligently contested in
good faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on its books.
SECTION 7.1.3. MaintenanCe of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties in good repair, working order and condition (ordinary wear and tear
excepted), and make necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be properly conducted
at all times unless the Borrower determines in good faith that the continued
maintenance of any of its properties is no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
(including business interruption insurance) against such casualties and
contingencies and of such types and in such amounts as is customary in the case
of partnerships or other entities engaged in similar businesses and will, upon
request of the Agent, furnish to each Lender at reasonable intervals (and at
least annually) a certificate of insurance with respect to all insurance
maintained by the Borrower and its Subsidiaries in accordance with this
Section.
SECTION 7.1.5. Books and Records. The Borrower will, and will cause
each of its Subsidiaries to, keep books and records which accurately reflect
all of its business affairs and transactions and permit the Agent and each
Lender or any of their respective representatives, at reasonable times and
intervals and upon reasonable notice, to visit all of its offices, to discuss
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its financial matters with its officers and independent public accountant (and
the Borrower hereby authorizes such independent public accountant to discuss
the Borrower's financial matters with each Lender or its representatives with
or without a representative of the Borrower being present so long as the
Borrower has been given a reasonable opportunity to have a representative
present) and to examine (and, at the expense of the Borrower, photocopy
extracts from) any of its books or other corporate records. The Borrower shall
pay any fees of such independent public accountant incurred in connection with
the Agent's or, during any period that a Default has occurred and is
continuing, any Lender's exercise of its rights pursuant to this Section.
SECTION 7.1.6. Environmental Covenant. The Borrower will, and will
cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties
in material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) immediately notify the Agent and provide copies upon
receipt of all written claims, complaints, notices or inquiries
relating to the condition of its facilities and properties or
compliance with Environmental Laws, and shall timely defend any
actions and proceedings relating to compliance with Environmental
Laws; and
(c) provide such information and certifications which the
Agent may reasonably request from time to time to evidence compliance
with this Section 7.1.6.
SECTION 7.1.7. Copyright Act Filings. The Borrower will timely from
time to time in accordance with applicable law record or deposit with and pay
to the United States Copyright Office, the Register of Copyrights and/or the
Copyright Royalty Tribunal all notices, statements of account, royalty fees and
other documents, instruments and amounts required under the Copyright Act of
the United States.
SECTION 7.1.8. Use of Proceeds. The Borrower shall use the proceeds of
the initial Borrowing first to repay, in full, all amounts outstanding under
the Existing Credit Agreement, and, second, for such general corporate purposes
as the Borrower may determine appropriate (including payments of General
Partner Advances permitted under Section 7.2.8). Thereafter, the Borrower shall
use the proceeds of all additional Borrowings, if
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any, for such general corporate purposes as the Borrower may determine
appropriate. No proceeds of any Borrowing will be used acquire any "margin
stock", as defined in F.R.S. Board Regulation U.
SECTION 7.1.9. Post-Closing Mortgages and Releases. Within 30 days
after the Effective Date, the Borrower shall take all steps necessary, at its
own cost and expense, to (i) grant the Agent a first priority mortgage Lien on
the real property specified in the Cable Schedule as the "Office/Headend Site"
for the Turnersville Cable System, (ii) obtain title insurance coverage on such
property in an amount, containing such terms and exceptions and issued by an
insurance company, acceptable to the Agent in the Agent's reasonable discretion
(together with such opinions with respect thereto as the Agent may reasonably
request), and (iii) deliver to the Agent duly executed releases evidencing the
release of any and all mortgages on any real property of the Borrower other
than the mortgage described in clause (i) above.
SECTION 7.1.10. Post-CloSing Delivery of Opinion. If the Borrower is
unable to deliver the opinion required under clause (a) of Section 5.1.6, the
Borrower shall deliver such opinion by no later than the third Business Day
after the Effective Date. Failure to do so shall constitute an Event of
Default.
SECTION 7.2. Negative Covenants. The Borrower agrees with the Agent
and each Lender that, until all Commitments have terminated and all Obligations
have been paid and performed in full, the Borrower will perform the obligations
set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will not, and will
not permit any of its Subsidiaries to, engage in any business activity, except
for the ownership and operation of the Cable Systems and such activities as may
be incidental or related thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Loans and other
Obligations;
(b) until the date of the initial Borrowing, the
Indebtedness identified in Item 7,2.2(b) ("Indebtedness to be Paid")
of the Disclosure Schedule;
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(c) Indebtedness existing as of the Effective Date which
is identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the
Disclosure Schedule;
(d) Indebtedness incurred by the Borrower or any of its
Subsidiaries to a vendor of any assets to finance its acquisition of
such assets which, when added to the aggregate principal amount of
Indebtedness permitted pursuant to clause (f) of this Section 7.2.2,
does not exceed $2,500,000;
(e) unsecured Indebtedness incurred in the ordinary
course of business (including open accounts extended by suppliers on
normal trade terms in connection with purchases of goods and services,
but excluding any Indebtedness incurred through the borrowing of money
or in the form of Contingent Liabilities);
(f) Indebtedness in respect of Capitalized Lease
Liabilities which, when added to the aggregate principal amount of
Indebtedness permitted pursuant to clause (d) of this Section 7.2.2,
does not exceed $2,000,000;
(g) Indebtedness of the Borrower in respect of Hedging
Obligations arising under agreements entered into with the Agent or
any other Lender; and
(h) Indebtedness in the form of General Partner Advances
which are at all times subordinate to the Loans and all other amounts
due to the Lenders hereunder pursuant to the terms of the
Subordination Agreement;
provided, however, that no Indebtedness otherwise permitted by clause (d), (e),
(f) or (g) shall be incurred if, before or after giving effect to the
incurrence thereof, any Default shall have occurred and be continuing.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens securing payment of the Obligations, granted
pursuant to any Loan Document;
(b) Until the date of the initial Borrowing, Liens
securing payment of the Indebtedness of the type permitted and
described in clause (b) of SectiOn 7.2.2;
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(c) Liens granted prior to the Effective Date to secure
payment of the Indebtedness of the type permitted and described in
clause (c) of Section 7.2.2;
(d) Liens granted to secure payment of the Indebtedness
of the type permitted and described in clause (d) of Section 7.2.2 and
covering only those assets acquired with the proceeds of such
Indebtedness;
(e) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter payable
without penalty or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(f) Liens of carriers, warehousemen, mechanics,
materialmen and landlords incurred in the ordinary course of business
for sums not overdue or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(g) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases and contracts
(other than for borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds; and
(h) judgment Liens in existence less than 30 days after
the entry thereof or with respect to which execution has been stayed
or the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance
companies.
SECTION 7.2.4. Financial Condition. The Borrower will not permit:
(a) Its Leverage Ratio at any time during the periods set
forth below to be greater than the ratio set forth opposite such
periods:
Period Maximum Leverage Ratio
------- ----------------------
Effective Date 3/31/95 5.0:1
4/1/95 3/31/96 4.5:1
4/1/96 3/31/97 4.0:1
4/1/97 and Thereafter 3.5:1.
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Additionally, if the Borrower disposes of either the Turnersville
Cable System or the Naperville Cable System, the Borrower shall not
permit its Leverage Ratio at any time thereafter to be greater than
3.0:1.
(b) Its Interest Coverage Ratio at any time during the
periods set forth below to be less than the ratio set forth opposite
such periods:
Minimum Interest
Period Coverage Ratio
------- --------------
Effective Date - 3/31/96 2.5:1
4/1/96 and Thereafter 3.0:1.
(c) its Debt Service Ratio at any time to be less than
1.50:1.
(d) Its Fixed Charge Coverage Ratio at any time after the
Conversion Date to be less than 1.0 to 1.0.
SECTION 7.2.5. Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except (without duplication):
(a) the Investments existing on the Effective Date and
identified in Item 7.2.5(a) ("Ongoing Investments") of the Disclosure
Schedule;
(b) Investments permitted as Capital Expenditures
pursuant to Section 7.2.7; and
(c) Cash Equivalent Investments;
provided, however, that any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment" may
continue to be held notwithstanding that such Investment if made thereafter
would not comply with such requirements.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
Effective Date:
(a) the Borrower will not, and will not permit any of its
Subsidiaries to, declare, pay or make any dividend or distribution (in
cash, property or obligations) with respect to any partnership
interest of the Borrower or stock of the Subsidiaries or on account of
the purchase, redemption, retirement or acquisition of any partnership
interest of the Borrower or stock of the Subsidiaries; and
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(b) the Borrower will not, and will not permit any of its
Subsidiaries to, make any deposit for any of the foregoing purposes.
SECTION 7.2.7. Capital Expenditures, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, make or commit to make Capital
Expenditures in any Fiscal Year in an aggregate amount in excess of
$10,000,000.
SECTION 7.2.8. General Partner Advances. The Borrower will not, and
will not permit any of its Subsidiaries to, pay any amounts to, or on behalf
of, the General Partner or any limited partner of the Borrower with respect to
(a) Management Fees if the aggregate amount of Management
Fees paid during any period prior to June 30, 1998 would exceed five
percent (5%) of the Borrower's consolidated revenues for such period,
or
(b) Management Fees and Allocated Overhead if the
aggregate amount of Management Fees and Allocated Overhead paid during
any period beginning on and continuing after June 30, 1998 would
exceed two and one-half percent (2.5%) of the Borrower's consolidated
revenue for such period, or
(c) Management Fees, Allocated Overhead or General
Partner Advances if either before or after giving effect to such
payments, a Default shall have occurred and be continuing, or if such
payments would violate the terms of the Subordination Agreement.
SECTION 7.2.9. Consolidation, Merger. etc. The Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other corporation, or purchase or otherwise
acquire all or substantially all of the assets of any Person (or of any
division thereof) except
(a) any such Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the Borrower or any
other Subsidiary, and the assets or stock of any Subsidiary may be
purchased or otherwise acquired by the Borrower or any other
Subsidiary; and
(b) so long as no Default has occurred and is continuing
or would occur after giving effect thereto, the Borrower or any of its
Subsidiaries may purchase all or substantially all of the assets of
any Person, or acquire such Person by merger, provided that such
purchase or acquisition (i) is not a Material Acquisition, and (ii)
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involves a Person or assets of a Person engaged in the CATV or SMATV business.
SECTION 7.2.10. Asset Dispositions, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, transfer, lease, contribute
or otherwise convey, or grant options, warrants or other rights with respect
to, all or any portion of its assets (including accounts receivable and capital
stock of any Subsidiaries) to any Person, unless
(a) the resulting transaction is not a Material
Disposition;
(b) the resulting transaction consists of a sale of the
Turnersville Cable System or the Naperville Cable System and, after
giving effect to such transaction (and, if necessary, to the repayment
of Loans with the proceeds thereof), the Borrower's Leverage Ratio in
effect after such disposition is less than 3.0:1; or
(c) the resulting transaction consists of a sale of a
Cable System other than the Turnersville Cable System or the
Naperville Cable System and, after giving effect to such transaction
(and, if necessary, to the repayment of Loans with the proceeds
thereof), the Borrower's Leverage Ratio in effect after such
disposition is no greater than the Borrower's Leverage Ratio
immediately prior to such transaction-
Furthermore, the Borrower may not engage in any transaction permitted pursuant
to clauses (a) - (c) if, after giving effect thereto, either (i) the Borrower
would no longer own free and clear of all Liens, except those permitted under
clause (a) of Section 7.2.3, either the Turnersville Cable System or the
Naperville Cable System, or (ii) the number of Basic Subscribers would
decrease by 35% or more from the number of Basic Subscribers immediately prior
to such transaction.
SECTION 7.2.11. Modification of Certain Agreements. The Borrower
will not consent to any amendment, supplement or other modification of any of
the terms or provisions contained in, or applicable to, its Partnership
Agreement (except as to the matters set forth in Section 6.1 of the Partnership
Agreement) or the Subordination Agreement.
SECTION 7.2.12. Transactions with Affiliates. Except for Management
Fees, Allocated Overhead and General Partner Advances, payable in accordance
with Section 7.2.8 and the terms of the Subordination Agreement, the Borrower
will not, and will not permit any of its Subsidiaries to, enter into, or cause,
suffer or permit to exist any arrangement or contract with any of its
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Affiliates (a) other than as set forth in Section 2.2(n) of the Partnership
Agreement or (b) unless such arrangement or contract is fair and equitable to
the Borrower or such Subsidiary and is an arrangement or contract of the kind
which would be entered into by a prudent Person in the position of the Borrower
or such Subsidiary with a Person which is not one of its Affiliates.
SECTION 7.2.13. Negative Pledges, Restrictive Agreements, etc. The
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement (excluding this Agreement, any other Loan Document and any
agreement governing any Indebtedness permitted by clause (d) of Section 7.2.2
as to the assets financed with the proceeds of such Indebtedness) prohibiting
(a) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired, or the ability of the Borrower to amend or otherwise modify
this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments,
directly or indirectly, to the Borrower by way of dividends, advances,
repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower.
SECTION 7.2.14. No Creation of Pension Plans. The Borrower will
not, and will not permit any of its Subsidiaries to, establish or maintain or
become obligated to make contributions to any Plan or multiemployer Plan.
SECTION 7.2.15. Acquisition of Real Property Interests. At any time
on or after the Effective Date, the Borrower will not, and will not permit its
Subsidiaries to, acquire (i) any fee or leasehold interest in real property
with a fair market value in excess of $1,000,000, or (ii) any fee or leasehold
interest in real property if the fair market value of such interest when added
together with the fair market value of all other such interests, would exceed
$3,500,000; unless prior to or contemporaneous with such acquisition, the
Borrower, at is own cost and expense, takes all steps necessary to grant the
Agent, a first priority mortgage Lien thereon and, in the case of real
property, the Borrower also obtains title insurance coverage in an amount,
containing such terms and exceptions and issued by an insurance company,
acceptable to the Agent in the Agent's reasonable discretion, with respect to
such property and such
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legal opinions with respect thereto as the Agent may reasonably request.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. LiSting of Events of Default. Each of the following
events or occurrences described in this Section 8.1 shall constitute an "Event
of Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall
default in the payment or prepayment when due of any principal of any Loan, or
the Borrower shall default (and such default shall continue unremedied for a
period of three Business Days or more) in the payment when due of any interest
on any Loan, or the Borrower shall default (and such default shall continue
unremedied for a period of five days or more) in the payment when due of any
commitment fee or any other Obligation.
SECTION 8.1.2. Branch Of Warranty. Any representation or warranty
of the Borrower made or deemed to be made hereunder or in any other Loan
Document or any other writing or certificate furnished by or on behalf of the
Borrower to the Agent or any Lender for the purposes of or in connection with
this Agreement or any such other Loan Document (including any certificates
delivered pursuant to Article V) or any representation or warranty made by the
General Partner in the Subordination Agreement is or shall be incorrect when
made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance and observance of any of its
obligations under Section 7.1.2(a) (with respect only to maintenance and
preservation of partnership existence) or Section 7.2 or the Borrower or the
General Partner shall default in the due performance and observance of their
respective obligations under the Subordination Agreement.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations.
The Borrower shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document, and such default
shall continue unremedied for a period of 30 days after notice thereof shall
have been given to the Borrower by the Agent or any Lender.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1)
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having, individually or in the aggregate, a principal amount in excess of
$250,000 of the Borrower or any of its Subsidiaries, or a default shall occur
in the performance or observance of any obligation or condition with respect to
such Indebtedness if the effect of such default is to accelerate the maturity
of any such Indebtedness or such default shall continue unremedied for any
applicable period of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $100,000 (unless fully covered by insurance (subject to a
reasonable and customary deductible) where liability has been admitted by the
applicable insurance carrier) shall be rendered against the Borrower or any of
its Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION 8.1.7. Change in Control. Any Change in Control shall occur.
SECTION 8.1.8. Bankruptcy, Insolvency, etc. The Borrower, any of
its Subsidiaries or the General Partner shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Borrower, any
of its Subsidiaries or the General Partner or any property of any thereof,
or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for the Borrower, any of its Subsidiaries
or the General Partner or for a substantial part of the property of any
thereof, and such trustee, receiver, sequestrator or other custodian shall
not be discharged within 60 days, provided that the Borrower, each
Subsidiary and the General Partner hereby expressly authorizes the Agent
and each Lender to appear in
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any court conducting any relevant proceeding during such 60-day period
to preserve, protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower, any
of its Subsidiaries or the General Partner, and, if any such case or
proceeding is not commenced by the Borrower, such Subsidiary or the
General Partner, such case or proceeding shall be consented to or
acquiesced in by the Borrower, such Subsidiary or the General Partner
or shall result in the entry of an order for relief or shall remain
for 60 days undismissed, provided that the Borrower, each Subsidiary
and the General Partner hereby expressly authorizes the Agent and each
Lender to appear in any court conducting any such case or proceeding
during such 60-day period to preserve, protect and defend their rights
under the Loan Documents; or
(e) take any partnership or corporate action authorizing,
or in furtherance of, any of the foregoing.
SECTION 8.1.9. Partnership Agreement. There shall occur any default
under the Partnership Agreement.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document
(or, in the case of the General Partner, the Subordination Agreement), or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of the Borrower (or, in the case of the
Subordination Agreement, the General Partner); the Borrower, the General
Partner or any other party shall, directly or indirectly, contest in any manner
such effectiveness, validity, binding nature or enforceability; or any Lien
securing any Obligation shall, in whole or in part, cease to be a perfected
first priority Lien, subject only to those exceptions expressly permitted by
such Loan Document.
SECTION 8.1.11. Failure to Obtain or Cessation of Authorization. etc.
Any consent, approval, exemption, registration, qualification, designation,
declaration, filing, or other action or undertaking now or hereafter obtained
in connection with this Agreement (other than matters referred to in Section
8.1.12 hereof), the Notes or the other Loan Documents or any such action or
undertaking now or hereafter necessary or advisable to make this Agreement, the
Notes or the other Loan Documents legal, valid, enforceable and admissible in
evidence is not obtained or shall have ceased to be in full force and effect
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or shall have been modified or amended or shall have been held to be illegal or
invalid and the Borrower shall have been unsuccessful in curing such illegality
or invalidity within a reasonable time and the Required Lenders shall have
determined in good faith (which determination shall be conclusive) that such
event or occurrence may have a material adverse effect on the Agent's or the
Lenders' rights under this Agreement, any Note or any other Loan Document.
SECTION 8.1.12. Cancellation of Franchise Agreement. Any Franchise
Agreement(s) pursuant to which the Borrower serves more than 5% of the Basic
Subscribers or any other license, permit, lease, easement, conduit occupancy
right, Pole Agreement, certificate, consent, approval, authorization or
agreement (collectively, for purposes of this Section 8.1.12, "Material
Agreement") granted by the FCC or by any other Official Body with jurisdiction
over the Cable Systems or by any public utility or third party lessor, whether
presently existing or hereafter granted to or obtained by the Borrower, the
cancellation or termination of which would have a material adverse effect on
the Borrower or the continued operation of the Cable Systems viewed as a whole,
shall expire without renewal or shall be suspended or revoked, and shall not be
replaced, or the Borrower shall become subject to any injunction or other order
with respect to, such Franchise Agreement or Material Agreement that materially
adversely affects or which is reasonably likely to materially adversely affect
(both in the sole reasonable judgment of the Required Lenders) the business,
operations, financial condition or prospects (with respect to the Borrower's
ability to pay or repay the Obligations) of the Borrower.
SECTION 8.2. Action if Bankruptcy. If any Event of Default
described in clauses (a) through (d) of Section 8.1.8 shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations shall automatically be and become immediately due and payable,
without notice or demand.
SECTION 8.3. Action if Other Event Of Default. If any Event of
Default (other than any Event of Default described in clauses (a) through (d)
of Section 8.1.8) shall occur for any reason, whether voluntary or involuntary,
and be continuing, the Agent, upon the direction of the Required Lenders, shall
by notice to the Borrower declare all or any portion of the outstanding
principal amount of the Loans and other Obligations to be due and payable
and/or the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which
shall be so declared due and payable shall be and become immediately due and
payable,
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without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate.
ARTICLE IX
THE AGENT
SECTION 9.1. Actions. Each Lender hereby appoints Scotiabank as
its Agent under and for purposes of this Agreement, the Notes and each other
Loan Document. Each Lender authorizes the Agent to act on behalf of such
Lender under this Agreement, the Notes and each other Loan Document and, in the
absence of other written instructions from the Required Lenders received from
time to time by the Agent (with respect to which the Agent agrees that it will
comply, except as otherwise provided in this Section or as otherwise advised by
counsel), to exercise such powers hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof, together
with such powers as may be reasonably incidental thereto. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
the Agent, pro rata according to such Lender's Percentage, from and against any
and all liabilities, obligations, losses, damages, claims, costs or expenses of
any kind or nature whatsoever which may at any time be imposed on, incurred by,
or asserted against, the Agent in any way relating to or arising out of this
Agreement, the Notes and any other Loan Document, including reasonable
attorneys' fees, and as to which the Agent is not reimbursed by the Borrower;
provided, however, that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, claims, costs or
expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from the Agent's gross negligence or wilful
misconduct. The Agent shall not be required to take any action hereunder, under
the Notes or under any other Loan Document, or to prosecute or defend any suit
in respect of this Agreement, the Notes or any other Loan Document, unless it
is indemnified hereunder to its satisfaction. If any indemnity in favor of
the Agent shall be or become, in the Agent's determination, inadequate, the
Agent may call for additional indemnification from the Lenders and cease to do
the acts indemnified against hereunder until such additional indemnity is
given.
SECTION 9.2. Funding Reliance, etc. Unless the Agent shall have
been notified by telephone, confirmed in writing, by any Lender by 5:00 p.m.,
New York City time, on the day prior to a Borrowing that such Lender will not
make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Agent may assume that such Lender
has made such amount available to the Agent and, in reliance upon
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such assumption, may make available to the Borrower a corresponding amount.
If and to the extent that such Lender shall not have made such amount available
to the Agent, such Lender and the Borrower severally agree to repay the Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date the Agent made such amount available to the Borrower
to the date such amount is repaid to the Agent, at the Federal Funds Rate.
SECTION 9.3. Exculpation. Neither the Agent nor any of its
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement or any other
Loan Document, or in connection herewith or therewith, except for its own
wilful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor for
the creation, perfection or priority of any Liens purported to be created by
any of the Loan Documents, or the validity, genuineness, enforceability,
existence, value or sufficiency of any collateral security, nor to make any
inquiry respecting the performance by the Borrower of its obligations hereunder
or under any other Loan Document. Any such inquiry which may be made by the
Agent shall not obligate it to make any further inquiry or to take any action.
The Agent shall be entitled to rely upon advice of counsel concerning legal
matters and upon any notice, consent, certificate, statement or writing which
the Agent believes to be genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Agent may resign as such at any time
upon at least 30 days' prior written notice to the Borrower and all Lenders.
If the Agent at any time shall resign, the Required Lenders may appoint another
Lender as a successor Agent which shall thereupon become the Agent hereunder;
provided, however, that the appointment of any Lender which was not a Lender on
the Effective Date shall be subject to the prior approval of the Borrower,
which approval shall not be unreasonably withheld. If no successor Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Agent's giving notice of
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having combined
capital, surplus and undivided profits of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall be entitled to receive from the retiring Agent such
documents of transfer and assignment as such successor Agent may reasonably
request, and
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shall thereupon succeed to and become vested with all rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation hereunder as the Agent, the provisions of
(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Agent
under this Agreement; and
(b) Section 10.3 and SeCtiOn 10.4 shall continue to inure
to its benefit.
SECTION 9.5. Loans by Scotiabank. Scotiabank shall have the same
rights and powers with respect to (x) the Loans made by it or any of its
Affiliates, and (y) the Notes held by it or any of its Affiliates as any other
Lender and may exercise the same as if it were not the Agent. Scotiabank and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of business with, the Borrower or any Subsidiary or Affiliate of the
Borrower as if Scotiabank were not the Agent hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it
has, independently of the Agent and each other Lender, and based on such
Lender's review of the financial information of the Borrower, this Agreement,
the other Loan Documents (the terms and provisions of which being satisfactory
to such Lender) and such other documents, information and investigations as
such Lender has deemed appropriate, made its own credit decision to extend its
Commitments. Each Lender also acknowledges that it will, independently of the
Agent and each other Lender, and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement or any other Loan
Document.
SECTION 9.7. Copies etc. The Agent shall give prompt notice to
each Lender of each notice or request required or permitted to be given to the
Agent by the Borrower pursuant to the terms of this Agreement (unless
concurrently delivered to the Lenders by the Borrower). The Agent will
distribute to each Lender each document or instrument received for its account
and copies of all other communications received by the Agent from the Borrower
for distribution to the Lenders by the Agent in accordance with the terms of
this Agreement.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing
and consented to by the Borrower and the Required Lenders; provided, however,
that no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section 10.1, change the definition of
"Required Lenders", increase any Commitment Amount or the Percentage
of any Lender, reduce any fees described in Article III, release any
collateral security, except as otherwise specifically provided in any
Loan Document or extend any Commitment Termination Date shall be made
without the consent of each Lender and each holder of a Note;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Loan (or reduce the principal amount of or rate of interest on any
Loan) shall be made without the consent of the holder of that Note
evidencing such Loan; or
(d) affect adversely the interests, rights or obligations
of the Agent of the Agent shall be made without consent of the Agent.
No failure or delay on the part of the Agent, any Lender or the holder of any
Note in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the Borrower in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by the Agent, any Lender or the
holder of any Note under this Agreement or any other Loan Document shall,
except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications
provided to any party hereto under this Agreement
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or any other Loan Document shall be in writing or by Telex or by facsimile and
addressed, delivered or transmitted to such party at its address, Telex or
facsimile number set forth below its signature hereto or, if applicable, set
forth in such Lender's Lender Assignment Agreement or at such other address,
Telex or facsimile number as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any notice, if transmitted by Telex or facsimile,
shall be deemed given when transmitted (answer back confirmed in the case of
Telexes).
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees
to pay on demand all reasonable expenses of the Agent (including the fees and
reasonable out-of-pocket expenses of counsel to the Agent and of local counsel)
in connection with
(a) the negotiation, preparation, execution and delivery
of this Agreement and of each other Loan Document, including schedules
and exhibits, and any amendments, waivers, consents, supplements or
other modifications to this Agreement or any other Loan Document as
may from time to time hereafter be required, whether or not the
transactions contemplated hereby are consummated, and
(b) the filing, recording, refiling or rerecording of the
Security Agreement and any Uniform Commercial Code financing
statements relating thereto and all amendments, supplements and
modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or
refiled or rerecorded by the terms hereof or of the Security
Agreement, and
(c) the preparation and review of the form of any
document or instrument relevant to this Agreement or any other Loan
Document.
The Borrower further agrees to pay, and to save the Agent and the Lenders
harmless from all liability for, any stamp or other taxes which may be payable
in connection with the execution or delivery of this Agreement, the borrowings
hereunder, or the issuance of the Notes or any other Loan Documents. The
Borrower also agrees to reimburse the Agent and each Lender upon demand for all
reasonable out-of-pocket expenses (including reasonable attorneys' fees and
disbursements) incurred by the Agent or such Lender in connection with (x) the
negotiation of any restructuring or "work-out", whether or not consummated, of
any Obligations and (y) the enforcement of any Obligations.
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SECTION 10.4. Indemnification. In consideration of the execution
and delivery of this Agreement by each Lender and the extension of the
Commitments, the Borrower hereby indemnifies, exonerates and holds the Agent
and each Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action
for which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified
LiabilitieS"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance of this Agreement
and any other Loan Document by any of the Indemnified Parties
(including any action brought by or on behalf of the Borrower as the
result of any determination by the Required Lenders pursuant to
Article V not to fund any Borrowing);
(c) any investigation, litigation or proceeding related
to any environmental cleanup, audit, compliance or other matter
relating to the protection of the environment or the Release by the
Borrower or any of its Subsidiaries of any Hazardous Material; or
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases from,
any real property owned or operated by the Borrower or any of its
Subsidiaries of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether caused by,
or within the control of, the Borrower or such Subsidiaries,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or wilful misconduct. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law.
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SECTION 10.5. Survival. The obligations of the Borrower under
Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders
under Section 9.1, shall in each case survive any termination of this
Agreement, the payment in full of all of the Obligations and the termination of
all of the Commitments. The representations and warranties made by the
Borrower and the General Partner in this Agreement and in each other Loan
Document shall survive the execution and delivery of this Agreement and each
such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and
of each other Loan Document are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or such other Loan
Document or any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts. Effectiveness. etc. This
Agreement may be executed by the parties hereto in several counterparts, by
hand or facsimile signatures, each of which shall be deemed to be an original
and all of which, when taken together, shall constitute one and the same
agreement. This Agreement shall become effective when counterparts hereof
executed on behalf of the Borrower, the General Partner and each Lender (or
notice thereof satisfactory to the Agent) shall have been received by the Agent
and notice thereof shall have been given by the Agent to the Borrower, the
General Partner and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT,
THE NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE CHOICE OF LAW PROVISIONS THEREOF. This Agreement, the
Notes and the other Loan Documents constitute the entire understanding among
the parties hereto with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that:
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(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the Agent
and all Lenders; and
(b) the rights of sale, assignment and transfer of the
Lenders are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and NoteS; Participations
in Loans and Notes. Each Lender may assign, or sell participations in, its
Loans and Commitments to one or more other Persons in accordance with this
Section 10.11.
SECTION 10.11.1. Assignments. Any Lender may at any time assign and
delegate to one or more commercial banks or other financial institutions (each
Person to whom such assignment and delegation is to be made, being hereinafter
referred to as an "Assignee Lender"), a percentage of such Lender's total Loans
and Commitments (which assignment and delegation shall be of a constant, and
not a varying, percentage of the assigning Lender's Loans and Commitments),
provided that (i) the aggregate principal amount of Loans and Commitments to be
assigned at any one time is at least equal to $5,000,000, and (ii) after giving
effect to any such assignment, in the case of the Agent, the Agent shall
continue to be the registered holder of an aggregate principal amount of Loans
and Commitments at least equal to $25,000,000 multiplied by a fraction the
numerator of which is equal to $80,000,000 minus the aggregate principal amount
of scheduled repayments of Loans made by the Borrower as of the time of the
assignment and the denominator of which is $80,000,000 and, in the case of a
Lender, such Lender shall continue to be the registered holder of at least
fifty percent (50%) of the aggregate principal amount of Loans and Commitments
originally held by such Lender. Each Assignee Lender must furnish, if
applicable, the withholding tax exemption forms required under Section 4.6.
Additionally, the Borrower and the Agent shall be entitled to continue to deal
solely and directly with such Lender in connection with the interests so
assigned and delegated to an Assignee Lender until
(a) written notice of such assignment and delegation,
together with payment instructions, addresses and related information
with respect to such Assignee Lender, shall have been given to the
Borrower and the Agent by such Lender and such Assignee Lender;
(b) such Assignee Lender shall have executed and
delivered to the Borrower and the Agent a Lender Assignment Agreement,
accepted by the Agent; and
(c) the processing fees described below shall have been
paid.
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From and after the date that the Agent accepts a Lender Assignment Agreement,
(x) the Assignee Lender thereunder shall be deemed automatically to have become
a party hereto and to the extent that rights and obligations hereunder have
been assigned and delegated to such Assignee Lender in connection with such
Lender Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and under the other Loan Documents, and (y) the assigning Lender, to
the extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement, shall be
released from its obligations hereunder and under the other Loan Documents.
Within five Business Days after its receipt of notice that the Agent has
received an executed Lender Assignment Agreement, the Borrower shall execute
and deliver to the Agent (for delivery to the relevant Assignee Lender) new
Notes evidencing such Assignee Lender's assigned Loans and Commitments and, if
the assigning Lender has retained Loans and Commitments hereunder, replacement
Notes in the principal amount of the Loans and Commitments retained by the
assigning Lender hereunder (such Notes to be in exchange for, but not in
payment of, those Notes then held by the assigning Lender). Each such Note
shall be dated the date of the predecessor Notes. The assigning Lender shall
mark the predecessor Notes "exchanged" and deliver them to the Borrower.
Accrued interest on that part of the predecessor Notes evidenced by the new
Notes, and accrued fees, shall be paid as provided in the Lender Assignment
Agreement. Accrued interest on that part of the predecessor Notes evidenced by
the replacement Notes shall be paid to the assigning Lender. Accrued interest
and accrued fees shall be paid at the same time or times provided in the
predecessor Notes and in this Agreement. The assigning Lender or the Assignee
Lender must also pay a processing fee to the Agent upon delivery of any Lender
Assignment Agreement in the amount of $2,000. Any attempted assignment and
delegation not made in accordance with this Section 10.11.1 shall be null and
void. Nothing in this Section 10.11.1 shall prevent or prohibit any Lender
from pledging its rights (but not its obligations to make Loans) under this
Agreement and/or its Loans and/or its Notes hereunder to a Federal Reserve
Bank in support of borrowings made by such Lender from such Federal Reserve
Bank.
SECTION 10.11.2. Participations. Any Lender may at any time sell to
one or more commercial banks or other Persons (each of such commercial banks
and other Persons being herein called a "Participant") participating interests
in any of the Loans, Commitments, or other interests of such Lender hereunder;
provided, however, that
(a) no participation contemplated in this Section 10.11.2
shall relieve such Lender from its
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Commitments or its other obligations hereunder or under any other Loan
Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and the Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and each of the other Loan
Documents;
(d) no Participant, unless such Participant is an
Affiliate of such Lender, or is itself a Lender, shall be entitled to
require such Lender to take or refrain from taking any action
hereunder or under any other Loan Document, except that such Lender
may agree with any Participant that such Lender will not, without such
Participant's consent, take any actions of the type described in
clause (b) or (c) of Section 10.1; and
(e) the Borrower shall not be required to pay any amount
under Section 4.6 that is greater than the amount which it would have
been required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude the Agent or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.13. Nonrecourse Obligations. Anything contained in this
Agreement, the Notes or the other Loan Documents to the contrary
notwithstanding, in any action or proceeding brought on this Agreement, the
Notes, the other Loan Documents or the Indebtedness evidenced by the Notes, no
deficiency judgment shall be enforced against the separate assets of the
General Partner (other than distributions to the General Partner made in
violation of Section 7.2.6 or 7.2.8 hereof), and the liability of the General
Partner for any amounts due under this Agreement, the Notes and the other Loan
Documents shall be limited to the interest of the General Partner in the
collateral described in the Loan Documents, its interest in any other assets of
the Borrower and any distributions made in violation of Section 7.2.6 or 7.2.8.
Subject to the preceding sentence, the Agent may join
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any present or future general partners of the Borrower in their capacities as
general partners, as defendants in any legal action it undertakes to enforce
the Lenders' rights and remedies under this Agreement, the Notes and the other
Loan Documents. Notwithstanding the foregoing, nothing set forth herein shall
be deemed to prohibit the Agent and the Lenders from taking legal action(s) and
enforcing any judgment arising therefrom against a present or future general
partner of the Borrower arising by reason of any fraud or intentional
misconduct of such general partner.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. THE
BORROWER HEREBY AGREES THAT ANY LITIGATION BROUGHT BY THE AGENT OR THE LENDERS
AND BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE
LENDERS, THE GENERAL PARTNER OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED IN
THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY NON-APPEALABLE JUDGEMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE TO THE
BORROWER'S ADDRESS PROVIDED HEREIN. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGEMENT ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY REVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. Waive Of Jury Trial. THE AGENT, THE LENDERS AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
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(WHETHER OPAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS, THE
GENERAL PARTNER OR THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS
A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE
LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
[The rest of this page left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
CABLE TV FUND 14-A, LTD.
By: JONES INTERCABLE, INC.,
as General Partner
By /s/ KEVIN P. COYLE
Name: Kevin P. Coyle
Title: Group Vice President/Finance
Address: c/o Jones Intercable, Inc.
9697 East Mineral Avenue
Englewood, Colorado 80112
Telephone No.: (303) 792-3111
Facsimile No.: (303) 790-7324
Attention: Mr. Kevin P. Coyle
THE BANK OF NOVA SCOTIA, as Agent
By /s/ J. R. PADDLE
Name: J. R. Paddle
Title: Authorized Signatory
Address: One Liberty Plaza
New York, New York 10006
Telephone No.: (212) 225-5079
Facsimile No.: (212) 225-5090
Attention: Mr. J.R. Pottle
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81
PERCENTAGE LENDERS
- ---------- -------
31.25% THE BANK OF NOVA SCOTIA
By /s/ J. R. PADDLE
Name: J. R. Paddle
Title: Authorized Signatory
Domestic
Office: One Liberty Plaza
New York, New York 10006
Facsimile No.: (303) 790-7324
Telex No.: N/A
Attention: Marcia Gilbert
LIBOR
Office: One Liberty Plaza
New York, New York 10006
Facsimile No.: (303) 790-7324
Telex No.: N/A
Attention: Marcia Gilbert
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82
31.25% TORONTO DOMINION (TEXAS) INC.
By /s/ WARREN FINLAY
Name: Warren Finlay
Title: Vice President
Credit
Contact: Robert Stevens
Manager
Communications Finance
31 West 52nd Street
New York, New York 10019-6101
Tel.: (212) 468-0727
Fax.: (212) 262-1928
Domestic
Office: 909 Fannin Street,
17th Floor Houston, Texas 77010
Facsimile No.: (713) 951-9921
Telex No.: N/A
Attention: Jano Mott
Manager, Credit Administration
Tel.: (713) 653-8244
LIBOR
Office: 909 Fannin Street,
17th Floor Houston, Texas 77010
Facsimile No.: (713) 951-9921
Telex No.: N/A
Attention: Jano Mort
Manager, Credit Administration
Tel.: (713) 653-8244
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83
18.7 5 % ROYAL BANK OF CANADA
GRAND CAYMAN (NORTH AMERICAN NO. 1)
BRANCH
By /s/ ALEXANDRA PYRNOS
Name: Alexandra Pyrnos
Title: Manager, Media
Credit
Contact: Alexandra Pyrros
Media/Telecomunications
1 Financial Square-24th FLoor
New York, New York 10005-3531
Tel.: (212) 428-6552
Fax: (212) 428-6460
Domestic
Office: Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Facsimile No.: (718) 522-6292
Telex No.: N/A
Attention: Beverly Hanna
Loan Administration
LIBOR
Office: Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Facsimile No.: (718) 522-6292
Telex No.: N/A
Attention: Beverly Hanna
Loan Administration
-77-
84
18.75% SHAWMUT BANK CONNECTICUT, N.A.
By /s/ WENDY E. KLEPPER
Name: Wendy E. Klepper
Title: Specialized Lending Officer
By /s/ ROBERT F. WEST
Name: Robert F. West
Title: Director
Credit
Contact: Wendy E. Klepper
777 Main Street - MSN 397
Hartford, Connecticut 06115
Tel.: (203) 986-1128
Fax.: (203) 986-5367
Domestic
Office: 777 Main Street - MSN 397
Hartford, Connecticut 06115
Facsimile No.: (203) 986-5367
Telex No.: N/A
Attention: Karen L. Neipp
LIBOR
Office: 777 Main Street - MSN 397
Hartford, Connecticut 06115
Facsimile No.: (203) 986-5367
Telex No.: N/A
Attention: Karen L. Neipp
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