1
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Agreement") is made this 30th day of September, 1994, by and among JONES CABLE
INCOME FUND 1-B/C VENTURE, a Colorado general partnership (the "Company");
CORESTATES BANK, N.A.(1), a national banking association with offices at 1500
Market Street, Philadelphia, PA 19101 ("CoreStates" and in its capacity as
agent for the Banks, "Agent"); FIRST NATIONAL BANK OF MARYLAND, a national
banking association with offices at 25 South Charles Street, Baltimore, MD
21201 ("First Maryland"); DRESDNER BANK AG, a bank organized under the laws of
Germany acting through its branch office at 75 Wall Street, New York, NY
10005-2889 ("Dresdner"); and CONTINENTAL BANK, a Pennsylvania banking
corporation with offices at 1500 Market Street, Philadelphia, PA 19102
("Continental") (CoreStates, First Maryland, Dresdner and Continental each
individually a "Bank" and collectively the "Banks").
W I T N E S S E T H:
WHEREAS, the Company is a Colorado joint venture general
partnership in which Jones Cable Income Fund 1-B, Ltd. and Jones Cable Income
Fund 1-C, Ltd., each a Colorado limited partnership (the "Partnerships"), are
the sole partners, and Jones Intercable, Inc., a Colorado corporation ("JII"),
is the sole general partner of each of the Partnerships; and
WHEREAS, the Company, Agent and Banks are parties to that
certain Revolving Credit Agreement dated September 29, 1988, as amended by
Amendment No. 1 to Loan Agreement dated November 12, 1990 ("Amendment No. 1"),
Amendment No. 2 to Revolving Credit Agreement and Amendment No. 2 to Security
Agreement dated May 29, 1992 ("Amendment No. 2"), Amendment No. 3 to Revolving
Credit Agreement and Amendment No. 1 to Intercreditor Agreement dated July 9,
1992 ("Amendment No. 3"), Amendment No. 4 to Revolving Credit Agreement dated
May 13, 1993 and accepted and agreed to on May 17, 1993 ("Amendment No. 4"),
Amendment No. 5 to Revolving Credit Agreement dated September 30, 1993
("Amendment No. 5") and Amendment No. 6 to Revolving Credit Agreement dated May
31, 1994 ("Amendment No. 6") (as amended prior to the date hereof, the
"Existing Credit Agreement"); and
WHEREAS, the Company, CoreStates, First Maryland, Dresdner and
Continental have agreed, pursuant to Paragraph 25 of
____________________
(1) CoreStates Bank, N.A. also conducts business as Philadelphia National
Bank, as CoreStates First Pennsylvania Bank and as CoreStates Hamilton Bank.
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Amendment No. 6 to the Existing Agreement, to restate the Existing Agreement in
a single document with such modifications as such parties shall approve; and
WHEREAS, the amendment and restatement of the Existing Credit
Agreement hereunder, and the amendment and restatement of related documents in
connection herewith, are not intended by the parties to constitute a novation,
discharge or satisfaction of the indebtedness of the Company under the Existing
Credit Agreement or any collateral security therefor, all of which indebtedness
and collateral security shall remain outstanding under this Agreement and
documents executed in connection herewith.
NOW, THEREFORE, in consideration of the premises and the
agreements herein set forth and intending to be legally bound hereby, the
parties hereby amend and restate the Existing Credit Agreement in its entirety
as follows:
ARTICLE I
LOANS AND NOTE
1.1. Revolvinq Credit Facility.
(a) Loans. Subject to the requirements of Article
III hereof, from time to time prior to the earlier of (i) June 30, 1997 or (ii)
the termination in full of the Commitments (in either case the "Termination
Date"), the Company may obtain Loans from the Banks, on a pro rata basis, up to
the amount of such Bank's outstanding Commitment as set forth in subsection (b)
below, repay such Loans and reborrow hereunder. Each Loan from each Bank shall
be in a minimum amount of One Hundred Thousand Dollars ($100,000).
(b) Banks' Several Commitments. The amount of
each Bank's several Commitment is set forth next to its name below:
Banks Commitment Amount
----- -----------------
CoreStates $15,000,000
First Maryland $10,000,000
Dresdner $10,000,000
Continental $10,000,000
===========
TOTAL $45,000,000
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(c) Notes.
(i) All Loans are, and shall continue to
be, evidenced by the Company's Fourth Amended and Restated Revolving Credit
Promissory Note (Limited Recourse) in favor of CoreStates, the Company's
Revolving Credit Promissory Note (Limited Recourse) in favor of First Maryland,
the Company's Revolving Credit Promissory Note (Limited Recourse) in favor of
Dresdner and the Company's Revolving Credit Promissory Note (Limited Recourse)
in favor of Continental, each dated May 31, 1994 and issued in connection with
Amendment No. 6 (individually a "Note", and collectively the "Notes").
(ii) The Company's indebtedness under the
Existing Credit Agreement was originally evidenced by the notes dated September
29, 1988 issued in favor of CoreStates and First Wisconsin National Bank of
Milwaukee ("Firstar") in connection with the Existing Credit Agreement and
thereafter evidenced, without novation, by the notes dated November 12, 1990
issued in favor of CoreStates and Firstar in connection with Amendment No. 1,
the Amended and Restated Revolving Credit Promissory Note (Limited Recourse)
dated May 29, 1992 issued in favor of CoreStates in connection with Amendment
No. 2, the Second Amended and Restated Note and the Amended and Restated Note,
each dated July 9, 1992, issued in favor of CoreStates and Firstar,
respectively, in connection with Amendment No. 3, the Third Amended and
Restated Note and the Second Amended and Restated Note, each dated September
30, 1993, issued in favor of CoreStates and Firstar, respectively, in
connection with Amendment No. 5. The execution and delivery of the Notes in
connection with Amendment No. 6 did not, and the continuation of such Notes
hereunder does not, constitute a novation and did not and does not terminate,
extinguish or discharge the indebtedness of the Company under the Existing
Credit Agreement or the collateral security therefor, all of which indebtedness
and collateral security shall continue as obligations of the Company to the
Banks under and governed by this Agreement, the Security Agreement and the
other Collateral Documents required hereunder.
(iii) Although the Notes are payable in
the full amounts specified above, the Company shall be obligated to pay only
the amounts actually disbursed to or for the account of the Company, together
with interest on the unpaid balance of sums so disbursed which remains
outstanding from time to time, at the rates and on the dates specified in the
Notes and in Section 1.6 hereof, together with the fees and expenses provided
herein. The Company agrees that, if the Banks, in their sole discretion, agree
to extend the Termination Date or increase the Commitment, the Company will
execute and deliver such amended, restated or revised notes or other
instruments and documents, and take such other action, as the Banks may deem
necessary or appropriate in
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connection with any such extension of the Termination Date or increase in the
Commitment.
(d) Maturity. The Company hereby agrees that on
the Termination Date the entire outstanding balance under the Credit Agreement,
principal, interest, fees and expenses, shall be due and payable in full and
the Company hereby agrees to make such payment on such date.
1.2. Use of Proceeds. The Company represents, warrants and
agrees that:
(a) The proceeds of the Loans made to the Company
hereunder have been or shall be used by the Company solely for (i) acquisition
of the cable television (CATV) systems serving the communities originally
listed on Schedule I to the Existing Credit Agreement (the "Acquired Systems"),
pursuant to a Purchase and Sale Agreement dated as of June 17, 1988 (the
"Purchase Agreement") by and between Omega of Michigan Cable Co., Cable TV of
Constantine and White Pigeon Co., Diamond Lake Area Cable TV Co. and Paw Lake
Area Cable TV Co. ("Sellers") and the Company, (ii) capital expenditures for
the improvement of the Acquired Systems and other CATV systems owned by the
Company from time to time (all such CATV systems which are owned or hereafter
acquired by the Company are hereinafter referred to as the "CATV Systems"),
(iii) general working capital requirements of the Company, and (iv) payment to
JII of Management Fees and Home Office Allocations incurred in the ordinary
course of business, to the extent permitted hereunder.
(b) No part of the proceeds of any Loan made
hereunder will be used to "purchase" or "carry" any "margin stock" or to extend
credit to others for the purpose of "purchasing" or "carrying" any "margin
stock" (as such terms are defined in the Regulation U of the Board of Governors
of the Federal Reserve System), and the assets of the Company do not include,
and the Company has no present intention of acquiring, any such security.
1.3. Commitment Fee. The Company shall pay to each Bank a
commitment fee computed at the rate of 1/2% per annum on the difference
existing from time to time between (a) the amount of such Bank's Commitment
(as it may be reduced pursuant to section 1.4), and (b) the outstanding unpaid
principal balance of sums disbursed to the Company by such Bank hereunder. Such
commitment fees shall accrue for the period from the date of this Agreement to
and including the Termination Date, and shall be payable in arrears on the last
day of March, June, September and December of each year, commencing December
31, 1988.
1.4. Termination or Reduction of the Commitment. The
Company shall have the right, upon five Business Days' prior
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written notice to Agent, to ratably reduce in part the Commitments at any time,
provided, however, that each partial reduction of the Commitment of each Bank
shall be in a minimum amount of $100,000, and provided, further, that no
reduction shall reduce the Commitment of any Bank to an amount less than the
aggregate amount of the Loans of such Bank outstanding hereunder at the time.
The entire Commitments of the Banks may be terminated in whole at any time upon
five Business Days' prior written notice to Agent. In addition, the Company
shall be required to reduce the Commitments on a pro rata basis (and the
foregoing $100,000 minimum reduction shall not be applicable thereto), (i) in
connection with any contribution to the Company's capital by the Partnerships,
or any other equity contribution in any form, in an amount equal to the amount
of such contribution, and (ii) in connection with any sale of a CATV System, in
the amount determined pursuant to Section 5.6 hereof.
1.5. Prepayment. Subject to the provisions of
Section 1.8 of this Agreement, the Company may prepay the Loans in whole or in
part at any time without premium or penalty; and the prepayments prior to the
Termination Date shall not reduce the Commitments and may be reborrowed. All
prepayments shall be made and applied pro rata against the Notes then
outstanding. Prepayments of the Note of each Bank shall be not less than
$100,000. The Company shall notify each Bank at least one (1) Business Day in
advance of any such prepayments on a Prime Rate Loan and at least two (2)
Business Days in advance of any such prepayment of a Eurodollar Loan. In
addition to the foregoing, the Company shall be required to make a payment (and
the foregoing $100,000 minimum reduction shall not be applicable thereto), (i)
in connection with any contribution to the Company's capital by the
Partnerships, or any other equity contribution in any form, in an amount equal
to the amount of such contribution, and (ii) in connection with any sale of a
CATV System, in the amount determined pursuant to Section 5.6 hereof.
1.6. Rate of Interest. The Company shall pay
interest on the unpaid principal amount of each Loan from the date of such Loan
until the date the principal balance of such Loan is paid in full at the
following rates:
(a) Prime Rate Loans: During the periods
that such Loan is a Prime Rate Loan, a rate equal to the Base Rate plus the
Applicable Margin per annum, with such interest rate changing when and as the
Base Rate changes and when and as the Applicable Margin changes;
(b) Eurodollar Loans: During each
Interest Period of a Eurodollar Loan, a rate equal to LIBO Rate for the
Interest Period plus the Applicable Margin per annum, with such rate to change
when and as the Applicable Margin changes;
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provided, that, in each case, the unpaid principal balance of a Loan shall bear
interest upon the occurrence and during the continuance of an Event of Default
at a rate equal to two percent (2%) per annum plus the Base Rate, with such
rate changing when and as such Base Rate changes.
1.7. Interest Periods. If and for so long as any Loan
shall be maintained as a Eurodollar Loan, the period commencing on the date of
such Loan and ending on the date of payment in full shall be divided into
"Interest Periods" The initial Interest Period shall be selected by the Company
in the applicable notice required by section 2.1. The Company may select a
subsequent Interest Period for each Loan by notifying the Agent thereof at
least one (1) Business Day (in the case of a Prime Rate Loan) and two (2)
Business Days (in the case of a Eurodollar Loan) prior to the first day of the
new Interest Period. Within 5 Business Days after the commencement of each
Interest Period, the Company shall deliver to the Agent written confirmation of
the interest rate applicable to the Eurodollar Loan to which such Interest
Period relates and the term of such Interest Period. If the Company fails to
select a subsequent Interest Period at the termination of an applicable
Interest Period for any Eurodollar Loan in accordance with the preceding
sentence, such Loan shall be a Prime Rate Loan thereafter, until such time that
an Interest Period is selected. The selection of Interest Periods is subject to
the following provisions:
(a) Each Interest Period for a Eurodollar Loan
shall be for thirty, sixty, ninety, one hundred twenty or one hundred eighty
days or, if reasonably available, such longer period requested by the Company
and made available by the Banks; provided that, anything herein to the contrary
notwithstanding, each Eurodollar Loan of each Bank in an amount of less than
$1,000,000 shall have an Interest Period of one hundred eighty days or less.
(b) If the last day of any Interest Period would
occur on a day other than a Business Day, the last day of that Interest Period
shall occur on the next succeeding Business Day.
(c) No Interest Period for a Loan may extend
beyond the Termination Date.
(d) No more than four separate Interest Periods
may be in effect at any one time.
1.8. Funding Costs. In connection with any prepayment or
repayment of a Eurodollar Loan made on other than the last day of the
applicable Interest Period, whether such prepayment or repayment is voluntary,
mandatory, by demand, acceleration or otherwise, and in connection with any
failure by the Company to fulfill on or before the date specified in a request
for an
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advance of a Eurodollar Loan the applicable conditions as set forth in this
Agreement, the Company shall pay to Banks all funding costs which may arise in
connection with such prepayment or repayment of failure to fund, as calculated
by Agent in accordance with Exhibit A.
1.9. Other Increased Costs. If, as a result of any (a)
change in any law or regulation, or in the interpretation thereof by any court
or administrative or governmental authority, (b) charge generally imposed on
banks which are similarly situated to the Banks which affects any Bank in its
dealings in the London Interbank market, (c) violation by the Company of the
terms of this Agreement, or (d) the adoption of or change in any law, rule,
regulation or guideline affecting capital adequacy or compliance by a Bank (or
any lending office of such Bank) or such Bank's holding company with any
request or directive regarding capital adequacy of any court, administrative or
governmental authority, or central bank:
(i) the basis of taxation of payments to
any Bank of the principal of or interest on any Loan
or any other amounts payable under this Agreement
(other than taxes imposed on the overall net income
of such Bank) is changed;
(ii) any reserve (including, without
limitation, the Certificate Reserve Percentage),
special deposit or similar requirement relating to
any extension of credit or other asset of, or any
deposits with or other liabilities of any Bank which
affects the making or maintaining by such Bank of
Loans hereunder is imposed, modified or deemed
applicable;
(iii) any other condition or cost affecting
this Agreement or the making or maintaining by any
Bank of Loans made hereunder is imposed on such Bank
by law or regulation; or
(iv) the rate of return on any Bank's capital
or on the capital of such Bank's holding company, if
any, as a consequence of this Agreement, the
Commitments or the Loans is or would be reduced
and such Bank reasonably determines that, by reason thereof, the cost to it of
making or maintaining any Loan hereunder is increased, or any amount receivable
by it hereunder in respect to any such Loan is reduced, then the Bank so
affected shall notify the Company thereof within a reasonable time and the
Company shall pay to such Bank, upon written request (which request shall
describe the occurrence and include a calculation of such additional cost or
reduction), such additional amount or amounts
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as will, in the reasonable determination of such Bank, compensate such Bank for
such additional costs or reduction; provided, however, that the Company's
liability for additional amounts computed in accordance with this section shall
neither be changed nor waived by a failure of such Bank to give such notice.
1.10. Payments. Interest on Prime Rate Loans shall be due
and payable quarterly on the last day of each March, June, September, and
December, commencing on the first of such days to occur after the date thereof;
interest on Eurodollar Loans shall be due and payable on the expiration date of
each applicable Interest Period and, if the Interest Period is longer than 90
days, on the last day of each March, June, September and December commencing on
the first of such days to occur after the commencement of such Interest Period.
In addition, interest shall be due and payable on the Termination Date. The
Agent shall give the Company telephonic advice of the amount of each scheduled
principal and interest payment which shall be due on the Notes and shall
thereafter mail a bill to the Company therefor, but failure of the Agent to
give such telephonic advice or to mail any such bill shall not relieve the
Company of its obligations to make timely payments of principal and interest on
the Notes.
1.11. HLT Classification. If, after the date hereof, Agent
is advised by any Bank that such Bank has received notice from any governmental
authority, central bank or comparable agency having jurisdiction over such Bank
that the Loans are or any of them is classified as a "highly leveraged
transaction" or the Company is classified as an "HLT Borrower" (in each case an
"HLT Classification"), or if Agent reasonably determines that the Loans or any
of them or the Company is subject to an HLT Classification, the Agent shall
promptly give notice of such HLT Classification to the Company and the other
Banks. From and after the date of such notice to the Company and Banks of an
HLT Classification, and continuing until such HLT Classification is removed,
all then outstanding or thereafter advanced Loans shall bear interest at the
applicable rates selected by the Company pursuant to Paragraph 1.6 hereof
(including the then-applicable margin) plus one-half of one percent (1/2%) per
annum.
1.12. Special Provisions Applicable to Eurodollar Loans.
(a) Chanqe of LIBO Rate. The LIBO Rate may be
automatically adjusted by Agent on a prospective basis to take into account the
additional or increased cost of maintaining any necessary reserves for
Eurodollar deposits or increased costs due to changes in applicable law
occurring subsequent to the commencement of the then applicable Interest
Period, including but not limited to changes in tax laws (except changes of
general applicability in corporate income tax laws) and changes in the
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reserve requirements imposed by the Board of Governors of the Federal Reserve
System (or any successor) that increase the cost to Banks of funding any
Eurodollar Loan; provided, however, that each Bank shall use reasonable efforts
to minimize such costs, subject, in any event, to such Bank's sole discretion.
Agent shall give the Company notice of such a determination and adjustment,
which determination and adjustment made in good faith shall be prima facie
evidence of the correctness of the fact and the amount of such adjustment. The
Company may, by notice to Agent, (A) request Agent to furnish to the Company a
statement setting forth the basis for adjusting such LIBO Rate and the method
for determining the amount of such adjustment; and/or (B) repay the Eurodollar
Loan with respect to which such adjustment is made pursuant to the requirements
of Sections 1.5 and 1.8 hereof.
(b) Unavailability of Eurodollar Funds. In the
event that the Company shall have requested a Eurodollar Loan in accordance
with Section 1.6 hereof and any Bank shall have reasonably determined that
Eurodollar deposits equal to the principal amount of such Eurodollar Loan and
for the Interest Period specified are unavailable or that the LIBO Rate will
not adequately and fairly reflect the cost of making or maintaining the
principal amount of such Eurodollar Loan during the Interest Period specified
or that by reason of circumstances affecting Eurodollar markets, adequate and
reasonable means do not enlist for ascertaining the LIBO Rate applicable to the
specified Interest Period, Agent on behalf of such Bank shall promptly give
notice of such determination to the Company that the LIBO Rate is not
available. A determination by Agent hereunder made in good faith shall be prima
facie evidence of the correctness of such fact. Upon such a determination, (i)
the obligation to advance or maintain Eurodollar Loans shall be suspended until
Agent shall have notified the Company and Banks that such conditions shall have
ceased to exist, and (ii) the Company shall elect the Prime Rate to be
applicable to such Loan in accordance with Section 1.6 hereof.
1.13. Interest Rate Protection. Commencing within one (1)
year of May 31, 1994 and continuing for three (3) years from the date of any
such agreement, the Company shall maintain not less than fifty percent (50%) of
the outstanding principal amount of the Loans subject to interest rate
protection agreements in form and substance satisfactory to Agent, and the
Company's obligations thereunder shall be secured by the collateral granted
pursuant to the Security Agreement, and shall have the benefit of the
subordination provisions set forth in the Subordination Agreement.
1.14. Taxes. Any and all payments by the Company to the
Banks hereunder shall be made free and clear of and without deduction for any
and all present or future taxes, levies,
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imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding in the case of each Bank, (i) taxes assessed solely on the
income of such Bank, (ii) taxes arising solely from a connection between such
Bank and the jurisdiction imposing such tax, other than a connection arising
from the activities of such Bank solely in connection with this Agreement, and
(iii) United States withholding tax payable with respect to payments hereunder
under laws (including, without limitation, any statute, treaty, ruling,
determination or regulation) in effect on the Initial Date (as hereinafter
defined) for such Bank, provided that any United States withholding tax payable
as a result of any changes in such laws occurring after the Initial Date shall
not be excluded (all such non-excluded taxes, levies, imposts, deductions,
charges, withholding and liabilities being hereinafter referred to as "Taxes").
For purposes of this Paragraph 1.14, the term "Initial Date" shall mean, in the
case of each Bank, the date of May 31, 1994 and, in the case of each assignee
(for purposes of this Paragraph 1.14, "Assignee"), the date of the applicable
assignment of the Loan. If any Taxes shall be required by law to be deducted
from or in respect of any sum payable hereunder or under any Note to any Bank
or Assignee, (i) the sum payable by the Company shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Paragraph 1.14) such Bank or
Assignee (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, but shall be decreased to take into
account any credit, deduction or offset available in any other jurisdiction as
a result of such payment, and (ii) the Company shall make such deductions and
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law. The Company shall not, however, be
required to pay any amounts pursuant to clause (i) of the preceding sentence to
any Bank organized under the laws of a jurisdiction outside of the United
States, unless such Bank has provided to the Company either (x) a facially
complete Internal Revenue Service Form 4224 or Form 1001 or other applicable
form, certificate or document prescribed by the United States Internal Revenue
Service certifying as to such Bank's entitlement to an exemption from, or
reduction of, United States withholding tax on payments to be made hereunder or
under the Notes or (y) a letter stating that such Bank is unable lawfully to
provide a properly completed and executed Form 4224 or Form 1001 or (z) other
facially complete documents satisfactory to the Agent and the Company
indicating that all payments that will be made to such Bank are exempt from or
subject to a reduced rate of United States withholding tax.
The Company hereby agrees to pay each Bank the full amount of Taxes
(including, without limitation, any Taxes imposed by any jurisdiction on
amounts payable under this Paragraph 1.14) paid by such Bank decreased to take
into account the effect of any
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credit, deduction or offset, as determined and certified by such Bank's tax or
accounting department to Company in good faith, available in any other
jurisdiction on account of the payment of Taxes, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto. Each Bank subject to Taxes agrees either, at its option, to
contest the payment of Taxes or to pay or permit the Company to pay such Taxes
when due and payable and, if any such Bank receives a rebate, refund or other
return of Taxes paid by the Company, such Bank will turn over to the Company
the amount rebated, refunded or returned. Payment under this provision shall be
made within thirty (30) days from the date such Bank makes written demand
therefor.
Within (30) days after the date of any payment of Taxes, the Company
will furnish to the Agent or the applicable Bank the original or a certified
copy of a receipt or other documents reasonably acceptable to the Agent
evidencing payment thereof.
Any Bank or Assignee organized under the laws of a jurisdiction other
than the United States (or any political subdivision thereof) shall provide
from time to time if requested by the Company and the Agent or required by the
Internal Revenue Service of the United States, (i) a facially complete Internal
Revenue Service Form 4224 (or any successor form) certifying that all payments
made to such Bank are effectively connected with its conduct of trade or
business in the United States and will be includable in its gross income or
(ii) a facially complete Internal Revenue Service Form 1001 (or any successor
form) certifying as to its status for purposes of determining the applicability
of a reduced rate of United States withholding taxes with respect to all
payments to be made hereunder to such Bank pursuant to a double tax treaty
obligation of the United States, or (iii) other facially complete documents
satisfactory to the Agent and Company indicating that all payments that will be
made to such Bank are exempt from or subject to a reduced rate of United States
withholding tax. Unless the Company and Agent have received such forms of such
documents validly indicating that payments hereunder are not subject to United
States withholding tax or are subject to such tax at a rate reduced by an
applicable double tax treaty, the Company or the Agent shall withhold taxes
from such payments to such Bank at the applicable statutory rate.
Notwithstanding any other provision contained herein to the contrary,
the Company and the Agent shall be entitled to deduct and withhold United
States withholding taxes with respect to all payments to be made hereunder to
or for any Bank or Assignee as may be required by United States law due to an
assignment and such Bank or Assignee shall indemnify and hold harmless the
Company and the Agent from and against any tax, interest, penalty or other
expense that the Company and the Agent may incur as a
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consequence of any failure to withhold United States taxes applicable because
of any assignment that is not disclosed to them.
ARTICLE II
ADMINISTRATION OF CREDIT
2.1. Borrowing Procedure. Loans hereunder shall be made at
the principal banking office of the Agent located in Philadelphia, Pennsylvania
(or, in the case of a successor Agent, the office identified by such successor
Agent), upon telephonic notice from the Company to the Agent specifying (i) the
date, which must be a Business Day, of the proposed borrowing (hereinafter
referred to as a "Funding Date") (ii) the principal amount and type of the
proposed Loan and (iii) in the case of a Eurodollar Loan, the initial Interest
Period for such Loan. Such telephonic notice shall be given to the Agent not
later than 11:00 a.m., Agent's local time on the first (1st) Business Day prior
to the Funding Date, in the case of Prime Rate Loans, and not later than 11:00
a.m., Agent's local time on the second (2nd) Business Day prior to the Funding
Date in the case of Eurodollar Loans. Upon its receipt of such telephonic
notice from the Company, the Agent shall promptly give telephonic notice to
each other Bank, and each such Bank shall have its portion of the Loans
available to the Agent in Agent's principal banking office in immediately
available funds on the Funding Date. Out of the funds received from the Banks
for the making of the Loans hereunder, the Agent will make a Loan to the
Company in such amount on behalf of such Bank. The failure of any of the Banks
to lend in accordance with its Commitment shall not relieve the other Banks of
their several obligations hereunder, but no Bank shall be liable in respect to
the obligation of any other Bank hereunder or be obligated in any event to lend
in excess of its Commitment. Documents delivered to the Agent for the account
of each Bank shall be promptly delivered to such Bank, or in accordance with
instructions received from it, together with copies of such other documents
received in connection with the borrowing as such Bank shall request. Within
five (5) Business Days after each Funding Date, the Company shall deliver to
the Agent a written certification, dated as of the Funding Date in the form of
Exhibit B attached hereto confirming the matters set forth in clauses (i)
through (iii) of this Section 2.1.
2.2. Computations; Non-Business Days. All interest payable
on Eurodollar Loans shall be computed for the actual number of days elapsed
using a daily rate determined by dividing the annual rate by 360, and all
interest payable on Prime Rate Loans and the commitment fees under Section 1.3
hereof shall be computed on the basis of a year of 365 or 366 days, as
appropriate, for the actual number of days elapsed. Whenever any
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payment to be made hereunder or under any Note shall be stated to be due on a
Saturday, Sunday or a public holiday under the laws of the Commonwealth of
Pennsylvania, such payment may be made on the next succeeding Business Day, and
such extension of time shall be included in the computation of interest under
the Notes, or commitment fees hereunder, as the case may be.
2.3. Application of Payments. All payments and prepayments
of principal, interest and fees under this Agreement and the Notes shall be
made to the Agent at 1500 Market Street, Philadelphia, Pennsylvania 19101 no
later than 1:00 p.m. Philadelphia, Pennsylvania time on the due date thereof in
immediately available funds, for the ratable account of the Banks. The Agent
shall promptly distribute to each such Bank, pro rata, the amount of principal,
interest or fees received by the Agent for the account of such Bank. Any
payment to the Agent for the account of a Bank or a holder of a Note under this
Agreement shall constitute a payment by the Company to such Bank or holder of
the amount so paid to the Agent, and any Notes or portions thereof so paid
shall not be considered outstanding for any purpose after the date of such
payment to the Agent.
2.4. Pro Rata Treatment. All payments or prepayments of
principal, interest or fees shall be made pro rata in accordance with the
amounts of the Notes then outstanding. In the event that any Bank shall receive
from the Company or any other source (other than the sale of a participation to
another commercial lender in the ordinary course of business) any payment of,
on account of, or for any obligation of the Company hereunder or under the
Notes (whether pursuant to the exercise of any right of set off, banker's lien,
realization upon any security held for or appropriated to such obligation,
counterclaim or otherwise) other than as above provided, then such Bank shall
immediately purchase, without recourse and for cash, an interest in the
obligations of the same nature held by the other Bank so that each Bank shall
thereafter have a percentage interest in all of such obligations equal to the
percentage interest which such Bank held in the Notes outstanding immediately
before such payment; provided, that if any payment so received shall be
recovered in whole or in part from such purchasing Bank, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest. The Company specifically acknowledges and consents to the
preceding sentence.
2.5. Deposits; Set Off. The Company grants each Bank, as
security for the Note of such Bank, a lien and security interest in any and all
monies, balances, accounts and deposits of the undersigned at such Bank now or
at any time hereafter. If any Event of Default occurs hereunder or any
attachment of any balance of the Company occurs, such Bank may offset and apply
any such security toward the payment of the Note held by such Bank (subject to
the requirements of Section 2.4 hereof), whether or
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not such Note or any part thereof, shall then be due. Promptly upon its
charging any account of the Company pursuant to this section, the Bank shall
give the Company notice thereof.
ARTICLE III
CONDITIONS OF BORROWING
Without limiting any of the other terms of this Agreement, the
Banks shall not be required to make any Loan to the Company hereunder unless
the requirements of Section 3.1 below are satisfied on the Funding Date for
such Loan. This Amended and Restated Revolving Credit Agreement shall become
effective when executed by the Company, Agent and each Bank and when the
conditions set forth in Sections 3.1 to 3.6, inclusive, below are satisfied.
3.1. Representations. On the date hereof and on the date
of each Loan, the representations and warranties contained in Article IV hereof
and in Section 3 of the Security Agreement (hereinafter defined) continue to be
true and correct; no Default or Event of Default hereunder shall have occurred
and be continuing; and the Agent shall have received a telephonic request
therefor at the times and containing the information required under Section 2.1
above. Each such telephonic request for a Loan shall constitute a certification
by the Company that the matters set forth in clauses (a), (b) and (c) of
Exhibit B hereto are true as of the date thereof. If no Interest Period is
specified by the Company, the Loan request shall be deemed a request for a
Prime Rate Loan.
3.2. Subordination. The Partnerships and JII shall have
executed and delivered to Agent an amended and restated version of the
subordination agreement executed in connection with the Existing Credit
Agreement (as so amended and restated and as amended, modified or restated from
time to time hereafter, the "Subordination Agreement"). An integrated
composite of the Subordination Agreement is attached hereto as Exhibit C.
3.3. Security Aqreement. The Company shall have executed
and delivered to Agent (i) a confirmation of the security agreement executed in
connection with the Existing Credit Agreement (as amended prior to the date
hereof and from time to time hereafter, the "Security Agreement") covering all
tangible and intangible personal property of the Company comprising, relating
to or arising from the CATV Systems of the Company, and (ii) to the extent not
already filed, financing statements, in form satisfactory to the Agent,
covering the collateral described in the Security Agreement. An integrated
composite of the Security Agreement is attached hereto as Exhibit D.
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15
3.4. Insurance Certificate. Agent shall have received
evidence satisfactory to it that the Company maintains hazard insurance
coverage reasonably satisfactory to Banks.
3.5. Counsel Opinion. Each Bank shall have received from
counsel for the Company and JII, satisfactory opinions as to such matters
relating to the Company and JII, the validity and enforceability of this
Agreement, the Loans made and to be made hereunder and the other documents
required by this Article III and Federal Communications Commission ("FCC"),
U.S. Copyright Office and franchise matters as Banks shall reasonably require.
Banks acknowledge that the opinions delivered in connection with the Existing
Credit Agreement and various of the Amnendments satisfy this requirement. The
Company shall execute and/or deliver to each Bank or its counsel such documents
concerning its partnership status and the authorization of such transactions as
may be reasonably requested.
3.6. Proceedinqs Satisfactory. All proceedings taken in
connection with the transactions contemplated by this Agreement, and all
instruments, authorizations and other documents applicable thereto, shall be
satisfactory in form and substance to each Bank and its counsel.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and
to make the Loans as provided herein, the Company represents and warrants to
each of the Banks as follows:
4.1. Orqanization. The Company is a joint venture
partnership duly formed and validly existing under the laws of the State of
Colorado and has all requisite partnership power and authority to conduct its
business and to own its properties. The Company has no subsidiaries or
investments in or loans to any other individuals or business entities other
than loans and investments permitted by Section 5.05. The Partnerships are the
sole joint venturers or partners with an ownership interest in the Company, and
JII is the sole general partner of each of the Partnerships. The Company, the
Partnerships and JII are each duly licensed or qualified to do business in the
States of Michigan, California, Colorado, Nebraska, Oregon and Indiana and all
other jurisdictions in which the nature of their activities or the character of
their properties requires such qualification, and failure to so qualify would
have a material adverse effect on the property, financial condition or business
operations of the Company. All joint venture and partnership interests in the
Company are validly existing and the creation and sale thereof are in
compliance with all applicable federal and state
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16
securities laws and other applicable laws in all material respects.
4.2. Authority. The execution, delivery and performance of
the Existing Credit Agreement, Amendment No. 1 through Amendment No. 6 and the
Notes were, and the execution, delivery and performance of this Agreement and
the documents required by Article III (the "Collateral Documents") are, within
the partnership powers of the Company, were and have been duly authorized by
all necessary partnership action and did not, do not and will not (i) require
any consent or approval of the joint venture partners of the Company which has
not been obtained (and evidence thereof delivered to the Banks), (ii) violate
any provision of the Joint Venture Agreement of the Company dated October 21,
1987 (as amended, the "Joint Venture Agreement") or of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to the Company; (iii) except as set
forth in Exhibit E hereto, require the consent or approval of, or filing or
registration with, any governmental body, agency or authority; or (iv) result
in a material breach of or constitute a default under, or result in the
imposition of any lien, charge or encumbrance upon any property of the Company
pursuant to, any indenture or other material agreement or instrument under
which the Company is a party or by which it or its properties may be bound or
affected, except for Permitted Liens. This Agreement constitutes, and the Notes
and each of the documents required by Article III when executed and delivered
hereunder will constitute, legal, valid and binding obligations of the Company
or other signatory enforceable in accordance with its respective terms, except
as such enforceability may be limited by bankruptcy or similar laws affecting
the enforceability of creditors' rights generally.
4.3. Investment Company Act of 1940. The Company is not an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
4.4. Employee Retirement Income Security Act. The Company
does not presently maintain, nor is the Company required to contribute to, any
Plan on behalf of any of its employees.
4.5. Financial Statements. The balance sheet of the
Company as of December 31, 1993, and the income statement of the Company for
the year ended on such date, as prepared.by Arthur Andersen & Co. and
heretofore furnished to the Banks, are correct and complete and fairly
represent the financial condition and the results of its operations for the
fiscal year ended on such date. Other than as described in Exhibit E attached
hereto, since such date there has been no material adverse change in the
property,
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business, financial condition or operations of the Company or the CATV Systems.
4.6. [Intentionally Left Blank]
4.7. Liens. The Company has good and marketable title to
all of its assets, real and personal, free and clear of all liens, security
interests, mortgages and encumbrances of any kind, except Permitted Liens. All
owned and leased buildings and equipment of the Company are in good condition,
repair and working order in all material respects and, to the best of the
Company's knowledge and belief, conform in all material respects to all
applicable laws, regulations and ordinances.
4.8. Continqent Liabilities. The Company has no guarantees
or other contingent liabilities outstanding (including, without limitation,
liabilities by way of agreement, contingent or otherwise, to purchase, to
provide funds for payment, to supply funds to or otherwise invest in the debtor
or otherwise to assure the creditor against loss), except those permitted by
Section 5.8 hereof.
4.9. Partnership Tax Matters.
(a) Except as set forth on Exhibit E, the Company
has duly and timely filed all information and tax returns and reports with any
federal, state, local or foreign governmental taxing authority, body or agency,
and all taxes, including without limitation income, gross receipt, sales, use,
excise and any other taxes, and any governmental charges, penalties, interest
or fines with respect thereto, due and payable by the Company, have been paid,
withheld or reserved for in accordance with GAAP or, to the extent they relate
to periods on or prior to the date of the financial statements referenced in
Section 4.5 hereof (the "Financial Statements"), are reflected as a liability
on the Financial Statements in accordance with GAAP.
(b) As of the date of this Agreement, none of the
Company's federal income tax information returns have been audited. Except as
set forth on Exhibit E, the Company has not entered into any agreements for the
extension of time for the assessment of any tax or tax delinquency, and the
Company has received no outstanding and unresolved notices from the Internal
Revenue Service or other state, local or foreign taxing authority, agency or
body of any proposed examination or of any proposed change in reported
information which may result in a deficiency or assessment against the Company
or any partner in the Company and there are no suits, actions, claims,
investigations, inquiries or proceedings now pending against the Company in
respect of taxes, governmental charges or assessments.
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4.10. Absence of Litiqation. Except as set forth in Exhibit
E hereto, neither the Company, JII nor any Partnership is a party to any
litigation or administrative proceeding, nor so far as is known by the Company
is any litigation or administrative proceeding threatened against any of them,
(i) which relates to the execution, delivery or performance of this Agreement,
the Notes or any other document required hereunder, or (ii) which could, if
adversely determined, cause any material adverse change in the property,
financial condition or business operations of the Company.
4.11. Absence of Default. No event has occurred which
either of itself or with the lapse of time or the giving of notice or both,
would give any creditor of the Company the right to accelerate the maturity of
any indebtedness of the Company for borrowed money. The Company is not in
default under any other material lease, agreement or instrument, or any law,
rule, regulation, order, writ, injunction, decree, determination or award,
non-compliance with which could materially adversely affect its property,
financial condition or business operations.
4.12. Material Agreements. The Company is not a party to
any agreement, instrument or undertaking, or subject to any other restriction,
(i) which materially adversely affects or may in the future so affect the
property, financial condition or business operations of the Company, or (ii)
under or pursuant to which the Company is or will be required to place (or
under which any other person may place) a lien upon any of its properties
securing indebtedness either upon demand or upon the happening of a condition,
with or without such demand (other than the Collateral Documents required by
this Agreement).
4.13. Partnerships; Joint Ventures. The Company is not a
member of any partnership or joint venture.
4.14. Full Disclosure. No information, exhibit or report
furnished by Company or JII to any Bank in connection with the negotiation or
execution of this Agreement contained any material misstatement of fact as of
the date when made or omitted to state a material fact or any fact necessary to
make the statements contained therein not misleading as of the date when made.
4.15. Fiscal Year. The fiscal year of the Company ends on
December 31 of each year.
4.16. Franchises, Licenses, etc..
(a) On the date hereof the Company holds, and at
all times hereafter it will continue to hold all licenses, franchises, permits
and approvals of, governmental authorities and agencies, including FCC licenses
and local municipal
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licenses, permits and franchises and rights with respect thereto (herein
collectively called "CATV Licenses"), and has made all necessary filings with
and given all necessary notices to governmental authorities and agencies,
including the U.S. Copyright Office, required or necessary for the ownership
and operation of its CATV Systems. The Company is in compliance in all material
respects with such CATV Licenses, without any known conflict with the rights of
others which might result in a material adverse effect on the Company, and in
each case subject to no mortgage, pledge, lien, lease encumbrance or option
except Permitted Liens. Attached hereto as Exhibit F is a complete and accurate
list of all CATV Licenses held by the Company (copies of such CATV Licenses
having been delivered to the Banks) the name of the municipality or other
entity granting the same, the expiration date thereof and the date such CATV
License was issued or transferred to the Company. No event has occurred which
permits, or after notice or lapse of time or both would permit, the revocation
or termination of any such CATV License, or which would materially adversely
affect the rights of the Company thereunder.
(b) On the date hereof and at all times
hereafter, the Company will own or be a party to all pole attachment and
conduit use agreements necessary for the operation of its CATV Systems and all
agreements with public utilities and with microwave transmission companies that
are required in connection with the conduct of its business, and will duly
perform and observe in all material respects the terms and conditions thereof,
and no revocation, suspension or termination of any such agreement shall have
occurred which would have a material adverse affect on the Company, its
business or operations. The Company shall deliver to each Bank at its request,
complete and correct copies of all said agreements.
4.17. CATV Systems. The Company owns the CATV Systems
described in Exhibit G attached hereto, which sets forth a description of the
franchises (including the expiration dates thereof), locations and Basic
Subscriber counts of such CATV Systems as of April 30, 1994 and a description
of the headend and office facilities, and the record owners of such locations
and descriptions of any leases covering the Company's lease of any of such
facilities from others.
4.18. Hazardous Wastes, Substances and Petroleum Products.
(a) The Company has received all permits and
filed all notifications necessary to carry on its business(es) under, and is in
compliance in all material respects with, all Environmental Control Statutes.
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(b) The Company has not given any written or oral
notice to the Environmental Protection Agency ("EPA") or any state or local
agency with regard to any actual or imminently threatened removal, spill,
release or discharge of hazardous or toxic wastes, substances or petroleum
products on properties owned or leased by the Company or in connection with the
conduct of its business and operations.
(c) The Company has not received notice that it
is potentially responsible for costs of cleanup of any actual or imminently
threatened spill, release or discharge of hazardous or toxic wastes or
substances or petroleum products pursuant to any Environmental Control Statute.
4.19. Compliance. The Company is in compliance in all
material respects with all applicable laws and regulations, federal, state and
local (including without limitation those administered by the FCC and all state
and local authorities regulating the Company's CATV Systems), material to the
conduct of its business and operations; the Company has properly withheld all
amounts required by law to be withheld for income taxes and unemployment taxes
including without limitation, all amounts required with respect to social
security and unemployment compensation, relating to its employees, and has
remitted such withheld amounts in a timely manner to the appropriate taxing
authority, agency or body; the Company possesses all the franchises, permits,
licenses, certificates of compliance and approval and grants of authority
necessary or required in the conduct of its business and the same are valid,
binding, enforceable and subsisting without any material defaults thereunder
and are not subject to any proceedings or claims opposing the issuance,
development or use thereof or contesting the validity thereof.
4.20. Perfection of Security Interests. Borrower has no
knowledge of any further action, including any filing or recording of any
documents, which would be necessary in order to establish, perfect and maintain
the first priority security interest of Banks in the personal property assets
of the Company covered by the Security Agreement, except for the periodic
filing of continuation statements with respect to financing statements filed
under the Uniform Commercial Code of applicable jurisdictions.
ARTICLE V
NEGATIVE COVENANTS
For so long as the Commitments of the Banks (or any Bank) to
the Company under this Agreement remain available and while any part of the
principal of or interest on the Loans
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remains unpaid, the Company shall not do any of the following without the prior
written consent of Required Banks:
5.1. Restriction of Indebtedness. Create, incur, assume or
have outstanding any indebtedness for borrowed money or for the deferred
purchase price of any asset (including obligations under Capitalized Leases),
except trade indebtedness in the normal and ordinary course of business for
value received, and (i) the Notes, (ii) indebtedness and obligations incurred
to purchase or lease fixed or capital assets; provided, however, that payments
on such indebtedness and obligations shall not exceed $100,000 in the aggregate
during any fiscal year and the aggregate outstanding principal amount thereof
shall not exceed $1,000,000 at any time, and (iii) indebtedness to JII and the
Partnerships for Management Fees, Home Office Allocations and other advances
subordinated to all indebtedness of the Company to the Banks pursuant to the
Subordination Agreement and subject to Sections 5.10 and 5.11 hereof and (iv)
indebtedness existing on the date of the Existing Credit Agreement and listed
on Exhibit H hereto.
5.2. Amendments and Prepayments. Agree to any amendment,
modification or supplement, or obtain any waiver or consent in respect of
compliance with any of the terms of, or call or redeem, or make any purchase or
prepayment of or with respect to, any instrument or agreement evidencing or
relating to any indebtedness for borrowed money or for the deferred purchase
price of any asset, including Capitalized Leases, if such action would have a
material adverse effect on the Company or its financial condition or business
operations.
5.3. Restriction on Liens. Create or permit to be created
or allow to exist any mortgage, pledge, encumbrance or other lien upon or
security interest in any property or asset now owned or hereafter acquired by
the Company (including, without limitation, assets comprising the CATV
Systems), except Permitted Liens, or agree or covenant with or promise any
person or entity other than the Banks that it will not pledge its assets or
properties or otherwise grant any liens, security interests or encumbrances on
its property on terms similar to those set forth in this Section 5.3.
5.4. Sale and Leaseback. Enter into any agreement
providing for the leasing by the Company of property which has been or is to be
sold or transferred by the Company to the lessor thereof, or which is
substantially similar in purpose to property so sold or transferred.
5.5. Acquisitions, Loans and Investments. Acquire any
other business or any CATV System (or interest therein) not owned on the date
of the Existing Credit Agreement, or make any loan, advance or extension of
credit to, or investment in, any other
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person, corporation or other entity, including investments acquired in exchange
for partnership interests or other securities or obligations of any nature of
the Company, or create or participate in the creation of any Subsidiary or
joint venture, except:
(a) investments in commercial paper maturing in
180 days or less from the date of issuance which is rated A1 or better by
Standard & Poor's Corporation or P1 or better by Moody's Investors Services,
Inc.; investments in direct obligations of the United States of America or
obligations of any agency thereof which are guaranteed by the United States of
America, provided that such obligations mature within twelve (12) months of the
date of acquisition thereof; and investments in certificates of deposit
maturing within one (1) year from the date of acquisition thereof issued by a
Bank or bank or trust company organized under the laws of the United States or
any state thereof, having capital, surplus and undivided profits aggregating at
least $500,000,000 and the long-term indebtedness of which is rated A+ or
better by Moody's Investors Services, Inc. or equivalent by Standard & Poor's
Corporation;
(b) loans and advances made to employees,
subcontractors and suppliers in the ordinary course of business not to exceed
$25,000 in the aggregate principal amount outstanding at any time; and
(c) if no Default or Event of Default exists at
the time thereof, or would be caused as a result thereof, acquisitions of
assets related to the operation of CATV Systems, not to exceed One Million
Dollars ($1,000,000) in the aggregate from May 31, 1994 (the Amendment No. 6
Effective Date) to the Termination Date.
5.6. Liquidation; Merger; Disposition of Assets. Liquidate
or dissolve or discontinue any substantial part of its operations or business;
or merge with or into or consolidate with or into any other corporation,
partnership or other entity; or sell, lease, transfer or otherwise dispose of
all or any material part of its property, assets or business (other than sales
made in the ordinary course of business for value received), or any stock or
capital interest in any Subsidiary; provided, however, that the Company may
sell or dispose of any CATV System for fair value if (a) the Company gives the
Agent written notice of such sale or disposition at least 15 days prior to the
date thereof, (b) prior to and after giving effect to the proposed sale or
disposition of such CATV System (and any required reduction of the Commitments
and payment on the Notes with the proceeds of such sale or disposition pursuant
to Sections 1.4 and 1.5 hereof) (i) no Default or Event of Default under this
Agreement is continuing, (ii) the ratio of the Company's Total Debt to
Operating Cash Flow after giving effect to such sale or
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disposition is no greater than such ratio immediately prior to such sale or
disposition and (iii) the Company is otherwise in compliance with the terms,
provisions and covenants of this Agreement in all material respects, and (c)
commencing with the fourth (4th) sale or disposition of a CATV System
identified on Exhibit G hereto, the Company shall use the net proceeds of any
such sale or disposition to pay Loans on a pro rata basis pursuant to Section
1.5 hereof to the extent necessary to cause the Company's ratio of Total Debt
to Operating Cash Flow (based on the most recently delivered financial
statements and excluding Operating Cash Flow attributable to the sold CATV
System(s)) to be equal to or less than 3.0 to 1, and shall permanently reduce
the Commitments pursuant to Sections 1.4 of the Credit Agreement on a pro rata
basis in the amount of such payment; provided, however, that (i) if the
Lochbuie, Colorado System is one of the first three CATV Systems sold, then
such payment requirement shall commence on the fifth (5th) sale or disposition
of a CATV System, and (ii) if the Boulder, Colorado System is sold in
connection with a sale of the Broomfield, Colorado System, then such aggregate
sale shall be treated as a sale of one (1) CATV System for purposes of this
clause (c).
5.7. Accounts Receivable. Except in connection with the
sale of the accounts receivable of a CATV System as part of a sale by the
Company of such CATV System which is otherwise permitted under Section 5.6
hereof, discount or sell with recourse, or sell for less than the face amount
thereof, any of its notes or accounts receivable, whether now owned or
hereafter acquired.
5.8. Contingent Liabilities. Guarantee or become a surety
or otherwise contingency liable (including, without limitation, liable by way
of agreement, contingent or otherwise, to purchase, to provide funds for
payment, to supply funds to or otherwise invest in the debtor or otherwise to
assure the creditor against loss) for any obligations of others, except
pursuant to the deposit and collection of checks and similar terms in the
ordinary course of business.
5.9. Affiliates. Suffer or permit any transaction with any
Affiliate, except on terms not less favorable to the Company than would be
usual and customary in similar transactions with non-affiliated persons;
provided that this Section 5.9 shall not prohibit the payment of (i) Home
Office Allocations and Management Fees in accordance with the Joint Venture
Agreement except as the same may be restricted by the terms hereof and under
the Subordination Agreement and (ii) commissions to The Jones Group, Ltd. as
described in Paragraph 2 of Article XII of the Joint Venture Agreement.
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5.10. Management Fees and Home Office Allocations. Pay, or
obligate or legally bind itself to pay, Management Fees or Home Office
Allocations; provided, however, that in the absence of a Default or an Event of
Default (and if such payment, together with any payments made pursuant to this
Section 5.10 and Section 5.11 hereof will not create a Default or an Event of
Default) the Company may: (i) pay Management Fees for any fiscal quarter of the
Company not to exceed five percent (5%) of the Gross Operating Revenues of the
Company for such quarter (excluding revenues from the sale of any CATV Systems
or CATV Licenses) and (ii) pay Home Office Allocations in amounts not to exceed
reasonable levels for such payments based on JII's and the Company's historic
practices, taking into account inflation and fluctuations in the cost of the
items comprising Home Office Allocations. Management Fees and Home Office
Allocations accrued but unpaid for any fiscal quarter shall be deferred and
subordinated to indebtedness of the Company to the Banks pursuant to the
Subordination Agreement; provided, however, that so long as there exists no
Default or Event of Default under this Agreement (and such payment, together
with any payments made pursuant to this Section 5.10 and Section 5.11 hereof,
will not create a Default or Event of Default), (i) such deferred Management
Fees and Home Office Allocations may be paid in any subsequent fiscal quarter
to the extent of Adjusted Cash Flow for the preceding quarter and (ii) the
Company may pay accrued interest on deferred Management Fees and Home Office
Allocations at a rate not to exceed JII's cost of capital.
5.11. Restricted Payments. Make any Restricted Payments;
provided, however that the Company may, in the absence of a Default or Event of
Default under this Agreement (and if such payment, together with any payments
permitted to be made pursuant to Section 5.10 hereof, will not create a Default
or Event of Default), (i) make distributions to its joint venture partners
consistent with distributions contemplated by the Partnerships to their
partners as set forth in the Prospectus dated January 10, 1986, as amended
September 29, 1986 and December 19, 1986 in respect to Jones Cable Income Fund
1 previously delivered to the Banks, (ii) make interest payments to JII at a
rate not to exceed JII's cost of capital on any indebtedness subordinated
pursuant to the Subordination Agreement and (iii) in connection with a sale of
a CATV System permitted by Section 5.6 hereof, make distributions to the
Partnerships to the extent the proceeds thereof are not required thereunder to
be used to make a payment of the Loans.
5.12. Partnerships; Joint Ventures; Partnership Documents.
Become a member of any partnership or joint venture; or amend or permit any
amendments of the Joint Venture Agreement.
5.13. Fiscal Year. Change its fiscal year.
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ARTICLE VI
AFFIRMATIVE COVENANTS
For so long as the Commitments of the Banks (or any Bank) to
the Company under this Agreement remain available and while any part of the
principal of or interest on the Loans remains unpaid, and unless waived in
writing by the Banks, the Company shall:
6.1. Financial Covenants. (a) Maintain at all times during
the periods set forth in the left-hand column below a ratio of the Company's
Total Debt as of the date of determination to the Company's Operating Cash Flow
as of the last day of the most recently ended quarter of not greater than the
amount set forth in the right-hand column:
Period Maximum Ratio
------ -------------
05/31/94 through 06/30/96 5.0 to 1
07/01/96 and at all times 4.5 to 1
thereafter
(b) Maintain at all times during the periods set
forth in the left-hand column below a ratio of the Company's Operating Cash
Flow as of the last day of the most recently ended quarter to Proforma Interest
Expense for the period commencing on the first day of the current quarter of
not less than the amount set forth in the right-hand column:
Period Minimum Ratio
------ -------------
05/31/94 through 06/30/96 2.50 to 1
07/01/96 and at all times 3.00 to 1
thereafter
6.2. Insurance. Maintain insurance in such amounts and
against such risks as is customary by companies engaged in the same or similar
businesses and similarly situated under policies requiring the insurer to
furnish reasonable notice to the Agent and opportunity to cure any non-payment
of premiums prior to termination of coverage; and furnish each Bank with
certificates of such insurance and cause Agent to be named as the lender loss
payee thereof, as its interest may appear.
6.3. Partnership Existence; Obligations. Do all things
necessary to: (i) maintain its partnership existence and all rights and
franchises necessary or desirable for the conduct of its business (except for
transactions permitted by Section 5.6); (ii) comply in all material respects
with all applicable laws, rules, regulations and ordinances, and all
restrictions imposed by governmental authorities, including those relating to
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environmental standards and controls; and (iii) pay, before the same become
delinquent and before penalties accrue thereon, all taxes, assessments and
other governmental charges against it or its property, and all of its other
liabilities, except to the extent and so long as the same are being contested
in good faith by appropriate proceedings in such manner as not to cause any
material adverse effect upon its property, financial condition or business
operations, with adequate reserves provided for such payments.
6.4. Business Activities; Manaqement. Continue to carry on
its business activities in substantially the manner such activities are
conducted on the date of this Agreement and not make any material change in the
nature of its business. Without limiting the generality of the foregoing, the
Company shall cause its CATV Systems to continue to be managed by JII in
substantially the same manner and on substantially the same terms as such CATV
Systems are managed by JII on the date hereof.
6.5. Properties. Keep its properties (whether owned or
leased) in good condition, repair and working order, ordinary wear and tear and
obsolescence excepted, and make or cause to be made from time to time all
necessary repairs thereto (including external or structural repairs) and
renewals and replacements thereof.
6.6. Accounting Records; Reports. Maintain a standard and
modern system for accounting in accordance with generally accepted principles
of accounting consistently applied throughout all accounting periods; and
furnish to each Bank such information respecting the business, assets and
financial condition of the Company as it may reasonably request and, without
request, furnish to each Bank:
(a) Within 60 days after the end of each of the
first three quarters of each fiscal year of the Company (i) a balance sheet of
the Company as of the close of such quarter and of the preceding fiscal
year-end; and (ii) statements of income and surplus of the Company for such
quarter and for that part of the fiscal year ending with such quarter; all in
reasonable detail and certified as true and correct (subject to audit and
normal year-end adjustments) by the chief financial officer or the Treasurer of
JII; and
(b) As soon as available, and in any event within
105 days after the close of each fiscal year of the Company, a copy of the
audit report for such year and accompanying financial statements of the Company
as prepared by independent public accountants of recognized standing selected
by the Company and satisfactory to each of the Banks, which audit report shall
be accompanied by an opinion of such accountants, in form satisfactory to each
of the Banks, to the effect that the same
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fairly present the financial condition of the Company and the results of its
operations as of the relevant dates thereof; together with copies of any
management letters (or portions thereof) issued by such accountants in
connection with such audit regarding matters which relate to or adversely
effect the Company; and
(c) As soon as available, copies of all reports
or materials (in respect to matters which may have a material adverse effect on
the business or financial condition of the Company) filed with the FCC, the
Securities Exchange Commission or other governmental agency having regulatory
authority over the Company or with any national securities exchange; the
Company shall also deliver to each of the Banks a copy of all information (in
respect to matters which may have a material adverse effect on the business or
financial condition of the Company) sent by the Company to its joint venture
partners or the limited partners of the Partnerships within ten (10) days after
the date such information shall have been sent to such joint venture partners
or limited partners, as the case may be; and
(d) Upon request, evidence that insurance
policies are in force covering all property of the Company; and
(e) Promptly, and in any event within 10 days,
after Company has knowledge thereof a statement of the chief financial officer
or Treasurer of JII describing: (i) in detail any event which, either of itself
or with the lapse of time or the giving of notice or both, would constitute a
Default or an Event of Default hereunder or under any other material agreement
to which the Company is a party, the period of existence thereof together with
a statement of the actions which the Company has taken or proposes to take with
respect thereto; and (ii) any pending or threatened litigation or
administrative proceeding of the type described in section 4.10; and
(f) Together with the financial statements
referred to in (a) and (b) above, a Compliance Certificate signed on behalf of
the Company by the chief financial officer or Treasurer of JII, demonstrating
in reasonable detail compliance by the Company with the requirements of
Sections 5.10, 5.11 and 6.1 hereof; and
(g) Within 30 days after the end of each calendar
month, a report, in form and substance satisfactory to each of the Banks,
showing with respect to the CATV Systems of the Company (individually and in
the aggregate) (i) the number of Basic Subscribers at the beginning and at the
end of such month (not including those whose accounts are more than sixty (60)
days delinquent) and (ii) any other information reasonably requested by either
of the Banks.
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(h) (i) Promptly, and in any event within 30
days, after the Company knows that any Reportable Event with respect to any
Plan has occurred, a statement of the chief financial officer or Treasurer of
JII setting forth details as to such Reportable Event and the action which the
Company proposes to take with respect thereto, together with a copy of any
notice of such Reportable Event given to the Pension Benefit Guaranty
Corporation if a copy of such notice is available to the Company, (ii) promptly
after the filing thereof with the Internal Revenue Service, copies of each
annual report with respect to each Plan administered by the Company and (iii)
promptly after receipt thereof, a copy of any notice (other than a notice of
general application) the Company, any Subsidiary or any member of the
Controlled Group may receive from the Pension Benefit Guaranty Corporation or
the Internal Revenue Service with respect to any Plan administered by the
Company.
The financial statements referred to in (a) and (b) above shall be
accompanied by a certificate by the chief financial officer or Treasurer of JIi
that, as of the close of the last period covered in such financial statements,
no condition or event had occurred which constitutes an Event of Default or a
Default hereunder.
6.7. Inspection of Records; Information. Permit
representatives of each of the Banks to visit and inspect any of the properties
and examine any of the books and records of the Company at any reasonable time
and as often as may be reasonably desired on reasonable notice; and provide
each of the Banks with all documents and information regarding the Company and
the CATV Systems, financial or otherwise, reasonably requested by any Bank.
6.8. INTENTIONALLY LEFT BLANK
6.9. Compliance; Notification.
(a) The Company, each of the Partnerships and JII
(with respect to the CATV Systems) will comply in all material respects with
all local, state and federal laws and regulations applicable to its business
and the provisions and requirements of all franchises, permits, certificates of
compliance and approval issued by regulatory authorities and other like grants
of authority held by the Company; and the Company will notify Banks immediately
in detail of any actual or alleged failure to comply with or perform, breach,
violation or default under any such laws or regulations or under the terms of
any of such franchises, licenses or grants of authority, the existence of which
would be reasonably likely to have a material adverse effect on the business,
operations or financial condition of the Company; or of the occurrence or
existence of any facts or circumstances which with the passage of time, the
giving of notice or otherwise could
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create such a breach, violation or default or could occasion the termination of
any of such franchises or grants of authority.
(b) Each of the Company, the Partnerships and JII
will notify Banks in writing immediately of the institution of any litigation,
the commencement of any administrative proceeding, the happening of any event
or the assertion or threat of any claim, which relates to this Agreement, the
Notes or any Collateral Document or which, if adversely determined, would be
reasonably likely to have a material adverse effect on the business, operations
or financial condition of the Company.
(c) With respect to the Environmental Control
Statutes, the Company shall notify Banks when, in connection with the conduct
of the Company's business(es) or operations, any person or entity, or any
federal, state or local agency provides oral or written notification to the
Company, the Partnerships or JII with regard to an actual or imminently
threatened removal, spill, release or discharge of hazardous or toxic wastes,
substances or petroleum products; and notify Banks in detail immediately (i)
upon the receipt by the Company of an assertion of liability under the
Environmental Control Statutes, (ii) of any actual or alleged failure to comply
with or perform, breach, violation or default under any such Environmental
Control Statutes and (iii) of the occurrence or existence of any facts, events
or circumstances which with the passage of time, the giving of notice, or both,
could create such a breach, violation or default.
ARTICLE VII
DEFAULTS
In the event that any one or more of the following events (each an
"Event of Default") shall occur:
7.1. Default in Payment. The Company shall fail to pay (i)
any interest on any Note, or any other amount payable to any Bank hereunder
(other than a principal payment on any Note), within three (3) days after the
same becomes due or (ii) any principal amount due on any Note when due;
7.2. Default on Certain Covenants. Default in the
performance or observance of any agreement, covenant, condition, provision or
term contained in Article V or Section 6.1 of this Agreement;
7.3. Default in Performance of Other Agreements. Default
by the Company or JII (in the case of the Subordination Agreement) in the
performance or observance of any of the agreements, covenants, conditions,
provisions or terms in this
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Agreement (other than those which constitute Events of Default under Section
7.1 or 7.2 above) or any Collateral Document, continuing for a period of 20
days after written notice thereof is given to the Company by the Agent on
behalf of the Banks;
7.4. Representations or Statements False. Any
representation or warranty made by the Company or JII herein or in any
Collateral Document or other document, certificate or agreement delivered
pursuant hereto, or any financial statement delivered to either Bank hereunder,
shall prove to have been false in any material respect as of the time when made
or given;
7.5. Default on Other Obliqations. The Company shall fail
to pay all or any part of the principal of or interest on any indebtedness of
or assumed by it in excess of $100,000 as and when due and payable (whether by
fixed maturity or acceleration) and such default shall not be cured within the
period or periods of grace, if any, specified in the instruments governing such
obligations; or default shall occur under any evidence of, or any indenture or
agreement or other instrument governing, such obligation, and such default
shall continue for a period of time sufficient to permit the acceleration of
the maturity of any such indebtedness;
7.6. Judgments. Any judgment, writ, warrant, attachment
or execution or similar process which, together with other outstanding
judgments, writs, warrants, attachments and executions against the Company or
its property, which requires payment or presents liability in excess of
$500,000 (not covered by insurance) shall be entered or issued against or
levied against the Company or its property and such judgment or other process
shall not be satisfied, waived, discharged, settled, vacated, fully bonded or
stayed within 60 days after the date of the issuance or levy thereof;
7.7. Bankruptcy; Insolvency. The Company, either of the
Partnerships or JII shall (a) become insolvent; or (b) generally fail to pay
its debts as they mature; or (c) make a general assignment for the benefit of
creditors or to an agent authorized to liquidate any substantial amount of its
property; or (d) become the subject (either voluntarily or involuntarily) of an
"order for relief" within the meaning of the United States Bankruptcy Code; or
(e) file an answer to a creditor's petition (admitting the material allegations
thereof) for liquidation, reorganization or to effect a plan or other
arrangement with creditors; or (f) apply to a court for the appointment of a
receiver, trustee or custodian for any of its assets; or (g) have a receiver,
trustee or custodian appointed for any of its material assets (with or without
its consent); or (h) otherwise become the subject of any insolvency proceeding;
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7.8. Validity. This Agreement, any Note or any document
required by Article III shall, at any time after their respective execution and
delivery, and for any reason, cease to be in full force and effect or shall be
declared null and void, or be revoked or terminated, or the validity or
enforceability thereof or hereof shall be contested by the Company, either of
the Partnerships or JII, or the Company shall deny that it has any or further
liability or obligation thereunder or hereunder, as the case may be;
7.9. ERISA. Any Reportable Event, which Required Banks
determine in good faith to constitute grounds for the termination of any Plan
by the Pension Benefit Guaranty Corporation or for the appointment by the
appropriate United States District Court of a trustee to administer any Plan,
shall have occurred, or any Plan shall be terminated within the meaning of
Title IV of ERISA, or a trustee shall be appointed by the appropriate United
States District Court to administer any Plan, or the Pension Benefit Guaranty
Corporation shall institute proceedings to terminate any Plan or to appoint a
trustee to administer any Plan, and in case of any event described in the
preceding provisions of this section 7.9 the Required Banks determine in good
faith that the aggregate amount of the Company's liability to the Pension
Benefit Guaranty Corporation under ERISA shall exceed $500,000 and such
liability is not covered, for the benefit of the Company, by insurance;
7.10. Revocation of Franchise, etc. Custody or control of
any substantial part of the property of the Company, either Partnership or JII
shall be assumed by any governmental agency or any court of competent
jurisdiction at the request of any governmental agency; if any CATV franchise
of the Company shall be suspended, revoked, not renewed or otherwise terminated
(including if the Company is required by any franchising authority or by court
order or administrative order to halt construction or operations under any CATV
franchise and such action shall continue uncorrected for thirty (30) days after
the Company has received notice thereof), and such CATV franchise, together
with all other CATV franchises suspended, revoked, not renewed or otherwise
terminated at the time of such suspension, revocation or termination, has
either singly or in the aggregate in excess of the greater of ten percent (10%)
of the Basic Subscribers covered by all of the Company's CATV franchises on the
last day of the most recently ended fiscal quarter of the Company; or if any
governmental regulatory authority or judicial body shall make any other final
non-appealable determination the effect of which would be to affect materially
and adversely the operations of the Company as now conducted;
7.11. Termination or Dissolution of the Company, etc. The
Partnerships shall agree to terminate or dissolve the Company; if the Company
is terminated or dissolved and not
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simultaneously continued; if either Partnership shall withdraw as a partner of
the Company; if JII shall cease to be the general partner of each of the
Partnerships and the manager of the Company; or if the sole partners of the
Company shall cease to be the Partnerships;
7.12. Environmental Matters. Any event or condition shall
occur or exist with respect to any activity or substance regulated under the
Environmental Control Statutes and as a result of such event or condition, the
Company has incurred a liability in excess of $500,000 during any consecutive
twelve (12) month period;
THEN:
(a) As to any Event of Default under section 7.1,
7.2, 7.3, 7.4, 7.5, 7.6, 7.8, 7.9, 7.10, 7.11 and 7.12 and at any time
thereafter, and in each case, the Agent at the request of Required Banks may,
by written notice to the Company, immediately terminate the obligation of the
Banks to make Loans hereunder and/or declare the unpaid principal balance of
the Notes, together with all interest accrued thereon, to be immediately due
and payable; and the unpaid principal balance of and accrued interest on the
Notes shall thereupon be due and payable all without presentment, demand,
protest, or further notice of any kind, all of which are hereby waived, and
notwithstanding anything to the contrary herein or in the Notes contained.
(b) As to any Event of Default under section 7.7,
the obligation of the Banks to make Loans hereunder shall immediately terminate
and the unpaid principal balance of the Notes, together with all interest
accrued thereon, shall immediately and forthwith be due and payable, all
without presentment, demand, protest, or further notice of any kind, all of
which are hereby waived, and notwithstanding anything to the contrary herein or
in the Notes contained.
(c) Upon the occurrence of any of said Events of
Default, the rights, powers and privileges provided in this Article VII and all
other remedies available to the Banks under this Agreement, the Collateral
Documents or at law or in equity may be exercised by the Agent on behalf of the
Banks at any time and from time to time, whether or not the indebtedness
evidenced by the Notes and secured by the documents required by Article III
hereof shall be due and payable, and whether or not the Agent on behalf of the
Banks shall have instituted any foreclosure sure proceedings or other action
for the enforcement of the Banks' rights under the Notes or any of the
Collateral Documents securing the same.
(d) For the purpose of carrying out the
provisions and exercising the rights, powers and privileges
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granted by this Article VII and the Collateral Documents, the Company hereby
irrevocably constitutes and appoints the Agent its true and lawful
attorney-in-fact, with full power of substitution upon the occurrence of an
Event of Default, to execute, acknowledge, endorse and deliver any instruments
and do and perform any acts which are referred to in this Article VII and the
Collateral Documents, in the name and behalf of the Company. The power vested
in each said attorney-in-fact is, and shall be deemed to be, coupled with an
interest and cannot be revoked.
(e) In the event that the Notes shall be paid in
whole or in part following acceleration of the maturity thereof while a
Eurodollar Loan is outstanding and such payment date is not the last day of an
Interest Period for such Loan, the Company shall pay to each Bank, on the date
of such accelerated Note payment, the amount required pursuant to Section 1.8
hereof.
ARTICLE VIII
THE AGENT
This Article sets forth the relative rights and duties of
Agent and Banks respecting the Loans and does not confer any enforceable rights
on the Company against Banks or create on the part of Banks any duties or
obligations to the Company. The Banks hereby terminate the Intercreditor
Agreement executed in connection with the Existing Credit Agreement.
8.1. Appointment and Powers. Each of the Banks hereby
appoints CoreStates as Agent for the Banks hereunder, and authorizes the Agent
to take such action as Agent on its behalf and to exercise such powers as are
specifically delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. The duties of the Agent shall be
entirely ministerial; the Agent shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement, the Notes or any related document, or to enforce
such performance, or to inspect the property (including the books and records)
of the Company; and the Agent shall not be required to take any action which
exposes the Agent to personal liability or which is contrary to this Agreement
or the Notes or applicable law. CoreStates agrees to act as Agent upon the
express terms and conditions contained in this Article VIII.
8.2. Application of Payments. Agent shall apply all
payments of principal, interest, commitment fee or other amounts hereunder made
to Agent by or on behalf of the Company, to Banks on the basis of their pro
rata shares of the outstanding principal balance of indebtedness hereunder,
except any Agent's fee paid in connection herewith which shall be paid solely
to
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Agent. Such distribution of payments shall be made promptly in federal funds
immediately available at the office of each Bank set forth above.
8.3. Modifications and Waivers. No modification or
amendment hereof, consent hereunder or waiver of Event of Default shall be
effective except by written consent of the Required Banks, provided, however,
that the written consent of all Banks shall be required to modify, amend,
waive, discharge, terminate or suspend compliance with any of the following
provisions or matters: (i) the rate of interest, to the extent it is proposed
to be decreased, (ii) the amount of the Commitments, and of each Bank's
respective Commitment, (iii) the dates of payment hereunder, (iv) the
commitment fee, (v) the release of any Collateral provided to the Agent on
behalf of Banks pursuant to the Collateral Documents if the Collateral to be
released is valued (based on the Company's good faith estimate) at Fifty
Thousand Dollars ($50,000) or more, and (vi) the provisions of this Paragraph
8.3. The Banks hereby agree to execute such further documents including without
limitation amendments to this Agreement and the Note(s), waivers and
certificates and deliver such opinions as the Agent and its counsel shall so
request to implement any modifications approved in accordance with the terms of
this Section 8.3. Any amendment or waiver made pursuant to this Section 8.3
shall apply to and bind all of the Banks and any future holder of any Notes. No
modification or waiver of any provision of this Agreement or any Note, nor any
consent to any departure by the Company herefrom or therefrom, shall in any
case be effective unless the same be in writing, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on Borrower in any case shall
entitle Borrower to any other or further notice or demand in any similar or
other circumstances.
8.4. Obligations Several. The obligations of the Banks
hereunder are several, and each Bank hereunder shall not be responsible for the
obligations of the other Banks hereunder, nor, will the failure of one Bank to
perform any of its obligations hereunder relieve the other Banks from the
performance of their respective obligations hereunder.
8.5. Responsibility. The Agent (i) makes no representation
or warranty to any Bank and shall not be responsible to any Bank for any oral
or written recitals, reports, statements, warranties or representations made in
or in connection with this Agreement or any Note; (ii) shall not be responsible
for the due execution, legality, validity, enforceability, genuineness,
sufficiency, collectibility or value of this Agreement or any Note or any other
instrument or document furnished pursuant thereto; (iii) may treat the payee of
any Note as the owner thereof until the Agent receives written notice of the
assignment or transfer thereof signed by such payee and in
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form satisfactory to the Agent; (iv) may execute any of its duties under this
Agreement by or through employees, agents and attorneys in fact and shall not
be answerable for the default or misconduct of any such employee, agent or
attorney in fact selected by it with reasonable care; (v) may (but shall not be
required to) consult with legal counsel (including counsel for the Company),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with advice of such counsel, accountants or experts; (vi) shall be
entitled to rely upon any Note, notice, consent, waiver, amendment,
certificate, affidavit, letter, telegram, telex, cable or other document or
communication believed by it to be genuine and signed or sent by the proper
party or parties, and may rely on statements contained therein without further
inquiry or investigation. Neither the Agent nor any of its directors, officers,
agents, or employees shall be liable for any action taken or omitted to be
taken by it or them under or in connection with this Agreement on the Notes,
except for its or their own gross negligence or willful misconduct.
8.6. Agent's Indemnification. The Banks agree to indemnify
and reimburse the Agent (to the extent not reimbursed by the Company), ratably
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent as such in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement,
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agreement in
connection with the preparation, execution, administration or enforcement of,
or the preservation, execution, administration or enforcement of, or the
preservation of any rights under, this Agreement to the extent that the Agent
is not reimbursed for such expenses by the Company.
8.7. Action on Instruction of Banks; Right to Indemnity.
Agent shall in all cases be fully protected in acting or refraining from acting
hereunder in accordance with written instructions to it signed by Required
Banks unless the consent of all the Banks is expressly required hereunder in
which case Agent shall be so protected when acting in accordance with such
instructions from all the Banks. Such instructions and any action taken or
failure to act pursuant thereto shall be binding on all the Banks, provided
that except as otherwise provided
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herein, Agent may act hereunder in its own discretion without requesting such
instructions. Agent shall be fully justified in failing or refusing to take any
action hereunder unless it shall first be specifically indemnified to its
satisfaction by the other Banks on a pro rata basis against any and all
liability and expense which it may incur by reason of taking or continuing to
take any such action.
8.8. Riqhts as a Lender. With respect to its Commitment
and the Note issued to it, CoreStates, in its individual capacity as a Bank,
shall have, and may exercise, the same rights and powers under this Agreement
and the Note payable to it as the other Bank has under this Agreement and Note,
and the terms "Bank" and "Banks", unless the context otherwise requires, shall
include CoreStates in its individual capacity as a Bank. CoreStates and its
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of banking or trust business
with, the Company, any Affiliate of the Company, or any of its subsidiaries and
any person, firm or corporation who may do business with or own securities of
the Company, such Affiliate or any subsidiary, all as if it were not the Agent,
and without any duty to account therefor to the Banks; provided, however, that
Agent hereby agrees that if it agrees to make any loan to the Company (but not
any Affiliate of the Company, or any subsidiary or any person, firm or
corporation which may do business with or own securities of the Company), and
the Company provides a security interest in its assets covered by the
Collateral Documents, that any such security interest shall be junior to the
security interests granted to Agent on behalf of Banks under the Collateral
Documents.
8.9. Credit Investigation. Each of the Banks severally
represents and warrants to the other Bank and to the Agent that it has made its
own independent investigation and evaluation of the financial condition and
affairs of the Company in connection with such Bank's execution and delivery of
this Agreement and the making of its loans and has not relied on any
information or evaluation provided by any other Bank or the Agent in connection
with any of the foregoing (other than information provided by the Company to
the Agent for transmittal to the Banks in connection with the foregoing); and
each Bank represents and warrants to the other Bank and to the Agent that it
shall continue to make its own independent investigation and evaluation of the
creditworthiness of the Company while the Commitments and/or the Notes are
outstanding.
8.10. Resiqnation, Removal of Aqent.
(a) Agent may at any time resign its position as
Agent, without affecting its position as a Bank, by giving written notice to
Banks and the Company. Such resignation shall
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take effect upon the appointment of a successor agent in accordance with this
Article. In the event Agent shall resign, Banks shall appoint a Bank as
successor agent. If within thirty (30) days of the Agent's notice of
resignation no successor agent shall have been appointed by Banks and accepted
such appointment, then Agent, in its discretion may appoint any other Bank as a
successor agent, subject to such Bank's acceptance of such appointment and to
approval by the Company, which approval will not be unreasonably withheld.
(b) All Banks other than the Agent may remove the
Agent, without affecting its position as a Bank, by giving written notice
signed by all such Banks to the Agent. Such removal shall take effect thirty
(30) business days following Agent's receipt of notice of removal. The removal
notice shall identify the successor Agent (which shall be a Bank, or shall have
been approved by Company).
8.11. Successor Agent. The successor Agent appointed
pursuant to Paragraph 8.10 shall execute and deliver to its predecessor and
Banks an instrument in writing accepting such appointment, and thereupon such
successor, without any further act, deed or conveyance, shall become fully
vested with all the properties, rights, duties and obligations of its
predecessor Agent. The predecessor Agent shall deliver to its successor Agent
forthwith all collateral security, documents and moneys held by it as Agent, if
any, whereupon such predecessor Agent shall be discharged from its duties and
obligations as Agent under this Agreement.
8.12. Collateral Security. Agent will hold, administer and
manage any collateral security pledged from time to time hereunder either in
its own name or as Agent, but each Bank shall hold a direct, undivided pro rata
beneficial interest therein, by reason of and as evidenced by this Agreement.
8.13. Enforcement by Agent. All rights of action under this
Agreement and under the Notes and all rights to the collateral security, if
any, hereunder may be enforced by Agent and any suit or proceeding instituted
by Agent in furtherance of such enforcement shall be brought in its name as
Agent without the necessity of joining as plaintiffs or defendants any other
Banks, and the recovery of any judgment shall be for the benefit of Banks
subject to the expenses of Agent.
ARTICLE IX
MISCELLANEOUS
9.1. Accounting Terms; Definitions. Except as otherwise
provided, all accounting terms shall be construed in
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accordance with generally accepted accounting principles consistently applied,
and financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles. As used herein:
(a) "Adjusted Cash Flow" means, for any fiscal
quarter, Cash Flow for such quarter plus Management Fees and Home Office
Allocations deducted in calculating Cash Flow for such quarter, but which are
deferred and not paid to JII during such quarter less Management Fees and Home
Office Allocations which were deferred in a prior quarter but which are
actually paid to JII in such quarter to the extent not deducted in calculating
Cash Flow for such quarter.
(b) "Affiliate" means any person, firm,
corporation or partnership, which, directly or indirectly, controls, is
controlled by, or is under common control with, the Company or a Subsidiary.
(c) "Applicable Margin" shall mean (a) in the
absence of a Default or Event of Default, during any quarter when the ratio of
the Company's Total Debt on the last day of the most recently-ended quarter to
Borrower's Operating Cash Flow as of the last day of the most recently-ended
quarter is less than 3.5 to 1, (i) one quarter of percent (1/4%) per annum with
respect to Prime Rate Loans and (ii) one and one quarter of one percent (1/4%)
per annum with respect to Eurodollar Loans; and (b) at all other times
(except upon the occurrence and during the continuation of Default or Event of
Default), (i) one half of one percent (1/2%) per annum with respect to the Prime
Rate Loans, and (ii) one and one half percent (1-1/2%) per annum with respect to
Eurodollar Loans. The Applicable Margin shall be determined quarterly by Agent
within five (5) days of the receipt by Agent of the financial statements
required to be delivered by the Company pursuant to Section 6.6 (a) or (b)
hereof, as applicable, and shall be effective retroactively to the first day of
the quarter following the quarter by reference to which such Applicable Margin
was calculated, and shall remain in effect until the next quarterly
determination of the Applicable Margin by Agent.
(d) "Bank" shall mean individually and "Banks"
shall mean individually and collectively, the banks or other financial
institutions party to this Agreement at any time of determination and their
respective successors and assigns, being, CoreStates, First Maryland, Dresdner
and Continental on the date hereof.
(e) "Base Rate" means the higher of (a) the
Federal Funds Rate plus one half of one percent (1/2%) per annum or (b) the
Prime Rate.
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(f) "Basic Subscribers" means the subscribers in
the CATV Systems who (a) are currently receiving cable television signals
supplied by the Company; (b) have commenced payment for such signals at the
standard monthly fees and charges for "basic service" (as such term is commonly
understood in the cable television industry) charged by the Company, directly
or indirectly, under subscriptions with the Company; and (c) are not 60 or more
days delinquent in payments as determined on a contractual basis.
(g) "Business Day" means a day other than (i) a
Saturday, Sunday or a day on which national banks or banks located in the
Commonwealth of Pennsylvania are permitted or required by law to close or (ii)
in respect to any Eurodollar Loan, a day on which the London interbank market
is closed.
(h) "Capitalized Lease" means any lease which is
capitalized on the books of the lessee, or should be so capitalized under
generally accepted accounting principles.
(i) "Cash Flow" means, for any fiscal quarter,
total revenues of the Company for such quarter, determined and consolidated in
accordance with generally accepted accounting principles less the sum of (i)
operating expenses of the Company for such quarter (including but not limited
to Management Fees and Home Office Allocations) and (ii) general and
administrative expenses of the Company for such quarter, in each case
determined and consolidated in accordance with generally accepted accounting
principles.
(j) "Controlled Group" means a controlled group
of corporations as defined in Section 1563 of the Internal Revenue Code of
1986, as amended, of which the Company is a part.
(k) "Debt Service" for any period means all
amounts which are required to be paid on indebtedness of the Company during
such period, including, without limitation all payments of principal and
interest and all payments under Capitalized Leases.
(l) "Default" means any event or circumstance
which, with the giving of notice or the passage of time or both, would
constitute an Event of Default.
(m) "Environmental Control Statutes" shall mean
all federal, state and local laws and regulations governing the control,
removal, spill, release or discharge of hazardous or toxic wastes or
substances, pollutants, contaminants, or petroleum products, as in effect from
time to time, including without limitation as provided in the provisions of and
the regulations under the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"), the Solid Waste
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Disposal Act, the Clean Water Act, the Clean Air Act, the Resource Conservation
and Recovery Act of 1976, the Federal Water Pollution Control Act Amendments of
1972, the Hazardous Materials Transportation Act, and the Occupational Safety
and Health Act, and the Occupational Safety and Health Act, and all amendments
to the foregoing.
(n) "ERISA" means the Employee Retirement Income
Security Act of 1974, as the same may be in effect from time to time.
(o) "Eurodollar Loan" means the portion of a Loan
bearing interest at the rate specified in section 1.6(b).
(p) "Federal Funds Rate" means, for any day, the
effective rate of interest for such day, as announced from time to time by the
Board of Governors of the Federal Reserve System as shown in publication H.15
as the "Federal Funds Rate."
(q) "Gross Operating Revenues" means, for any
period for which such sum is being computed, the sum of all payments made to
the Company by subscribers in the CATV Systems, and all other revenues and
receipts realized by the Company from the operation of its businesses during
such period.
(r) "Home Office Allocations" means, for any
period for which such sum is being computed, the amount of reimbursement
payable by the Company to JII for general overhead and administrative expenses
of JII allocated to the Company pursuant to paragraph 4 of Article VII of the
Joint Venture Agreement (computed by JII consistently with respect to all
partnerships of which it or a Subsidiary or Affiliate is a general partner or
with which it is otherwise affiliated and payment of which shall be subject to
all the terms and provisions of this Agreement and the Subordination
Agreement).
(s) "LIBO Rate" means, for each Interest Period
for each Eurodollar Loan, the annual rate of interest obtained by dividing (i)
the average rate of interest (rounded upward, if necessary, to the nearest
1/1Oth of 1%) at which deposits in U.S. dollars are offered to prime banks in
the London interbank market at 11 a.m. (London time) two Business Days prior to
the commencement of the applicable Eurodollar Loan Interest Period for a term
equal to such Interest Period and in an amount approximately equal to the
principal amount of the applicable Eurodollar Loan, as reflected on the
Telerate electronic communications terminals in Agent's money center by (ii) a
percentage, expressed as a decimal, equal to 100% minus the reserve percentage
applicable to Agent during such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System for
determining the reserve requirements for Agent with respect to Eurocurrency
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Liabilities (as defined in Regulation D) having a term equal to such Interest
Period (including without limitation any marginal, supplemental, special or
other reserves which Agent, in its discretion, determines must be maintained
pursuant to applicable laws and regulations).
(t) "Loan" means a loan made to the Company by
any Bank pursuant to Article I of this Agreement.
(u) "Management Fees" means, for each period for
which such sum is being computed, management fees payable by the Company to JII
pursuant to Article VII, Section 3 of the Joint Venture Agreement, which fees
shall be calculated and payable monthly (payment of which shall be subject to
all of the terms and provisions of this Agreement and the Subordination
Agreement).
(v) "Operating Cash Flow" means the result of (i)
the sum of net income, interest expense, depreciation expense, amortization
expense, losses on sales of assets, extraordinary losses, Management Fees, Home
Office Allocations, and other non-cash charges to income; less (ii) interest and
dividend income, gains on the sale of assets, extraordinary gains and other
non-cash components of income, all for the immediately preceding fiscal quarter
of the company multiplied time four (4).
(w) "Permitted Liens" means:
(i) liens for taxes, assessments or
governmental charges, and liens incident to construction, which are either not
delinquent or are being contested in good faith by the Company by appropriate
proceedings which will prevent foreclosure of such liens, and against which
adequate reserves have been provided; and zoning restrictions, easements,
restrictions, minor title irregularities and similar matters which have no
adverse effect as a practical matter upon the ownership and use of the affected
property by the Company;
(ii) liens or deposits in connection with
worker's compensation or other insurance or to secure customs' duties, public
or statutory obligations in lieu of surety, stay or appeal bonds, or to secure
performance of contracts or bids (other than contracts for the payment of money
borrowed), or deposits required by law or governmental regulations or by any
court order, decree, judgment or rule as a condition to the transaction of
business or the exercise of any right, privilege or license; or other liens or
deposits of a like nature made in the ordinary course of business;
(iii) liens or security interests in favor
of the Banks securing the indebtedness and other obligations of the
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Company to the Banks under or in connection with this Agreement, the Notes and
the Collateral Documents;
(iv) purchase money liens and security
interests in favor of sellers or lessors securing indebtedness or obligations
incurred to acquire or lease fixed or capital assets permitted under clause
(ii) of Section 5.1 of this Agreement (and extension, renewal and replacement
liens upon the same property provided the principal amount secured by each such
lien constituting such extension, renewal or replacement shall not exceed the
principal amount secured by the liens theretofore existing), each such purchase
money lien and security interest to attach only to the specific property the
purchase or lease of which gives rise to the indebtedness or obligation secured
thereby;
(v) In the case of land in which the
Company has a leasehold estate and in the case of any buildings, other
structures or fixtures located on such land, the right, title and interest of
the landlord under the lease creating the leasehold, and in the case of land in
which the Company has a license to construct, own and operate buildings,
fixtures and equipment on such land, the right of the licensor with respect to
such land, provided that such landlord or licensor shall have executed fixtures
disclaimers and attornment agreements if so requested by Agent; and
(vi) liens securing judgments not in
excess of $100,000 in the aggregate arising from legal proceedings, so long as
such proceedings are being contested in good faith by appropriate proceedings
diligently conducted and so long as execution is stayed on all judgments
resulting from any such proceedings.
(x) "Note" and "Notes" shall have the meanings
set forth in Section 1.1 of the Credit Agreement.
(y) "Plan" means any employee pension benefit
plan subject to Title IV of ERISA maintained by the Company, any of its
Subsidiaries, or any member of the Controlled Group, or any such plan to which
the Company, any of its Subsidiaries, or any member of the Controlled Group is
required to contribute on behalf of any of its employees.
(z) "Prime Rate" means the rate of interest
announced by Agent from time to time as its prime rate.
(aa) "Prime Rate Loan" shall mean portion of a
Loan bearing interest at the rate specified in section 1.6(a).
(ab) "Proforma Interest Expense" means, for any
twelve month period, Total Debt as of the first day of such
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period, multiplied by the applicable interest rate (which, in the case of the
Loan, shall be calculated based upon the Base Rate or LIBO Rate or Rates in
effect at the date of calculation, plus the Applicable Margin also in effect at
the date of calculation).
(ac) "pro rata" or "ratably" or for the "ratable"
benefit of Banks throughout the Credit Agreement shall mean and be a reference
to each Bank's pro rata share of the Loans on the date of determination based
on the ratio of the principal amount of the Loans outstanding in favor of such
Bank to the aggregate principal amount of Loans outstanding, or, if no Loans
are outstanding, based on the amount of such Bank's Commitment to the aggregate
amount of Commitments of all Banks.
(ad) "Reportable Event" means a reportable event
as that term is defined in Title IV of ERISA.
(ae) "Required Banks" means Banks whose
outstanding Loans equal sixty-six and two-thirds percent (66.2/3%) or more of
the aggregate amount of the Loans, or, if no Loans are outstanding, Banks whose
Commitments equal sixty-six and two-thirds percent (66 2/3%) or more of the
Commitments.
(af) "Restricted Payments" means redemptions,
repurchases, dividends and distributions of any kind in respect of partnership
or joint venture interests in the Company, any payments of principal and
interest on indebtedness to JII subordinated to indebtedness to the Banks
pursuant to the Subordination Agreement.
(ag) "Security Agreement" shall mean the Security
Agreement described in Section 3.3 of this Agreement, as it may be amended,
restated, supplemented or modified from time to time.
(ah) "Subordination Agreement" shall mean the
Subordination Agreement described in Section 3.2 of this Agreement, as it may
be amended, restated, supplemented or modified from time to time.
(ai) "Subsidiary" means a corporation of which the
Company owns, directly or through another Subsidiary, at the date of
determination, more than 50% of the outstanding stock or capital interests
having ordinary voting power for the election of directors, irrespective of
whether or not at such time stock or capital interests of any other class or
classes might have voting power by reason of the happening of any contingency.
(aj) "Termination Date" shall have the meaning
set forth in Section 1.1 of this Agreement.
(ak) "Total Debt" means the sum of all obligations
for borrowed money, all payments required under non-compete
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agreements, capital lease obligations, amounts required under installment sale
purchases, all debt or other financial obligations of others guaranteed by the
Company, and any amounts for which the Company is contingently liable to
provide as equity or debt advances to other parties; provided, however, that
Total Debt shall exclude all Management Fees and Home Office Allocations
accrued but not paid and all advances made by JII to the Company, provided,
however, that such Management Fees and advances are expressly subordinated to
indebtedness of the Company to the Banks under the Credit Agreement pursuant to
the Subordination Agreement.
9.2. Expenses and Attorneys' Fees. The Company shall be
responsible for the payment of all fees and out-of-pocket disbursements
incurred by the Banks in connection with the preparation, execution, delivery,
administration and enforcement of this Agreement, the Collateral Documents and
the Notes, including all costs of collection, and including without limitation
the reasonable fees and disbursements of counsel for each of the Banks, whether
or not any transaction contemplated by this Agreement is consummated.
9.3. Securities Act of 1933. Each of the Banks represents
that it is acquiring the Note payable to it without any present intention of
making a sale or other distribution of such Note, provided that each Bank
reserves the right to sell the Note payable to it or participations therein.
Notwithstanding the foregoing, each Bank agrees that it will not sell or assign
the Note payable to it, its rights under this Agreement, or participations
therein, in whole or in part, to any party other than one or more banks which
are affiliated with such Bank by reason of their being subsidiaries of the
present holding company of such Bank.
9.4. Successors. The provisions of this Agreement shall
inure to the benefit of any holder of each Note, and shall inure to the benefit
of and be binding upon any successor to any of the parties hereto. No delay on
the part of either Bank or any holder of any Note in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein specified are cumulative and are not
exclusive of any rights or remedies which the Banks or the holders of the Notes
would otherwise have.
9.5. Survival. All agreements, representations and
warranties made herein shall survive the execution of this Agreement, the
making of the loans hereunder and the execution and delivery of the Notes.
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9.6. Pennsylvania Law; Amendment. This Agreement and the
Notes issued hereunder shall be governed by and construed in accordance with
the internal laws of the Commonwealth of Pennsylvania. This Agreement
constitutes the entire agreement of the parties as to the subject matter
hereof, and no modification, waiver or amendment shall be effective unless made
in a writing signed by the appropriate officers of the parties hereto.
9.7. Counterparts. This Agreement may be signed in any
number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument.
9.8. Notices. All communications or notices required under
this Agreement shall be deemed to have been given on the date received if sent
by telecopy or overnight courier service, and, if mailed, on the fifth day
after deposited in the United States mail, postage prepaid, and addressed as
follows (unless and until any of such parties advises the other in writing of a
change in such address): (a) if to the Company, with the full name and address
of the Company as shown on this Agreement below; and (b) if to a Bank with the
full name and address of such Bank as shown on this Agreement below, to the
attention of the officer of such Bank executing the form of acceptance of this
Agreement.
9.9. Limitation on Recourse to Partners. Anything
contained in this Agreement or the other Collateral Documents to the contrary
notwithstanding, in any action or proceeding brought on any Note, or on any of
the Collateral Documents or the indebtedness evidenced or secured thereby, no
deficiency judgment shall be sought or obtained against JII, the Partnerships
or any limited partner of the Partnerships or enforced against the separate
assets of JII, the Partnerships or any limited partner of the Partnerships, and
the liability of JII, the Partnerships and such limited partners for any
amounts due under the Notes, this Agreement or under the Collateral Documents
shall be limited to the interest of JII, the Partnerships or any limited
partner of the Partnerships in the collateral described in the Collateral
Documents and their interests in any other assets of the Company. The Banks may
join any present or future partners or joint venturers of the Company, in their
capacities as general partners or joint venturers, as defendants in any legal
action it undertakes to enforce its rights and remedies under this Agreement,
the Notes and under the Collateral Documents, but any judgment in any such
action may be satisfied by recourse only to the security provided for in the
Collateral Documents and the other assets of the Company, but not by recourse
directly to or by execution on the separate assets of JII, the Partnerships or
any limited partners of the Partnerships. Notwithstanding the foregoing, (i)
nothing set forth herein shall be deemed to prohibit the Banks from taking any
legal action(s) against JII or its assets arising out of JII's undertakings
under the Subordination Agreement or arising by reason of any fraud or
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intentional misconduct of JII or the Partnerships and (ii) in the event that at
any time the Company is not a validly existing legal entity, then the Banks
shall have recourse to any and all assets (A) described in any financial
statement of the Company delivered to Banks, (B) represented to Banks at any
time as being owned by the Company and (C) that would have been owned by the
Company if it had existed, and all proceeds of the foregoing.
9.10. Indemnification and Release Provisions. The Company
hereby agrees to defend Agent and each Bank and their directors, officers,
agents, employees and counsel from, and hold each of them harmless against, any
and all losses, liabilities (including without limitation settlement costs and
amounts, transfer taxes, documentary taxes, or assessments or charges made by
any governmental authority), claims, damages, interests, judgments, costs, or
expenses, including without limitation reasonable fees and disbursements of
counsel, incurred by any of them arising out of or in connection with or by
reason of this Agreement, the Commitments, the making of the Loans, or any
Collateral Document, or any amendment, waiver or modification with respect
thereto, including without limitation, any and all losses, liabilities, claims,
damages, interests, judgments, costs or expenses relating to or arising under
any Environmental Control Statute or the application of any such Statute to any
of the Company's properties or assets except with respect to such Bank's or
Agent's (as the case may be) own gross negligence or willful misconduct. The
Company hereby releases Agent and each Bank and their respective directors,
officers, agents, employees and counsel from any and all claims for loss,
damages, costs or expenses caused or alleged to be caused by any act or
omission on the part of any of them except with respect to such Bank's or
Agent's (as the case may be) own gross negligence or willful misconduct. All
obligations provided for in this Section 9.10 shall survive any termination of
this Agreement or the Commitments and the repayment of the Loans.
9.11. Participations and Assignments. The Company hereby
acknowledges and agrees that a Bank may at any time: (a) grant participations
in all or any portion of its Loans or Note or of its right, title and interest
therein or in or to this Agreement (collectively, "Participations") to any
other lending office or to any other bank, lending institution or other entity
which has the requisite sophistication to evaluate the merits and risks of
investments in Participations ("Participants"); provided, however, that: (i)
all amounts payable by the Company hereunder shall be determined as if such
Bank had not granted such Participation; and (ii) any agreement pursuant to
which any Bank may grant a Participation: (x) shall provide that such Bank
shall retain the sole right and responsibility to enforce the obligations of
the Company hereunder including, without limitation, the right to approve any
amendment, modification or
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47
waiver of any provisions of this Agreement; (y) such participation agreement
may provide that such Bank will not agree to any modification, amendment or
waiver of this Agreement without the consent of the Participant if such
modification, amendment or waiver would reduce the principal of or rate of
interest on the Loans or postpone the date fixed for any payment of principal
of or interest on the Loan; and (z) shall not relieve such Bank from its
obligations, which shall remain absolute, to make Loans hereunder; and (b)
assign, with the prior written consent of the Agent and notice to the Company,
together with the payment to the Agent of a $1,500 transfer fee, up to
forty-nine percent (49%) of its Loans and Commitment.
IN WITNESS WHEREOF, the undersigned by their duly authorized
officers, have executed this Amended and Restated Revolving Credit Agreement
the day and year first written above.
JONES CABLE INCOME FUND I-B/C
VENTURE, a Colorado joint
venture general partnership
BY: Jones Cable Income Fund I-B,
Ltd., a general partner
BY: Jones Cable Income Fund I-C,
Ltd, a general partner
Attest: By: Jones Intercable, Inc.,
their general partner
By: /s/ KATHERINE A. LEVOY By: /s/ KEVIN P. COYLE
Katherine A. Levoy Kevin P. Coyle
Title: Asst. Secretrary Title: Treasurer
[CORPORATE SEAL] CORESTATES BANK, N.A., for itself
and as Agent for the Banks
By: /s/ Geoffrey M. Boyd
Title: Assistant Vice President
FIRST NATIONAL BANK OF MARYLAND
By: /s/ John L. Brunch
Title: Vice President
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DRESDNER BANK AG, NEW YORK BRANCH
By: /s/ R. MATTHEW SCHERER
R. Matthew Scherer
Title: Vice President
By: /s/ CHARLES H. HILL
Charles H. Hill
Title: Vice President
CONTINENTAL BANK
A DIVISION OF MIDLANTIC
BANK, N.A.
By: /s/ JOSEPH E. DONAHUE, III
Joseph E. Donahue, III
Title: Senior Vice President
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