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$25,000,000
CREDIT AGREEMENT
DATED AS OF FEBRUARY 28, 1995
AMONG
CABLE TV FUND 11-B, LTD.
AS THE BORROWER
AND
VARIOUS FINANCIAL INSTITUTIONS
AS THE LENDERS,
AND
SHAWMUT BANK CONNECTICUT, N.A.,
AS AGENT FOR THE LENDERS
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 28, 1995, is made among
CABLE TV FUND 11-B, LTD., a Colorado limited Partnership (the "Borrower"), the
various financial institutions as are or may become parties hereto
(collectively, the "LENDERS"), and SHAWMUT BANK CONNECTICUT, N.A. ("SHAWMUT"),
as agent for the Lenders (in such capacity, the "AGENT").
W I T N E S S E T H:
WHEREAS, the Borrower is currently the obligor under that certain
$25,000,000 Loan Agreement, dated as of March 31, 1992 (as amended, restated or
otherwise modified prior hereto, the "EXISTING CREDIT AGREEMENT"), between the
Borrower and Shawmut.
WHEREAS, the Borrower desires to obtain Loans from the Lenders to:
(i) repay, in full, all of the loans outstanding
under the Existing Credit Agreement;
(ii) finance certain working capital requirements
of the Borrower; and
(iii) subject to Section 7.2.7 and the
Subordination Agreement, from time to time to repay advances
made by the General Partner to the Borrower; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth, to extend such Loans to the Borrower.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. The following terms when used in
this Agreement, including its preamble and recitals, shall, except
where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural
forms thereof):
"AFFILIATE" means, with respect to any Person, any other
Person which, directly or indirectly, controls, is controlled by or is
under common control with, such Person (excluding any trustee under,
or any committee with responsibility for administering, any Plan). A
Person shall be deemed to "control" another Person if such Person
possesses, directly or indirectly, the power
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(a) to vote 10% or more of the securities of such
other Person (on a fully diluted basis) having ordinary voting
power for the election of directors or managing general partners
or
(b) to direct or cause the direction of the
management and policies of such other Person whether by contract
or otherwise.
"AGENT" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor
Agent pursuant to Section 9.4.
"AGENT'S FEE LETTER" means that certain confidential fee
letter, dated of even date herewith, from Shawmut to the Borrower
relating to the payment of Agent fees in connection with this
Agreement.
"AGREEMENT" means, on any date, this Credit Agreement as
originally in effect on the Effective Date and as thereafter from time
to time amended, restated or otherwise modified and in effect on such
date.
"ALLOCATED OVERHEAD" means, for any period, the fees payable
(without regard to the Borrower's right to defer or limit actual
payment) to the General Partner to compensate the General Partner for
that portion of its general overhead and administrative expenses,
including all of its direct and indirect expenses, allocable to the
operation of the Borrower's business, including, but not limited to,
home office rent, supplies, telephone, travel and copying charges, and
salaries of full and part-time employees.
"ALTERNATE BASE RATE" means, on any date and with respect to
all Base Rate Loans, a fluctuating rate of interest per annum equal to
the higher of
(a) the rate of interest most recently established
by the Agent at its Domestic Office as its base rate for Dollar
loans and
(b) the Federal Funds Rate most recently determined
by the Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the
lowest rate of interest determined by the Agent in connection with
extensions of credit. Changes in the rate of interest on that portion
of any Loans maintained as Base Rate Loans will take effect
simultaneously with each change in the Alternate Base Rate. The Agent
will give notice promptly to the Borrower and the Lenders of changes in
the Alternate Base Rate.
"ANNUALIZED CASH FLOW" means, at any time, Cash Flow for the
immediately preceding Fiscal Quarter times four.
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"APPLICABLE MARGIN" means, at any time during which the
Borrower's Leverage Ratio falls within the ranges set forth below, the
amounts set forth below opposite such ranges for each type of Loans:
Applicable Margin LIBO
Leverage Ratio Base Rate Loans Rate Loans
-------------- --------------- ----------
4.00:1 or greater 0.50% 1.375%
3.00:1 or greater but less
than 4.00:1 0.25% 1.125%
less than 3.00:1 0.00% 1.00%
"ASSIGNEE LENDERS" is defined in Section 10.11.1.
"AUTHORIZED OFFICER" means those officers of the General
Partner whose signatures and incumbency shall have been certified to
the Agent and the Lenders pursuant to Section 5.1.1.
"BASE RATE LOAN" means a Loan bearing interest at a
fluctuating rate determined by reference to the Alternate Base Rate.
"BASIC PENETRATION RATE" means, at any time, a percentage
derived from a fraction, the numerator of which is the number of Basic
Subscribers at such time, and the denominator of which is the number
of Homes Passed at such time.
"BASIC SUBSCRIBER RATE" means the minimum standard monthly
fees and charges for "basic service" (as such term is commonly
understood in the cable television industry) charged to customers of
the Cable Systems.
"BASIC SUBSCRIBERS" means, at any time, the total number of
subscribers subscribing to the Cable Systems (excluding "second
connections" as such term is commonly understood in the cable
television industry) who (i) pay the Basic Subscriber Rate for
service, and (ii) are not more than 60 days past due in payment. In
the case of commercial buildings, such as hotels or motels, or in the
case of multiple residential dwellings, such as apartment houses and
multifamily homes, which do not obtain reduced bulk service rates,
each separate guest unit or dwelling unit receiving such services
shall be counted as one subscriber. The number of subscribers in a
commercial building or in a multiple residential dwelling which
obtains a reduced bulk service rate shall be obtained by dividing (x)
the aggregate dollar amount of monthly subscribers' fees paid on
account of such commercial building or multiple residential dwelling
for basic service by (y) the Basic Subscriber Rate. Except for
(Discounts to senior citizens less than 20% of the otherwise
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applicable rate, residential households (other than in a multiple
residential dwelling) paying the Basic Subscriber Rate on a discounted
basis or under any form of deferred payment arrangement shall not be
included.
"BORROWER" is defined in the Preamble.
"BORROWING" means the Loans of the same type and, in the case
of LIBO Rate Loans, having the same Interest Period, made by all
Lenders on the same Business Day and pursuant to the same Borrowing
Request in accordance with Section 2.3.
"BORROWING REQUEST" means a loan request and certificate duly
executed by an Authorized Officer, substantially in the form of
Exhibit B hereto.
"BUSINESS DAY" means
(a) any day which is not a Saturday, a Sunday or
a day on which banks are authorized or required by law to be
closed in New York City, New York or Hartford, Connecticut;
and
(b) relative to the making, continuing, prepaying
or repaying of any LIBO Rate Loans, any day on which dealings
in Dollars are carried on in the London interbank market.
"CABLE FRANCHISES" is defined in Section 6.15.
"CABLE SCHEDULE" means the Cable Schedule attached hereto as
Schedule II, as it may be amended, supplemented or otherwise modified
from time to time by the Borrower with the written consent of the
Agent.
"CABLE SYSTEM" means the assets constituting a CATV or SMATV
system (including, without limitation, all related licenses,
franchises and permits issued under federal, state or local laws from
time to time, and all agreements with public utilities and microwave
transmission companies, pole attachment, use, access or rental
agreements, conduit occupancy rights, utility easements and all other
property owned or used in connection with the services provided
pursuant to, and all other interests of the holder thereof to receive
revenues from, or pursuant to, said licenses, franchises and permits)
listed on the Cable Schedule and all assets constituting such a system
hereafter acquired by the Borrower serving subscribers within a
geographical area covered by one or more Franchises from the same Head
End facility or by two or more related Head End facilities.
"CAPITAL EXPENDITURES" means, for any period, the sum of
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(a) the aggregate amount of all expenditures of
the Borrower and its Subsidiaries for fixed or capital assets
made during such period which, in accordance with GAAP, would
be classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease
Liabilities incurred during such period.
"CAPITALIZED LEASE LIABILITIES" means all monetary obligations
of the Borrower or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Agreement
and each other Loan Document, the amount of such obligations shall be
the capitalized amount thereof, determined in accordance with GAAP,
and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without
payment of a penalty.
"CASH EQUIVALENT INVESTMENT" means, at any time:
(a) any evidence of Indebtedness, maturing not
more than one year after such time, issued or guaranteed by
the United States Government;
(b) commercial paper, maturing not more than nine
months from the date of issue, which is issued by:
(i) a corporation (other than an
Affiliate of the Borrower) organized under the laws
of any state of the United States or of the District
of Columbia and whose long-term debt is rated at
least A-1 by Standard & Poor's Corporation or P-1 by
Moody's Investors Service, Inc.; or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers
acceptance maturing not more than one year after such time,
which is issued by either:
(i) a commercial banking institution
that is a member of the Federal Reserve System and
has combined capital, surplus and undivided profits
of not less than $1,000,000,000; or
(ii) any Lender; or
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(d) any repurchase agreement entered into with
any Lender (or any other commercial banking institution of the
stature referred to in clause (c) (i)) which:
(i) is secured by a fully perfected
security interest in any obligation of the type
described in any of clauses (a) through (c); and
(ii) has a market value at the time such
repurchase agreement is entered into of not less than
100% of the repurchase obligation of such Lender (or
other commercial banking institution) thereunder.
"CASH FLOW" means, for any period, total consolidated
operating revenues of the Borrower for such period, less the sum of
(i) consolidated operating expenses of the Borrower for such period
and (ii) general and administrative expenses of the Borrower for such
period (excluding Management Fees and Allocated Overhead for such
period, if any, included in clauses (i) and (ii)).
"CATV" means community antenna television.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CHANGE IN CONTROL" means the occurrence of either or both of
the following:
(a) the failure of Jones Intercable to own, free
and clear of all Liens or other encumbrances, 100% of the
outstanding general partnership interests in the Borrower
other than the Liens described in Section 6.l(e) or similar
Liens which would be incurred in any refinancing of Jones
Intercable's debt; or
(b) the failure of Jones Intercable to be the
sole general partner of the Borrower; provided, however, that
if Jones Intercable ceases to be the sole general partner of
the Borrower but within ninety (90) days thereafter a
replacement general partner acceptable to the Required Lenders
in their sole discretion shall have been appointed, then no
Change in Control shall be deemed to have occurred.
"CLOSING DATE CERTIFICATE" means a certificate of the General
Partner, substantially in the form of Exhibit L hereto.
"CODE" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
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"COMMITMENT" means, relative to any Lender, such Lender's
obligation to make Revolving Loans pursuant to Section 2.1.1.
"COMMITMENT AMOUNT" means an amount equal to $25,000,000, as
such amount may be reduced from time to time, pursuant to Section 2.2.
"COMMITMENT TERMINATION DATE" means the earliest of:
(a) the Conversion Date;
(b) the date on which the Commitment Amount is
terminated in full or reduced to zero pursuant to Section 2.2;
and
(c) the date on which any Commitment Termination
Event occurs.
Upon the occurrence of any event described in clause (b) or
(c), the Commitments shall terminate automatically and without any
further action.
"COMMITMENT TERMINATION EVENT" means:
(a) the occurrence of any Default described in
clauses (a) through (d) of Section 8.1.8 with respect to the
Borrower or any Subsidiary of the Borrower; or
(b) the occurrence and continuance of any other
Event of Default and either:
(i) the declaration of the Loans to be
due and payable pursuant to Section 8.3; or
(ii) in the absence of such declaration,
the giving of notice by the Agent, acting at the
direction of the Required Lenders, to the Borrower
that the Commitments have been terminated.
"COMMUNICATIONS ACT" means the Communications Act of 1934 and
the rules and regulations issued thereunder, as amended, reformed or
otherwise modified from time to time.
"COMPLIANCE CERTIFICATE" means a certificate duly executed by
an Authorized Officer, substantially in the form of Exhibit K hereto.
"CONTINGENT LIABILITY" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to
supply funds to,
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or otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) any indebtedness, obligation or other liability of any
other Person (other than by endorsements of instruments in the course
of collection), or guarantees the payment of dividends or other
distributions upon the securities or other equity interests of any
other Person. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth
therein) be deemed to be the outstanding principal amount (or maximum
principal amount, if larger) of the debt, obligation or other
liability guaranteed thereby.
"CONTINUATION\CONVERSION NOTICE" means a notice and
certificate duly executed by an Authorized Officer, substantially in
the form of Exhibit C hereto.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all members of a controlled group of trades or
businesses (whether or not incorporated) under common control which,
together with the Borrower, are treated as a single employer under
Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.
"CONVERSION DATE" means January 1, 1997.
"CONVERSION DATE AMOUNT" is defined in Section 3.1.
"DEBT SERVICE" means, for any period, the amount of principal
and Interest Expense, together with fees associated therewith of the
Borrower and its Subsidiaries in respect of Indebtedness paid or
scheduled to be paid during such period. For purposes of this
definition "principal" shall include the principal component of
payments for such period in respect of Capitalized Lease Liabilities.
"DEFAULT" means any Event of Default or any condition,
occurrence or event which, after notice or lapse of time or both,
would constitute an Event of Default.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented or otherwise
modified from time to time by the Borrower with the written consent of
the Agent.
"DOLLAR" and the sign "$" mean lawful money of the United
States.
"DOMESTIC OFFICE" means, relative to any Lender, the office of
such Lender designated as such below its signature hereto or, if
applicable, designated in such Lender's Lender Assignment Agreement,
or such other office of a Lender (or any successor or assign of such
Lender) within the United States as may be designated from time to
time by notice from such
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Lender, as the case may be, to the Borrower and the Agent. A Lender
may have separate Domestic Offices for purposes of making, maintaining
or continuing, as the case may be, Base Rate Loans.
"EFFECTIVE DATE" means the date this Agreement becomes
effective pursuant to Section 10.8.
"ENVIRONMENTAL LAWS" is defined in Section 6.12.
"ERISA" means the Employee Retirement Income Security Act of
1974, and the rules and regulations issued thereunder, as amended,
reformed or otherwise modified from time to time. References to
sections of ERISA also refer to any successor sections.
"EVENT OF DEFAULT" is defined in Section 8.l.
"EXCESS CASH FLOW" means, for any period, an amount (if
positive) equal to (a) Cash Flow for such period less (b) cash
payments for all taxes paid by the Borrower during such period, less
(c) Capital Expenditures made during such period, less (d) scheduled
payments of principal of Indebtedness during such period, less (e) all
Interest Expense paid during such period, less (f) any General Partner
Advances repaid by the Borrower in cash during such period and which
are permitted under the terms of this Agreement and the other Loan
Documents..
"EXISTING CREDIT AGREEMENT" is defined in the first recital.
"FCC" means the Federal Communications Commission or any
successor agency thereto performing functions similar to those
performed by the Federal Communications Commission on the date hereof.
"FCC LICENSE" means any license or permit issued by the FCC,
including, without limitation, licenses issued in connection with the
operation of CATV or SMATV systems, community antenna relay systems,
microwave systems, earth stations and business and other two-way
radios.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to:
(a) the weighted average of the rates on
overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day,
for the immediately preceding Business Day) by the Federal
Reserve Bank of New York; or
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(b) if such rate is not so published for any day
which is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three
federal funds brokers of recognized standing selected by it.
"FEE LETTER" means that certain fee letter, dated of even date
herewith from Shawmut to the Borrower relating to the payment of
facility fees in connection with this Agreement.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive calendar
months ending on December 31; references to a Fiscal Year with a
number corresponding to any calendar year (e.g., the "1994 Fiscal
Year") refer to the Fiscal Year ending on the December 31 occurring
during such calendar year.
"FIXED CHARGE COVERAGE RATIO" means, at any time of
determination, the ratio, computed on a consolidated basis of:
(a) the sum of:
(i) cash on the consolidated balance
sheet of the Borrower at the beginning of the
immediately preceding Fiscal Quarter; plus
(ii) Annualized Cash Flow; to
(b) the sum for the twelve calendar month period
ending on the last day of the immediately preceding Fiscal
Quarter of:
(i) Interest Expense; plus
(ii) all scheduled payments of principal
of Indebtedness of the Borrower and its Subsidiaries
whether or not paid; plus
(iii) Capital Expenditures; plus
(iv) all state, local and federal income
taxes paid or payable in cash.
"FRANCHISE" means any franchise, permit, license or other
authorization granted by any Official Body, including all laws,
regulations and ordinances relating thereto, for the construction,
operation and maintenance of a CATV or SMATV system and the reception
and transmission of signals by microwave, and shall include, without
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limitation, all FCC Licenses and all certificates of compliance and
cable television registration statements which are required to be
issued by or filed with the FCC.
"FRANCHISE AGREEMENT" means any ordinance, agreement, contract
or other document stating the terms and conditions of any Franchise,
including, without limitation, all exhibits and schedules thereto, all
amendments thereof and consents, waivers and extensions issued
thereunder, any documents incorporated therein by reference and the
application from which such Franchise was granted.
"F.R.S. BOARD" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"GAAP" is defined in Section 1.4.
"GENERAL PARTNER" means Jones Intercable until such time as
Jones Intercable is replaced in accordance with the terms of this
Agreement by another Person as the general partner of the Borrower, at
which time, "General Partner" shall mean such other Person. Whenever
the term "General Partner" is used herein, such term shall mean any
such Person in its capacity as the general partner of the Borrower.
"GENERAL PARTNER ADVANCES" means (i) all amounts representing
deferred Management Fees and deferred Allocated Overhead, (ii) all
amounts representing the Borrower's obligation to repay cash advances
or loans made to the Borrower or any of its Subsidiaries by the
General Partner or any previous general partner of the Borrower
actually used and accounted for by the Borrower for the purpose of
paying the Borrower's Indebtedness, Capital Expenditures or other
obligations, (iii) reimbursements to the General Partner for
documented expenses incurred by the General Partner for the account of
the Borrower on a month-to-month basis in the ordinary course of
Borrower's business and consistent with past practices (and not for
borrowed money), and (iv) any interest accrued on any of the foregoing
amounts.
"HAZARDOUS MATERIALS" is defined in Section 6.12(b).
"HEAD END" means the antenna site, the tower and the antenna,
the microwave communications equipment, the earth station and the head
end facilities, equipment, leaseholds or other real estate and
leasehold improvements relating thereto.
"HEDGING OBLIGATIONS" means, with respect to any Person, all
liabilities of such Person under interest rate swap, interest rate
cap, and interest rate collar agreements, and all other agreements or
arrangements
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designed to protect such Person against fluctuations in interest rates
or currency exchange rates.
"HEREIN", "HEREOF', "HERETO", "HEREUNDER" and similar terms
contained in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document, as the case may be, as a whole
and not to any particular Section, paragraph or provision of this
Agreement or such other Loan Document.
"HOMES PASSED" means the actual number of residential
dwellings which can be connected to a Cable System by a single drop
line from existing trunk and distribution lines, which lines are
energized and capable of carrying cable television signals to
subscribers and are connected to an existing Head End facility. In the
case of commercial buildings, such as hotels or motels, or in the case
of multiple residential dwellings, such as apartment houses and
multifamily homes, which do not and are not reasonably anticipated to
obtain a reduced bulk service rate, each separate guest unit or
dwelling unit shall be counted as one residential dwelling. The number
of dwelling units in a commercial building or in a multiple
residential building which does or is reasonably anticipated to obtain
a reduced bulk service rate shall be obtained by dividing (a) the
aggregate dollar amount of monthly subscriber fees obtained or
reasonably anticipated to be obtained on account of such commercial
building or multiple residential building for basic service by (b) the
applicable Basic Subscriber Rate. Except for discounts to senior
citizens less than 20% of the otherwise applicable rate, residential
households (other than a multiple residential dwelling) paying for or
reasonably expected to be paying for services on a discounted basis or
under any form of deferred payment arrangement shall not be included.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion
or certification of any independent public accountant as to any
financial statement of the Borrower, any qualification or exception to
such opinion or certification:
(a) which is of a "going concern" or similar
nature;
(b) which relates to the limited scope of
examination of matters relevant to such financial statement;
or
(c) which relates to the treatment or
classification of any item in such financial statement and
which, as a condition to its removal, would require an
adjustment to such item the effect of which would be to cause
the Borrower to be in default of any of its obligations under
Section 7.2.4.
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"INCLUDING" means including without limiting the generality of
any description preceding such term, and, for purposes of this
Agreement and each other Loan Document, the parties hereto agree that
the rule of ejusdem generis shall not be applicable to limit a general
statement, which is followed by or referable to an enumeration of
specific matters, to matters similar to the matters specifically
mentioned.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed
money and all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(b) all obligations, contingent or otherwise,
relative to the face amount of all letters of credit, whether
or not drawn, and banker's acceptances issued for the account
of such Person;
(c) all obligations of such Person as lessee
under leases which have been or should be, in accordance with
GAAP, recorded as Capitalized Lease Liabilities;
(d) all Contingent Liabilities of such Person;
(e) net liabilities of such Person under all
Hedging Obligations;
(f) whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to pay
the deferred purchase price of property or services, and
indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or
other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is
limited in recourse; and
(g) all other items which, in accordance with
GAAP, would be included as liabilities on the liability side
of the balance sheet of such Person (including any footnotes
thereto) as of the date at which Indebtedness is to be
determined.
"INDEMNIFIED LIABILITIES" is defined in Section 10.4.
"INDEMNIFIED PARTIES" is defined in Section 10.4.
"INTEREST COVERAGE RATIO" means, at any time of determination,
the ratio, computed on a consolidated basis, of:
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(a) Cash Flow for the immediately preceding
Fiscal Quarter; to
(b) Interest Expense for such Fiscal Quarter.
"INTEREST EXPENSE" means, for any period, the interest expense
of the Borrower for such period, including, (whether or not includable
under GAAP) all net amounts payable with respect to Hedging
Obligations, commitment fees owed with respect to the Commitments and
the portion of any Capitalized Lease Liabilities of the Borrower
allocable to interest expense, in each case paid or payable during
such period, but excluding interest due on General Partner Advances.
"INTEREST PERIOD" means, relative to any LIBO Rate Loan, the
period beginning on (and including) the date on which such LIBO Rate
Loan is made or continued as, or converted into, a LIBO Rate Loan
pursuant to Section 2.3 or 2.4 and ending on (but excluding) the day
which numerically corresponds to such date one, two, three, six or, if
the Agent determines that a twelve month rate is available, twelve
months thereafter (or, if such month has no numerically corresponding
day, on the last Business Day of such month), in each case as the
Borrower may select in its relevant notice pursuant to Section 2.3 or
2.4; provided, however, that:
(a) the Borrower shall not be permitted to select
Interest Periods to be in effect at any one time which have
expiration dates occurring on more than six different dates;
(b) Interest Periods commencing on the same date
for Loans comprising part of the same Borrowing shall be of
the same duration;
(c) if any Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period shall
end on the next following Business Day unless such next
following Business Day is the first Business Day of a calendar
month, in which case such Interest Period shall end on the
Business Day immediately preceding such numerically
corresponding day; and
(d) no Interest Period may end later than the
Stated Maturity Date.
"INVESTMENT" means relative to any Person:
(a) any loan or advance made by such Person to
any other Person (excluding (i) commission, travel and similar
advances to officers and employees made in the ordinary course
of business and
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(ii) trade credit made available to or loans or advances made
to subcontractors or suppliers on customary terms and in the
ordinary course of the Borrower's business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by
such Person in any other Person.
The amount of any Investment shall be the original principal
or capital amount thereof less all returns of principal or equity thereon (and
without adjustment by reason of the financial condition of such other Person)
and shall, if made by the transfer or exchange of property other than cash, be
deemed to have been made in an original principal or capital amount equal to
the fair market value of such property.
"JONES INTERCABLE" means Jones Intercable, Inc., a Colorado
corporation.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment
Agreement substantially in the form of Exhibit D hereto.
"LENDERS" is defined in the preamble.
"LEVERAGE RATIO" means, at any time of determination, the
ratio, computed on a consolidated basis, of:
(a) Total Debt at such time; to
(b) Annualized Cash Flow.
"LIBO RATE" is defined in Section 3.3.l.
"LIBO RATE LOAN" means a Loan bearing interest at all times
during an Interest Period applicable to such Loan, at a rate of
interest determined by reference to the LIBO Rate (Reserve Adjusted).
"LIBO RATE (RESERVE ADJUSTED)" is defined in Section 3.3.l.
"LIBOR OFFICE" means, relative to any Lender, the office of
such Lender designated as such below its signature hereto or, if
applicable, designated in such Lender's Lender Assignment Agreement or
such other office of a Lender (or any successor or assign of such
Lender) as designated from time to time by notice from such Lender to
the Borrower and the Agent, whether or not outside the United States,
which shall be making or maintaining LIBO Rate Loans of such Lender
hereunder.
"LIBOR RESERVE PERCENTAGE" is defined in Section 3.3.l.
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"LIEN" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property to
secure payment of a debt or performance of an obligation or other
priority or preferential arrangement of any kind or nature whatsoever.
"LOAN" means, as the context may require, either a Revolving
Loan or a Term Loan of any type.
"LOAN DOCUMENT" means this Agreement, the Notes, the Security
Agreement, the Subordination Agreement, the Fee Letter, each agreement
evidencing Hedging Obligations of the Borrower, and each other
agreement, document or instrument delivered in connection herewith or
therewith.
"MANAGEMENT FEES" means, for any period, the management fees
payable by the Borrower to the General Partner during such period for
management services provided to the Borrower pursuant to the
Partnership Agreement.
"MATERIAL ACQUISITION" means a purchase by the Borrower of all
or substantially all of the assets constituting a CATV and SMATV
system or all or substantially all of the assets of another Person, or
the acquisition by the Borrower of another Person through merger, if,
in any case, the total consideration to be paid by the Borrower in
respect thereof (x) exceeds $500,000, or (y) when added together with
the total consideration paid by the Borrower in respect of all other
similar transactions during the term of this Agreement, exceeds
$2,000,000 in the aggregate.
"MATERIAL AGREEMENT" is defined in Section 8.1.12.
"NON-EXCLUDED TAXES" is defined in Section 4.6.
"NOTE" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A hereto (as such
promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing (i) prior to the Conversion Date, the
aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Revolving Loans, and (ii) on and after the Conversion
Date, the principal amount of such Lender's Term Loan, and also means
all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"OBLIGATIONS" means all obligations (monetary or otherwise) of
the Borrower arising under or in connection with this Agreement, the
Notes and each other Loan Document.
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"OFFICIAL BODY" means any Federal, state or local government
or political subdivision or any agency, authority, bureau, central
bank commission, department or instrumentality of either, or any
court, tribunal, grand jury or arbitrator, in each case whether
foreign or domestic.
"ORGANIC DOCUMENT" means, relative to any Person, as
applicable, its certificate of incorporation and its by-laws or its
certificate of partnership and partnership agreement, and all
shareholder agreements, voting trusts and similar arrangements
applicable to any of its authorized shares of capital stock or
partnership interests, as the case may be.
"PARTICIPANT" is defined in Section 10.11.2.
"PARTNERSHIP AGREEMENT" means the Limited Partnership
Agreement of the Borrower, dated as of June 17, 1983 (as the same may
be amended, restated or otherwise modified from time to time).
"PAY TO BASIC RATIO" means, at any time, a percentage derived
from a fraction, the numerator of which is the number of Pay Units at
such time, and the denominator of which is the number of Basic
Subscribers at such time.
"PAY UNIT" means a cable programming service subscribed to by
any subscriber of a Cable System at an additional charge in excess of
the amount paid by any such subscriber for basic or expanded basic
service, which subscription is not more than 60 days past due. The
number of Pay Units in the case of subscribers receiving a reduced
bulk pay programming service rate shall be determined by dividing (x)
the aggregate dollar amount of monthly subscribers' fees paid on
account of such services by (y) the standard rate for the pay
programming services received.
"PENSION PLAN" means a "PENSION PLAN", as such term is defined
in Section 3(2) of ERISA, which is subject to Title IV of ERISA (other
than a multi-employer plan as defined in Section 4001(a)(3) of
ERISA), and to which the Borrower or any corporation, trade or
business that is, along with the Borrower, a member of a Controlled
Group, may have liability, including any liability by reason of having
been a substantial employer within the meaning of Section 4063 of
ERISA at any time during the preceding five years, or by reason of
being deemed to be a contributing sponsor under Section 4069 of ERISA.
"PERCENTAGE" means, relative to any Lender, the percentage set
forth opposite its signature hereto or, if applicable, set forth in
such Lender's Lender Assignment Agreement, as such percentage may be
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adjusted from time to time pursuant to Lender Assignment Agreement(s)
executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 10.11.1.
"PERSON" means any natural person, corporation, partnership,
firm, association, trust, government, governmental agency or any other
entity, whether acting in an individual, fiduciary or other capacity.
"PLAN" means any Pension Plan or Welfare Plan.
"POLE AGREEMENT" means any conduit occupancy rights, pole
agreement, pole rental, pole use, access or similar agreement with any
telephone company, public authority, public utility or other entity
pursuant to which the coaxial, fiber optic or other type of sale and
local distribution units of a cable television system are extended.
"PRO FORMA DEBT SERVICE" means, as of any date of
determination, Debt Service for the next succeeding complete four
Fiscal-Quarter period following such date, after giving effect to any
then existing Hedging Obligations. For purposes of this definition,
where interest payments of Indebtedness for such four quarter period
are not fixed (pursuant to the terms of such Indebtedness or by way of
Hedging Obligations), interest shall be calculated on such
Indebtedness for the portion of such period for which interest
payments are not so fixed at the rate of interest on a LIBO Rate Loan
having an Interest Period of three (3) months, plus the Applicable
Margin, in effect on the date of determination.
"PRO FORMA DEBT SERVICE RATIO" means, at any date of
determination, the ratio, computed on a consolidated basis of:
(a) Annualized Cash Flow; to
(b) Pro Forma Debt Service.
"QUARTERLY PAYMENT DATE" means the last day of each March,
June, September, and December or, if any such day is not a Business
Day, the next succeeding Business Day.
"RELEASE" means a "RELEASE", as such term is defined in
CERCLA.
"REQUIRED LENDERS" means, at any time, Lenders holding at
least 66 and 2/3% of the then aggregate outstanding principal amount
of the Notes then held by the Lenders, or, if no such principal amount
is then outstanding, Lenders having at least 66 and 2/3% of the
Commitments.
"RESOURCE CONSERVATION AND RECOVERY ACT" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., and
the
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rules and regulations issued thereunder, as amended, reformed or
otherwise modified from time to time.
"REVOLVING LOAN" is defined in Section 2.1.1.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered pursuant to Section 5.1.4, substantially in the form of
Exhibit E hereto (as the same may be amended, restated or otherwise
modified from time to time).
"SHAWMUT" is defined in the Preamble.
"SMATV" means satellite master antenna television.
"STATED MATURITY DATE" means December 31, 2002.
"SUBORDINATION AGREEMENT" means the Subordination Agreement
executed and delivered pursuant to Section 5.1.5, substantially in the
form of Exhibit F hereto (as the same may be amended, restated or
otherwise modified from time to time.
"SUBSIDIARY" means any corporation, association, trust, or
other business entity of which the designated parent shall at any time
own directly or indirectly through a Subsidiary or Subsidiaries at
least a majority (by number of votes) of the outstanding Voting Stock.
"TAXES" is defined in Section 4.6.
"TAX TRANSFEREE" is defined in Section 4.6.
"TERM LOAN" is defined in Section 3.l.
"TOTAL DEBT" means all Indebtedness of the Borrower other than
Indebtedness of the type described in clauses (e) and (h) of Section
7.2.2.
"TYPE" means, relative to any Loan, the portion thereof, if
any, being maintained as a Base Rate Loan or a LIBO Rate Loan.
"UNITED STATES" or "U.S." means the United States of America,
its fifty states and the District of Columbia.
"VOTING STOCK" means stock or similar interests, of any class
or classes (however designated), the holders of which are at the time
entitled, as such holders, to vote for the election of a majority of
the directors (or persons performing similar functions) of the
corporation, association, trust or other business entity involved,
whether or not the right so to vote exists by reason of the happening
of a contingency.
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"WELFARE PLAN" means a "WELFARE PLAN", as such term is defined
in Section 3(l) of ERISA.
SECTION 1.2. USE OF DEFINED TERMS. Unless otherwise defined or
the context otherwise requires, terms for which meanings are provided
in this Agreement shall have such meanings when used in the Disclosure
Schedule and in each Note, Borrowing Request, Continuation/Conversion
Notice, Loan Document, notice and other communication delivered from
time to time in connection with this Agreement or any other Loan
Document.
SECTION 1.3. CROSS-REFERENCES. Unless otherwise specified,
references in this Agreement and in each other Loan Document to any
Article or Section are references to such Article or Section of this
Agreement or such other Loan Document, as the case may be, and, unless
otherwise specified, references in any Article, Section or definition
to any clause are references to such clause of such Article, Section
or definition.
SECTION 1.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless
otherwise specified, all accounting terms used herein or in any other
Loan Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder (including under Section 7.2.4)
shall be made, and all financial statements required to be delivered
hereunder or thereunder shall be prepared in accordance with, those
generally accepted accounting principles in the United States ("GAAP")
applied in the preparation of the financial statements referred to in
Section 6.5.
ARTICLE 2.
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. COMMITMENTS. On the terms and subject to the
conditions of this Agreement, each Lender severally agrees to make
Loans pursuant to the Commitment described in this Section 2.l.
SECTION 2.1.1. REVOLVING LOAN COMMITMENT. From time
to time on any Business Day occurring prior to the Commitment
Termination Date, each Lender will make loans (relative to
such Lender, its "REVOLVING LOANS") to the Borrower equal to
such Lender's Percentage of the aggregate amount of the
Borrowing of Revolving Loans requested by the Borrower to be
made on such day. The Commitment of each Lender described in
this Section 2.1.1 is herein referred to as its "COMMITMENT."
On the terms and subject to the conditions hereof, the
Borrower may, from time to time, prior to the Commitment
Termination Date borrow, repay and reborrow the Revolving
Loans.
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SECTION 2.1.2. LENDERS NOT PERMITTED OR REQUIRED TO
MAKE REVOLVING LOANS. No Lender shall be permitted or required
to make any Revolving Loan if, after giving effect thereto,
the aggregate outstanding principal amount of all Revolving
Loans:
(i) of all the Lenders would exceed
the Commitment Amount; or
(ii) of such Lender would exceed
such Lender's Percentage of the Commitment
Amount.
SECTION 2.2. REDUCTION OF COMMITMENT AMOUNT. The Borrower may,
from time to time, on any Business Day occurring after the Effective
Date, voluntarily reduce the Commitment Amount; provided, however,
that all such reductions shall require at least three Business Days'
prior notice to the Agent and shall be permanent, and any partial
reduction of the Commitment Amount shall be in a minimum amount of
$500,000 and in an integral multiple of $100,000. If after giving
effect to any such reduction of the Commitment Amount, the sum of the
Loans then outstanding are in excess of the reduced Commitment Amount,
the Borrower shall immediately prepay to the Agent, in accordance with
Section 3.1, the amount necessary for the sum of the Loans then
outstanding to be equal to or less than the reduced Commitment Amount.
SECTION 2.3. BORROWING PROCEDURE. By delivering a Borrowing
Request to the Agent on or before 12:00 noon, Hartford, Connecticut
time, on a Business Day, the Borrower may from time to time
irrevocably request, in the case of LIBO Rate Loans, on not less than
three nor more than five Business Days' notice, or, in the case of
Base Rate Loans, on not less than one nor more than five Business
Days' notice, that a Borrowing be made in a minimum amount of $500,000
and an integral multiple of $100,000, or in the unused amount of the
then applicable Commitment Amount. Upon receipt of a Borrowing
Request, the Agent shall promptly notify the other Lenders on the same
day of the Borrowing requested thereby. On the terms and subject to
the conditions of this Agreement, each Borrowing shall be comprised of
the type of Loans, and shall be made on the Business Day, specified in
such Borrowing Request. On or before 2:00 p.m., Hartford, Connecticut
time, on such Business Day, each Lender shall deposit with the Agent
same day funds in an amount equal to such Lender's Percentage of the
requested Borrowing. Such deposit will be made to an account which the
Agent shall specify from time to time by notice to the Lenders. To the
extent funds are received from the Lenders, the Agent shall make such
funds available to the Borrower by wire transfer to the accounts the
Borrower shall have specified in its Borrowing Request. No Lender's
obligation to
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make any Loan shall be affected by any other Lender's failure to make
any Loan.
SECTION 2.4. CONTINUATION AND CONVERSION ELECTIONS. By
delivering a Continuation/Conversion Notice to the Agent on or before
12:00 noon, Hartford, Connecticut time, on a Business Day, the
Borrower may from time to time irrevocably elect, on not less than
three nor more than five Business Days' notice, that all, or any
portion in an aggregate minimum amount of $500,000 and an integral
multiple of $100,000, of any Loans be, in the case of Base Rate Loans,
converted into LIBO Rate Loans or in the case of LIBO Rate Loans, be
converted into a Base Rate Loan or continued as a LIBO Rate Loan (in
the absence of delivery of a Continuation/Conversion Notice with
respect to any LIBO Rate Loan at least three Business Days before the
last day of the then current Interest Period with respect thereto,
such LIBO Rate Loan shall, on such last day, automatically convert
into a Base Rate Loan); provided, however, that (x) each such
conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders, and (y) no portion of the
outstanding principal amount of any Loans may be continued as, or be
converted into, LIBO Rate Loans when any Default has occurred and is
continuing. Upon receipt of a Continuation/Conversion Notice, the
Agent shall promptly notify the other Lenders on the same day of the
continuation or conversion requested thereby. Notwithstanding the
foregoing, in the case of the conversion of a LIBO Rate Loan into a
Base Rate Loan, the Borrower may make such election on not less than
one nor more than five Business Days' notice.
SECTION 2.5. FUNDING. Each Lender may, if it so elects,
fulfill its obligation to make, continue or convert LIBO Rate Loans
hereunder by causing one of its foreign branches or Affiliates (or an
international banking facility created by such Lender) to make or
maintain such LIBO Rate Loan; provided, however, that such LIBO Rate
Loan shall nonetheless be deemed to have been made and to be held by
such Lender, and the obligation of the Borrower to repay such LIBO
Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In
addition, the Borrower hereby consents and agrees that, for purposes
of any determination to be made under Section 4.1, 4.2, 4.3 or 4.4, it
shall be conclusively assumed that each Lender elected to fund all
LIBO Rate Loans by purchasing, as the case may be, Dollar certificates
of deposit in the U.S. or Dollar deposits in its LIBOR Office's
interbank eurodollar market.
SECTION 2.6. NOTES. Each Lender's Loans shall be evidenced by
a Note payable to the order of such Lender in a maximum principal
amount equal to such Lender's Percentage of the original applicable
Commitment Amount. The Borrower hereby irrevocably authorizes each
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Lender to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Note (or on any continuation of such grid),
which notations, if made, shall evidence, inter alia, the date of, the
outstanding principal of, and the interest rate and Interest Period
applicable to, the Loans evidenced thereby. Such notations shall be
conclusive and binding on the Borrower absent manifest error;
provided, however, that the failure of any Lender to make any such
notations shall not limit or otherwise affect any Obligations of the
Borrower.
ARTICLE 3.
CONVERSION, REPAYMENTS, PREPAYMENTS,
INTEREST AND FEES
SECTION 3.1. CONVERSION, REPAYMENTS AND PREPAYMENTS. On the
Conversion Date, the aggregate outstanding principal amount of each
Lender's Revolving Loans (with respect to each Lender, the "CONVERSION
DATE AMOUNT") shall automatically convert into a term loan (with
respect to each Lender, its "TERM LOAN"). Thereafter, the Borrower
shall repay the outstanding principal amount of each Lender's Term
Loan in successive quarterly installments on each Quarterly Payment
Date beginning with March 31, 1997 and ending on the Stated Maturity
Date. The amount of each installment in each calendar year shall be
equal, and the aggregate principal amount of all installments made in
each calendar year shall be equal to an amount that, when subtracted
from the Conversion Date Amount of each Lender's Term Loan, shall
result in the Conversion Date Amount at the end of such calendar year
being reduced by a percentage at least equal to the percentage set
forth below opposite such year:
PERCENTAGE (%) OF CONVERSION DATE AMOUNT
CALENDAR YEAR TO BE REPAID AT END OF CALENDAR YEAR
------------- ------------------------------------
1997 12.00%
1998 15.00%
1999 16.00%
2000 18.00%
2001 19.00%
2002 20.00%
The remaining unpaid principal amount of all Term Loans shall
be repaid by the Borrower on the Stated Maturity Date.
Prior to the Stated Maturity Date, the Borrower:
(a) may, from time to time on any Business Day,
make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Term Loans; provided,
however, that:
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(i) any such prepayment shall be made
pro rata among Loans of the same type and, if
applicable, having the same Interest Period of all
Lenders;
(ii) no such prepayment of any LIBO Rate
Loan may be made on any day other than the last day
of the Interest Period for such Loan unless the
Borrower shall have paid directly to any Lender any
amounts required under Section 4.4;
(iii) all such voluntary prepayments shall
require at least three but no more than five Business
Days' prior notice to the Agent in the case of LIBO
Rate Loans, and at least one but no more than five
Business Days' prior notice to the Agent in the case
of Base Rate Loans; and
(iv) all such voluntary partial
prepayments shall be in an aggregate minimum amount
of $500,000 and an integral multiple of $100,000;
(b) shall, on each date when any reduction in the
Commitment Amount shall become effective, including pursuant
to Section 2.2, make a mandatory prepayment of all Revolving
Loans equal to the excess, if any, of the aggregate
outstanding principal amount of all Revolving Loans over the
Commitment Amount as so reduced; and
(c) shall, immediately upon any acceleration of
any Loans pursuant to Section 8.2 or Section 8.3, repay all
Loans, unless, pursuant to Section 8.3, only a portion of all
Loans is so accelerated.
Each voluntary prepayment of Term Loans made pursuant to clause (a)
shall be applied, to the extent of such prepayment, in the inverse
order of the scheduled repayments of Term Loans set forth in this
Section 3.1. Each prepayment of any Term Loans made pursuant to this
Section shall be (i) without premium or penalty and (ii) made together
with any amounts required to be paid under Section 4.4. No voluntary
prepayment of principal of any Revolving Loans shall cause a reduction
in the Commitment Amount.
SECTION 3.2. EXCESS CASH FLOW RECAPTURE. In addition to any
and all scheduled repayments of the Term Loans as set forth in Section
3.1 above, the Borrower shall, within one hundred twenty (120) days
after the end of each Fiscal Year of the Borrower, commencing with the
end of the 1996 Fiscal Year, pay to the Agent an amount equal to
seventy-five percent (75%) of Excess Cash Flow of the Borrower for the
immediately preceding Fiscal Year. Such prepayments of Excess Cash
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Flow shall be applied to the payment of installments of the
outstanding principal amount of each Lender's Term Loans (including,
without limitation, the installment due and payable on the Stated
Maturity Date) due and payable hereunder in inverse order of maturity.
SECTION 3.3. INTEREST PROVISIONS. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance
with this Section 3.3.
SECTION 3.3.1. RATES. Pursuant to an appropriately
completed and delivered Borrowing Request or
Continuation/Conversion Notice, the Borrower may elect that
Loans comprising a Borrowing accrue interest at a rate per
annum:
(a) on that portion maintained from time
to time as a Base Rate Loan, equal to the sum of the
Alternate Base Rate from time to time in effect plus
the Applicable Margin; and
(b) on that portion maintained as a LIBO
Rate Loan, during each Interest Period applicable
thereto, equal to the sum of the LIBO Rate (Reserve
Adjusted) for such Interest Period plus the
Applicable Margin.
The Applicable Margin for each type of Loan shall change
automatically on the date a Compliance Certificate is delivered in
accordance with Section 7.1.1 (b) and (c) indicating a change in the
then existing Leverage Ratio mandating a change in such margins;
provided, however, that if such Compliance Certificate is not
delivered within the time required by such Section, such change in
such margins shall, upon ultimate delivery of such Compliance
Certificate, be deemed nevertheless to have been effective on and as
of the date on which such Compliance Certificate was required to be
delivered pursuant to such Section.
The "LIBO RATE (RESERVE ADJUSTED)" means, relative to any Loan
to be made, continued or maintained as, or converted into, a LIBO Rate
Loan for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) determined pursuant to the
following formula:
LIBOR = LIBO Rate
---------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for
LIBO Rate Loans will be determined by the Agent on the basis of the
LIBOR Reserve Percentage in effect on, and the applicable rates
furnished to and
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received by the Agent from Shawmut, two Business Days before the first
day of such Interest Period.
"LIBO RATE" means, relative to any Interest Period for LIBO
Rate Loans, the rate of interest equal to the average (rounded
upwards, if necessary, to the nearest 1/16 of 1%) of the rates per
annum at which Dollar deposits in immediately available funds are
offered to Shawmut's LIBOR Office in the London interbank market as at
or about 11:00 a.m. London time two Business Days prior to the
beginning of such Interest Period for delivery on the first day of
such Interest Period, and in an amount approximately equal to the
amount of Shawmut's LIBO Rate Loan and for a period approximately
equal to such Interest Period.
"LIBOR RESERVE PERCENTAGE" means for any day the reserve
percentage (expressed as a decimal) equal to the maximum aggregate
reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional
adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S.
Board and then applicable to assets or liabilities consisting of and
including "EUROCURRENCY LIABILITIES", as currently defined in
Regulation D of the F.R.S. Board, having a term approximately equal or
comparable to such Interest Period.
All LIBO Rate Loans shall bear interest from and including the
first day of the applicable Interest Period to (but not including) the
last day of such Interest Period by reference to the interest rate
determined as applicable to such LIBO Rate Loans.
SECTION 3.3.2.. POST-MATURITY RATES. After the date
any principal amount of any Loan is due and payable (whether
on the Stated Maturity Date, in connection with any mandatory
reduction of the Commitment Amount or mandatory prepayment
hereunder, upon acceleration or otherwise), or after any other
monetary Obligation of the Borrower shall have become due and
payable, the Borrower shall pay, but only to the extent not
prohibited by applicable law, interest (after as well as
before judgment) on such amounts at a rate per annum equal to
the Alternate Base Rate plus 2.0%.
SECTION 3.3.3. PAYMENT DATES. Interest accrued on each
Loan shall be payable without duplication:
(a) on the Conversion Date with respect
to Revolving Loans, and on the Stated Maturity Date
with respect to Term Loans;
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(b) on the date of any optional or
required payment or prepayment, in whole or in part,
of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on
each Quarterly Payment Date occurring after the
Effective Date;
(d) with respect to any LIBO Rate Loans,
on the last day of each applicable Interest Period
(and, if such Interest Period shall exceed 3 months,
on the last calendar day of the 3rd month of such
Interest Period and the last calendar day of each
subsequent 3rd month of such Interest Period
thereafter);
(e) with respect to any Base Rate Loans
converted into LIBO Rate Loans on a day when interest
would not otherwise have been payable pursuant to
clause (c), on the date of such conversion; and
(f) on that portion of any Loans which
is accelerated pursuant to Section 8.2 or Section 8.3
immediately upon such acceleration.
Interest accrued on Loans or other monetary
Obligations arising under this Agreement or any other Loan
Document after the date such amount is due and payable
(whether on the Stated Maturity Date, in connection with any
mandatory reduction of the Commitment Amount or mandatory
prepayment hereunder, upon acceleration or otherwise) shall be
payable upon demand.
SECTION 3.4. FEES. The Borrower agrees to pay the fees set
forth in this Section 3.4. All such fees shall be nonrefundable.
SECTION 3.4.1. COMMITMENT FEE. The Borrower agrees to
pay to the Agent for the account of each Lender, for the
period (including any portion thereof when any of such
Lender's Commitments are suspended by reason of the Borrower's
inability to satisfy any condition of Article V) commencing on
the Effective Date and continuing through the Commitment
Termination Date, a commitment fee at the rate of 3/8 of 1%
per annum on such Lender's Percentage of the sum of the
average daily unused portion of the Commitment Amount. Such
commitment fee shall be payable by the Borrower in arrears on
each Quarterly Payment Date, commencing with the first such
day following the Effective Date, and on the Commitment
Termination Date.
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SECTION 3.4.2. AGENT'S FEE. The Borrower agrees to
timely pay to the Agent, for the Agent's own account, the fees
provided for in the Agent's Fee Letter.
SECTION 3.4.3. FACILITY FEE. The Borrower agrees to
pay to the Agent on the Effective Date, for the accounts of
the Lenders and in accordance with each Lender's Commitment, a
nonrefundable facility fee as set forth in the Fee Letter.
ARTICLE 4.
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO RATE LENDING UNLAWFUL. If any Lender shall
determine (which determination shall, upon notice thereof to the
Borrower and the other Lenders, be conclusive and binding on the
Borrower) that the introduction of or any change in or in the
interpretation of any law makes it unlawful, or any central bank or
other governmental authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Loan as, or to convert any
Loan into, a LIBO Rate Loan, the obligations of all Lenders to make,
continue, maintain or convert into any such Loans shall, upon such
determination, forthwith be suspended until such Lender shall notify
the Agent that the circumstances causing such suspension no longer
exist, and all LIBO Rate Loans shall automatically convert into Base
Rate Loans at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion.
SECTION 4.2. DEPOSITS UNAVAILABLE. If the Agent shall have
determined, or shall be informed by a Lender, that
(a) Dollar certificates of deposit or Dollar
deposits, as the case may be, in the relevant amount and for
the relevant Interest Period are not available to Shawmut or
such Lender in its relevant market; or
(b) by reason of circumstances affecting such
relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to LIBO Rate Loans,
then, upon notice from the Agent to the Borrower and the
Lenders of such fact, the obligations of all Lenders under Sections
2.3 and Section 2.4 to make or continue any Loans as, or to convert
any Loans into, LIBO Rate Loans shall forthwith be suspended until the
Agent shall determine, or be informed, that and, in either case, shall
give notice to the Borrower and the other Lenders that, the
circumstances causing such suspension no longer exist.
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SECTION 4.3. INCREASED LIBO RATE LOAN COSTS, ETC. The Borrower
agrees to reimburse each Lender for any increase in the cost to such
Lender of, or any reduction in the amount of any sum, receivable by
such Lender in respect of, making, continuing or maintaining (or of
its obligation to make, continue or maintain) any Loans as, or of
converting (or of its obligation to convert) any Loans into, LIBO Rate
Loans. Such Lender shall, within ninety (90) days of its actual
knowledge of such event, notify the Agent and the Borrower in writing
of the occurrence of any such event, such notice to state, in
reasonable detail, the reasons therefor and the additional amount
required fully to compensate such Lender for such increased cost or
reduced amount. Such additional amounts shall be payable by the
Borrower directly to such Lender within five days of its receipt of
such notice, and such notice shall, in the absence of manifest error,
be conclusive and binding on the Borrower.
SECTION 4.4. FUNDING LOSSES. In the event any Lender shall
incur any loss or expense (including any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to make, continue or maintain any portion of
the principal amount of any Loan as, or to convert any portion of the
principal amount of any Loan into, a LIBO Rate Loan) as a result of:
(a) any conversion or repayment or prepayment of
the principal amount of any LIBO Rate Loans on a date other
than the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Section 3.1 or otherwise;
(b) any Loans not being made as LIBO Rate Loans
in accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or
converted into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor,
then, upon the written notice of such Lender to the Borrower
(with a copy to the Agent), the Borrower shall, within five days of
its receipt thereof, pay directly to such Lender such amount as will
(in the reasonable determination of such Lender) reimburse such Lender
for such loss or expense. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Borrower.
SECTION 4.5. INCREASED CAPITAL COSTS. If any change in, or the
introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive,
guideline, decision or request (whether or not having the force of
law) of any court, central bank,
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regulator or other governmental authority affects or would affect the
amount of capital required or expected to be maintained by any Lender
or any Person controlling such Lender, and such Lender determines (in
its sole and absolute discretion) that the rate of return on its or
such controlling Person's capital as a consequence of its Commitments
or the Loans made by such Lender is reduced to a level below that
which such Lender or such controlling Person could have achieved but
for the occurrence of any such circumstance, then, in any such case
upon notice from time to time by such Lender to the Borrower, the
Borrower shall, within five (5) days after receipt of such notice, pay
directly to such Lender additional amounts sufficient to compensate
such Lender or such controlling Person for such reduction in rate of
return. A statement of such Lender as to any such additional amount or
amounts (including calculations thereof in reasonable detail) shall,
in the absence of manifest error, be conclusive and binding on the
Borrower. In determining such amount, such Lender may use any
reasonable method of averaging and attribution that it shall deem
applicable.
SECTION 4.6. TAXES. All payments by the Borrower of principal
of, and interest on, the Loans and all other amounts payable hereunder
shall be made free and clear of and without deduction for any present
or future income, excise, stamp or franchise taxes and other taxes,
fees, duties, withholdings or other charges of any nature whatsoever
imposed by any taxing authority ("TAXES"), but excluding (i) Taxes
imposed on any Lender's net income (including, without limitation, any
Taxes imposed on branch profits) and franchise Taxes imposed on any
Lender by the jurisdiction under the laws of which such Lender is
organized or any political subdivision thereof or by the jurisdiction
of such Lender's lending office, (ii) any Taxes that are in effect and
that would apply to a payment to such Lender as of the Effective Date,
(iii) if any Person acquires any interest in this Agreement or any
Note pursuant to the provisions hereof, including without limitation a
participation (whether or not by operation of law), or a foreign
Lender changes the office in which its Loan is made, accounted for or
booked (any such Person or such foreign Lender in that event being
referred to as a "TAX TRANSFEREE"), any Taxes to the extent that they
are in effect and would apply to a payment to such Tax Transferee as
of the date of the acquisition of such interest or change in office,
as the case may be, and (iv) Taxes which are otherwise included in any
amounts otherwise payable by the Borrower pursuant to any other
provision of this Agreement (all such non-excluded Taxes being
hereinafter referred to as "NON-EXCLUDED TAXES"). In the event that
any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Non-Excluded Taxes
pursuant to any applicable law, rule or regulation, then the Borrower
will:
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(a) pay directly to the relevant authority the
full amount required to be so withheld or deducted;
(b) promptly forward to the Agent an official
receipt or other documentation satisfactory to the Agent
evidencing such payment to such authority; and
(c) pay to the Agent for the account of the
Lenders such additional amount or amounts as is necessary to
ensure that the net amount actually received by each Lender
will equal the full amount such Lender would have received had
no such withholding or deduction been required.
Moreover, if any Non-Excluded Taxes are directly asserted
against the Agent or any Lender with respect to any payment received
by the Agent or such Lender hereunder, the Agent or such Lender may,
but is not obligated to, pay such Non-Excluded Taxes and the Borrower
will promptly pay such additional amount (including any penalties,
interest or expenses) as is necessary in order that the net amount
received by such Person after the payment of such Non-Excluded Taxes
(including any Non-Excluded Taxes on such additional amount) shall
equal the amount such Person would have received had not such
Non-Excluded Taxes been asserted. Within 30 days after the date that
any Lender or any Tax Transferee receives a refund of any Non-Excluded
Taxes which the Borrower has paid to the relevant taxing authority or
for which such Lender has been paid by the Borrower pursuant to the
indemnification provisions of this Section, such Lender or Tax
Transferee, as the case may be, shall pay to the Borrower such refund
of Non-Excluded Taxes along with any interest received with respect
thereto.
If the Borrower fails to pay any Non-Excluded Taxes, when due
to the appropriate taxing authority or fails to remit to the Agent,
for the account of the respective Lenders, the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Lenders for any incremental Non-Excluded Taxes, interest or penalties
that may become payable by any Lender as a result of any such failure.
For purposes of this Section 4.6, a disbursement hereunder by the
Agent or any Lender to or for the account of any Lender shall be
deemed a Borrowing by the Borrower.
Upon the request of the Borrower and/or the Agent, each Lender
that is organized under the laws of a jurisdiction other than the
United States shall, prior to the due date of any payments under the
Notes, execute and deliver to the Borrower and/or the Agent on or
about the first scheduled payment date in each Fiscal Year, one or
more (as the Borrower or the Agent, may reasonably request) United
States Internal Revenue
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Service Forms 4224 or Forms 1001 or such other forms or documents (or
successor forms or documents), appropriately completed, as may be
applicable to establish the extent, if any, to which a payment to such
Lender is exempt from withholding or deduction of Non-Excluded Taxes.
SECTION 4.7. PAYMENTS, COMPUTATIONS, ETC. Unless otherwise
expressly provided, all payments by the Borrower pursuant to this
Agreement, the Notes or any other Loan Document shall be made by the
Borrower to the Agent for the pro rata account of the Lenders entitled
to receive such payment. All such payments required to be made to the
Agent shall be made, without setoff, deduction or counterclaim, not
later than 12:00 noon, Hartford, Connecticut time, on the date due, in
same day or immediately available funds, to such account as the Agent
shall specify from time to time by notice to the Borrower. Funds
received after that time shall be deemed to have been received by the
Agent on the next succeeding Business Day. The Agent shall promptly
remit in same day funds to each Lender its share, if any, of such
payments received by the Agent for the account of such Lender
(provided, that, any such funds remitted after the date received shall
be remitted with interest accrued thereon at the Federal Funds Rate).
All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable
over a year comprised of 360 days (or, in the case of interest on a
Base Rate Loan (other then when such interest is calculated with
respect to the Federal Funds Rate), 365 days or, if appropriate, 366
days). Whenever any payment to be made shall otherwise be due on a day
which is not a Business Day, such payment shall (except as otherwise
required by clauses (c) or (d) of the definition of the term "Interest
Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if
any, in connection with such payment.
SECTION 4.8. SHARING OF PAYMENTS. If any Lender shall obtain
any payment or other recovery (whether voluntary, involuntary, by
application of setoff or otherwise) on account of any Loan (other than
pursuant to the terms of Sections 4.3, 4.4, 4.5 and 4.6) in excess of
its pro rata share of payments then or therewith obtained by all
Lenders, such Lender shall purchase from the other Lenders such
participations in Loans made by them as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery
ratably with each of them; provided, however, of that if all or any
portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be rescinded
and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the
ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to
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the proportion of (a) the amount of such selling Lender's required
repayment to the purchasing Lender; to (b) the total amount so
recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so purchasing
a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 4.9) with respect to such
participation as fully as if such Lender were the direct creditor of
the Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section
applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section to share in the
benefits of any recovery on such secured claim.
SECTION 4.9. SETOFF. Each Lender shall, upon the occurrence of
any Default described in clauses (a) through (d) of Section 8.1.8 or,
with the consent of the Required Lenders, upon the occurrence of any
other Event of Default, have the right to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due), and
(as security for such Obligations) the Borrower hereby grants to each
Leader a continuing security interest in, any and all balances,
credits, deposits accounts or moneys of the Borrower then or
thereafter maintained with or otherwise held by such Lender; Provided,
however, that any such appropriation and application shall be subject
to the provisions of Section 4.8. Each Lender agrees promptly to
notify the Borrower and the Agent after any such setoff and
application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Lender may have.
ARTICLE 5.
CONDITIONS TO BORROWING
SECTION 5.1. INITIAL BORROWING. The obligations of the Lenders
to fund the initial Borrowing shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth
in this Section 5.l.
SECTION 5.1.1. GENERAL PARTNER'S CERTIFICATE. The
Agent shall have received from the General Partner, a
certificate of the Secretary or an Assistant Secretary of the
General Partner, dated the date of the initial Borrowing:
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(a) with respect to the Borrower's
Organic Documents, that the copies thereof attached
are true and correct and in full force and effect on
the date of the initial Borrowing, together with a
certificate of good standing for the Borrower issued
by the jurisdiction in which it is organized, and
dated as of a date reasonably close to the date of
the initial Borrowing;
(b) with respect to the General
Partner's Organic Documents, that the copies thereof
attached are true and correct and in full force and
effect on the date of the initial Borrowing, copies
of which shall be attached thereto, together with a
certificate of good standing for the General Partner
issued by the jurisdiction in which it is organized,
and dated as of a date reasonably close to the date
of the initial Borrowing;
(c) all action necessary for the
execution, delivery and performance of this
Agreement, the Note, and each other Loan Document by
the General Partner, as the general partner of the
Borrower, together with copies of all resolutions to
such effect attached thereto; and
(d) the incumbency and signatures of
those officers of the General Partner authorized to
act on behalf of and bind the General Partner, in its
capacity as the general partner of the Borrower, with
respect to this Agreement, the Note and each other
Loan Document.
Each Lender may conclusively rely upon each certificate
referenced above until it shall have received a further
certificate from the General Partner canceling or amending
such prior certificates.
SECTION 5.1.2. DELIVERY OF NOTES. The Agent shall
have received each Lender's Note, in each case, duly executed
and delivered by the Borrower.
SECTION 5.1.3. PAYMENT OF OUTSTANDING INDEBTEDNESS,
ETC. All Indebtedness identified in Item 7.2.2(b)
("Indebtedness to be Paid") of the Disclosure Schedule,
together with all interest, prepayment premiums and other
amounts due and payable with respect thereto, shall have been
paid in full (including, to the extent necessary, from
proceeds of the initial Borrowing); all Liens securing payment
of any such Indebtedness shall have been released; and the
Agent shall have received all Uniform Commercial Code Form
UCC-3 termination Statements or other instruments as
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may be necessary or appropriate to release such Liens
(including the Lien held by Shawmut under the Existing Credit
Agreement), in each case, duly executed and completed by the
holders of such Liens and in a form suitable for filing.
SECTION 5.1.4. SECURITY AGREEMENT. The Agent shall
have received executed counterparts of the Security Agreement,
dated as of the date hereof, duly executed by the Borrower,
together with
(a) acknowledgment copies of properly
filed Uniform Commercial Code financing statements
(Form UCC-1), or such other evidence of filing as may
be acceptable to the Agent, naming the Borrower as
the debtor and the Agent as the secured party, as
agent and for the benefit of the Lenders, or other
similar instruments or documents, as may be necessary
or, in the opinion of the Agent, desirable to perfect
the security interest of the Agent pursuant to the
Security Agreement.
(b) executed copies of proper Uniform
Commercial Code Form UCC-3 termination statements, if
any, necessary to release all Liens and other rights
of any Person in any collateral described the
Security Agreement previously granted by any Person
(other than with respect to collateral subject to
Capitalized Leases and purchase money Liens permitted
hereunder) together with such other Uniform
Commercial Code Form UCC-3 termination statements as
the Agent may reasonably request; and
(c) certified copies of Uniform
Commercial Code Requests for Information or Copies
(Form UCC-11), or a similar search report certified
by a party acceptable to the Agent, dated a date
reasonably near to the date of the initial Borrowing,
listing all effective financing statements which name
the Borrower (under its present name and any previous
names) as the debtor and which are filed in the
jurisdictions in which filings were made pursuant to
clause (a) above, together with copies of such
financing statements (none of which (other than those
described in clause (a)) if such Form UCC-11 or
search report, as the case may be, is current enough
to list such financing statements described in clause
(a)) shall cover any collateral described in the
Security Agreement other than assets subject to
Capitalized Leases or purchase money Liens, in each
case as permitted hereunder).
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SECTION 5.1.5. SUBORDINATION AGREEMENT. The Agent
shall have received duly executed counterparts of the
Subordination Agreement, dated as of the date hereof, executed
and delivered by the Borrower and Jones Intercable.
SECTION 5.1.6. OPINIONS OF COUNSEL. The Agent shall
have received opinions, dated the date of the initial
Borrowing and addressed to the Agent and all Lenders, from:
(a) Elizabeth M. Steele, general counsel
to Jones Intercable, substantially in the form of
Exhibit G hereto; and
(b) Cohen, Dax, Koenig & Wiles,
regulatory counsel to the Borrower in the State of
New York, substantially in the form of Exhibit H
hereto;
(c) Dow, Lohnes & Albertson, FCC counsel
to the Borrower, substantially in the form of Exhibit
I hereto; and
(d) Phillips, Lytle, Hitchcock, Blaine &
Huber, New York counsel to the Borrower,
substantially in the form of Exhibit J hereto.
SECTION 5.1.7. CLOSING DATE CERTIFICATE. The Agent
shall have received a Closing Date Certificate, dated the date
of the initial borrowing, and duly executed and completed by
the Borrower.
SECTION 5.1.8. PAYOFF LETTER; DISBURSEMENT
INSTRUCTIONS. The Agent shall have received a payoff letter
from Shawmut, indicating the amount of the loan obligations of
the Borrower to Shawmut to be discharged on the Effective Date
and an acknowledgment by Shawmut that upon receipt of such
funds it will forthwith execute and deliver to the Agent for
filing all termination statements and take such other actions
as may be necessary to discharge all mortgages, deeds of trust
and security interests granted by the Borrower or any of its
Subsidiaries in favor of Shawmut.
SECTION 5.1.9. CLOSING FEES, EXPENSES.
(a) The Borrower shall have paid to the
Agent all of the fees then due and owing under the
Fee Letter;
(b) The Agent shall have received for
its own account, or for the account of each Lender,
as the case may
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be, all fees, costs and expenses due and payable
pursuant to Sections 3.4 and 10.3, if then invoiced.
SECTION 5.1.10. COMPLIANCE CERTIFICATE. The Agent
shall have received a Compliance Certificate, duly executed
and completed by the Borrower, with any calculations being
made with respect to the debt as of the Effective Date and any
calculations being made with respect to cash flow as of the
end of the immediately preceding Fiscal Quarter.
SECTION 5.2. ALL BORROWINGS. The obligation of each Lender to
fund any Loan on the occasion of any Borrowing (including the initial
Borrowing) shall be subject to the satisfaction of each of the
conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. COMPLIANCE WITH WARRANTIES, NO
DEFAULT, ETC. Both before and after giving effect to any
Borrowing (but, if any Default of the nature referred to in
Section 8.1.5 shall have occurred with respect to any other
Indebtedness, without giving effect to the application,
directly or indirectly, of the proceeds thereof) the following
statements shall be true and correct:
(a) the representations and warranties
set forth in Article VI shall be true and correct
with the same effect as if then made (unless stated
to relate solely to an earlier date, in which case
such representations and warranties shall be true and
correct as of such earlier date);
(b) except as disclosed by the Borrower
to the Agent and the Lenders pursuant to Section 6.7:
(i) no labor controversy,
litigation, arbitration or governmental
investigation or proceeding shall be pending
or, to the knowledge of the Borrower,
threatened against the Borrower, any of its
Subsidiaries or the General Partner which, if
adversely determined, is reasonably likely to
materially adversely affect the Borrower's
consolidated business, operations, assets,
revenue, properties or prospects (with
respect to the Borrower's ability to pay or
repay the Obligations) or which purports to
affect the legality, validity or
enforceability of this Agreement, the Notes
or any other Loan Document; and
(ii) no development shall have
occurred in any labor controversy,
litigation, arbitration or
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governmental investigation or proceeding
disclosed pursuant to Section 6.7 which, if
adversely determined, is reasonably likely to
materially adversely affect the Borrower's
consolidated business, operations, assets,
revenues, properties or prospects (with
respect to the Borrower's ability to pay or
repay the Obligations); and
(c) no Default shall have then occurred
and be continuing, and neither the Borrower, nor any
of its Subsidiaries are in material violation of any
law or governmental regulation or court order or
decree.
SECTION 5.2.2. BORROWING REQUEST. The Agent shall
have received a Borrowing Request for such Borrowing. Each of
the delivery of a Borrowing Request and the acceptance by the
Borrower or the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date
of such Borrowing (both immediately before and after giving
effect to such Borrowing and the application of the proceeds
thereof) the statements made in Section 5.2.1 are true and
correct.
SECTION 5.2.3. SATISFACTORY LEGAL FORM. All documents
executed or submitted pursuant hereto by or on behalf of the
Borrower or any of its Subsidiaries shall be satisfactory in
form and substance to the Agent and its counsel; the Agent and
its counsel shall have received all information, approvals,
opinions, documents or instruments as the Agent or its counsel
may reasonably request.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into
this Agreement and to make Loans hereunder, each of the Borrower and
the General Partner represents and warrants to the Agent and each
Lender as set forth in this Article VI on the date hereof and as of
the date of each Loan made hereunder.
SECTION 6.1. ORGANIZATION, ETC. (a) The Borrower is a limited
partnership duly organized and validly existing under the laws
of the State of Colorado and is duly qualified to do business
in the States of Colorado and New York, the only other
jurisdiction(s) in which the conduct or contemplated conduct of
its business or the ownership or lease of its assets requires
such qualification (except where the failure to do so would
not have a material adverse effect on the business, operations
or financial condition of the Borrower). No other filing,
recording, publishing or other act with an Official Body is
necessary or appropriate in connection with the existence or
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the business of the Borrower other than those which have been
made or done.
(b) Each Subsidiary of the Borrower is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of incorporation,
and is duly qualified to do business in each jurisdiction in
which the conduct of its business or the ownership or lease of
its assets would require such qualification.
(c) The General Partner is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Colorado. The General Partner is duly
qualified and in good standing in all jurisdictions in which
the conduct of its business or the ownership or lease of its
assets requires such qualification (except where the failure
to do so would not have a material adverse effect on the
business, operations or financial condition of the General
Partner).
(d) The Borrower and the General Partner, and
each of the Borrower's Subsidiaries, has full partnership or
corporate power and authority, respectively, and holds all
requisite governmental licenses, permits and other approvals
to enter into and perform its respective Obligations under
this Agreement, the Notes and each other Loan Document to
which it is a party and holds all requisite material
governmental licenses, permits and other approvals to own and
hold under lease its property and to conduct its business
substantially as currently conducted by it.
(e) The General Partner is the sole general
partner of the Borrower and owns 100% of the outstanding
general partnership interests in the Borrower, free and clear
of all Liens or other encumbrances other than those interests
which represent the rights to receive certain distributions
from the Borrower to Jones Intercable and which are pledged to
NationsBank of Texas, N.A., as Collateral Agent for certain
secured parties, pursuant to that certain Security Agreement
dated as of December 8, 1992 between Jones Intercable and
NationsBank of Texas, N.A.
SECTION 6.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The
execution, delivery and performance by and on behalf of the Borrower
of this Agreement, the Notes and each other Loan Document are within
the Borrower's and the General Partner's powers, have been duly
authorized by all necessary action, and do not
(i) contravene the Borrower's or the
General Partner's Organic Documents;
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(ii) contravene (x) any law or
governmental regulation or court decree or order
binding on or affecting the Borrower or the General
Partner or (y) any contractual restriction binding on
or affecting the General Partner or the Borrower
which contravention is reasonably likely to have a
material adverse effect on the Borrower's
consolidated business, operations, assets, revenues,
properties or prospects (with respect to the
Borrower's ability to pay or repay the Obligations);
or
(iii) result in, or require the creation
or imposition of, any Lien on any of the Borrower's
or the General Partner's properties (other than the
Lien of the Security Agreement.
SECTION 6.3. GOVERNMENT APPROVAL, REGULATION, ETC. Other than
as set forth in Item 6.3 of the Disclosure Schedule or those which
have been obtained and are in full force and effect, no authorization
or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other Person is required
for the due execution, delivery or performance by the General Partner
of its Subordination Agreement or by the Borrower of this Agreement,
the Notes or any other Loan Document. Neither the Borrower nor any of
its Subsidiaries is an "INVESTMENT COMPANY" within the meaning of the
Investment Company Act of 1940, as amended, or a "HOLDING COMPANY", or
a "SUBSIDIARY COMPANY" of a "HOLDING COMPANY", or an "AFFILIATE" of a
"HOLDING COMPANY" or of a "SUBSIDIARY COMPANY" of a "HOLDING COMPANY",
within the meaning of the Public Utility Holding Company Act Of 1935,
as amended.
SECTION 6.4. VALIDITY, ETC. This Agreement constitutes, and
the Notes and each other Loan Document executed by the Borrower will,
on the due execution and delivery thereof, constitute, the legal,
valid and binding obligations of the Borrower, enforceable in
accordance with their respective terms. The Partnership Agreement and
the Subordination Agreement constitute the legal, valid and binding
obligations of the General Partner enforceable in accordance with
their respective terms.
SECTION 6.5. FINANCIAL INFORMATION. The balance sheet of the
Borrower as at September 30, 1994, and the related statements of
operations, cash flow and partners' capital, copies of which have been
furnished to the Agent and each Lender, have been prepared in
accordance with GAAP consistently applied, and present fairly the
financial condition of the Borrower as at the dates thereof and the
results of its operations for the periods then ended.
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SECTION 6.6. NO MATERIAL ADVERSE CHANGES. Since the date of
the financial statements described in Section 6.5, there has been no
material adverse change in the Borrower's business, assets,
properties, revenue, financial condition, operations or prospects
(with respect to the Borrower's ability to pay or repay the
Obligations).
SECTION 6.7. LITIGATION, LABOR CONTROVERSIES, ETC. Except as
disclosed in Item 6.7 ("LITIGATION") of the Disclosure Schedule, there
is no pending or, to the knowledge of the Borrower, threatened
litigation, action, proceeding, or labor controversy affecting the
Borrower, any of its Subsidiaries or the General Partner which, if
adversely determined, is reasonably likely to materially adversely
affect the business, assets, properties, revenue, financial condition,
operations or prospects (with respect to the Borrower's ability to pay
or repay the Obligations) of the Borrower, or any Subsidiary, or which
purports to affect the legality, validity or enforceability of this
Agreement, the Notes or any other Loan Document.
SECTION 6.8. SUBSIDIARIES. The Borrower has no Subsidiaries
except those Subsidiaries, if any, which the Required Lenders have
permitted the Borrower to acquire after the Effective Date.
SECTION 6.9. OWNERSHIP OF PROPERTIES. The Borrower and each of
its Subsidiaries owns good and marketable title to all of its
properties and assets, real and personal, tangible and intangible, of
any nature whatsoever (including patents, trademarks, trade names,
service marks and copyrights), free and clear of all Liens, charges or
claims (including infringement claims with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant to
Section 7.2.3.
SECTION 6.10. TAXES. Each of the Borrower and its Subsidiaries
has filed all tax returns and reports required by law to have been
filed by it and has paid all taxes and governmental charges thereby
shown to be owing, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set
aside on its books.
SECTION 6.11. PENSION AND WELFARE PLANS. Neither the Borrower,
nor any Subsidiary of the Borrower, nor any member of a Controlled
Group has established or maintained, has ever made or been obligated
to make contributions to, or is obligated to make contributions to,
any Plan or multiemployer Plan.
SECTION 6.12. ENVIRONMENTAL WARRANTIES. To the best of the
Borrower's knowledge, all facilities and property (including
underlying
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groundwater) owned or leased by the Borrower and its Subsidiaries,
have been, and continue to be, owned or leased by the Borrower and its
Subsidiaries, in material compliance with all Environmental Laws.
SECTION 6.13. REGULATIONS G, U AND X. The Borrower is not
engaged in the business or extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Loans will
be used for a purpose which violates, or would be inconsistent with,
F.R.S. Board Regulations G, U or X. Terms for which meanings are
provided in F.R.S. Board Regulation G, U or X or any regulations
substituted therefor, as from time to time in effect, are used in this
Section with such meanings.
SECTION 6.14. ACCURACY OF INFORMATION.
(a) All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower or
the General Partner in writing to the Agent or any Lender for
purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the
Borrower or the General Partner in writing to the Agent or any
Lender will be, true and accurate in every material respect on
the date as of which such information is dated or certified
and as of the date of execution and delivery of this Agreement
by the Agent and such Lender, and such information is not, or
shall not be, as the case may be, incomplete by omitting to
state any material fact necessary to make such information not
misleading.
(b) All of the information set forth in the
Disclosure Schedule and the Cable Schedule is true and
accurate in every material respect as of the Effective Date.
SECTION 6.15. CABLE AUTHORIZATIONS. The Cable Schedule
accurately and completely lists all CATV and SMATV systems currently
owned by the Borrower, and all Franchises issued or granted to the
Borrower (such Franchises, together with all renewals and extensions
thereof, are referred to collectively as the "CABLE FRANCHISES"). The
Cable Franchises constitute the only material Franchises required or
advisable in connection with the conduct by the Borrower of its
business as presently conducted. All of the Cable Franchises are duly
issued in the name of the Borrower (or are issued in some other name
but have been duly and validly assigned to the Borrower), the Borrower
has full power and authority to operate thereunder, and each such
Cable Franchise will expire on the date set forth for such Cable
Franchise in the Cable Schedule. All assets of the Cable Systems and
all Cable Franchises,
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contracts, agreements and other things necessary or advisable in
connection with the present or proposed operation of the Cable Systems
shall at all times be owned (or leased on terms and conditions
permitted hereunder) and held by the Borrower. The Cable Schedule
accurately and completely lists all agreements, if any, which are
presently in effect with public utilities for the use of public
utility facilities in connection with the Cable Systems. The Borrower
has the right and authority (contractual, by law or otherwise) to
provide pay television and related services to subscribers. The Cable
Schedule accurately and completely lists (i) all deeds, leases,
leaseholds and other interests in real property held by the Borrower,
together with accurate legal descriptions of all such real property
owned or leased by the Borrower, and (ii) all Pole Agreements and wire
line crossing agreements to which the Borrower is a party. Other than
the Cable Franchises, no Franchise has been granted with respect to
the territory covered by the Cable Franchises, nor, to the best of the
Borrower's knowledge, is any application for any such Franchise
pending. As of the date of this Agreement, there is no overbuilding of
any territory covered by the Cable Systems.
SECTION 6.16. FCC REGISTRATION AND REGULATORY COMPLIANCE. With
respect to each of the Cable Systems, there is a registration
statement on file with the FCC which fully complies with all
applicable requirements of 47 C.F.R. Part 76, Subpart B. The Borrower
is the holder of each of the FCC Licenses listed on the Cable
Schedule, each of which has the effective and expiration dates noted
on the Cable Schedule, and is, to the best of the Borrower's
knowledge, lawfully issued (and continues to exist) pursuant to the
rules and regulations of the FCC. The Borrower is presently in
compliance in all material respects with all terms and conditions of
all FCC Licenses covering the Cable Systems, all Federal, state and
local laws, all rules, regulations and administrative orders of the
FCC (other than with respect to compliance with regulations
promulgated by the FCC regarding rates and codified at,47 C.F.R.
Sections 76.922-76.924, with which, to the Borrower's knowledge, it is
in compliance in all material respects) and all state and local
commissions or authorities which are applicable to the Borrower or the
operation of the Cable Systems (including, without limitation, those
regarding signal leakage), and the foregoing permit any contemplated
and continued operation of the Cable Systems without the obtaining of
any further approvals, covenants, modifications or the taking of any
other action of any kind or nature whatsoever. The Borrower has
received no notice that any fact or any past, present or threatened
occurrence would preclude or impair its ability to obtain any FCC
License or other Franchise necessary for the operation of the Cable
Systems as currently operated or as contemplated to be operated in any
projections furnished to the Agent.
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SECTION 6.17. FRANCHISES, COPYRIGHTS AND LICENSES. The
Borrower possesses, or has the right to use, all FCC Licenses and all
other Franchises, all copyrights, all licenses (including all cable
television or broadcast licenses), all rights under agreements with
public utilities and microwave transmission companies, Pole
Agreements, and all utility easements and other rights, the absence of
which is reasonably likely to have a material adverse effect on the
business, properties, operations or conditions, financial or
otherwise, or prospects (with respect to the Borrower's ability to pay
or repay the Obligations) of the Borrower, each of which is in full
force and effect and with which the Borrower is in compliance in all
material respects, with no known conflict with the rights of others
which could affect or impair in any material manner the businesses,
properties, operations or condition, financial or otherwise, or
prospects (with respect to the Borrower's ability to pay or repay the
Obligations) of the Borrower. The General Partner or any other
Affiliate of the Borrower providing services to the Borrower, has
obtained all licenses, permits, authorizations and Franchises
necessary for the ownership of its properties used in providing
services to the Cable Systems, the conduct of its businesses in
connection with the Cable Systems as currently operated or as
contemplated to be operated (as described in any written projections
furnished to the Agent or the Lenders on or prior to the Effective
Date), in all instances in which the failure to have obtained such
licenses, permits, authorizations and Franchises could have a material
adverse impact on the businesses, properties, operations or condition,
financial or otherwise, of the Borrower. To the best of the Borrower's
knowledge, no event has occurred which permits, or after the giving of
notice or the lapse of time, or both, would permit, the revocation or
termination of any Cable Franchise, or any copyright, license, permit,
authorization or other right of the FCC so as to adversely affect in
any material manner the businesses, properties, operations or
condition, financial or otherwise, or prospects (with respect to the
Borrower's ability to pay or repay the Obligations) of the Borrower.
SECTION 6.18. COMMUNICATIONS ACT FILINGS. The Borrower has
duly and timely filed all cable television registration statements and
other filings which are required to be filed under the Communications
Act, and has complied in all other material respects with the
Communications Act (other than with respect to compliance with
regulations promulgated by the FCC regarding rates and codified at 47
C.F.R. Sections 76.922-76.924, with which, to the best of Borrower's
knowledge, it is in compliance in all material respects), including,
without limitation, the rules and regulations of the FCC relating to
the carriage of television signals. The Borrower has recorded or
deposited with and paid to the United States Copyright Office, the
Register of Copyrights and the Copyright Royalty Tribunal, all
notices, statements of account, royalty fees and other documents,
instruments and amounts required under the Copyright Act,
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and is not liable to any person for copyright infringement under the
Copyright Act.
SECTION 6.19. PARTNERSHIP AGREEMENT. The Partnership Agreement
is in full force and effect and no default or event which, with the
passage of time or notice or both, would constitute a default has
occurred and is continuing thereunder.
SECTION 6.20. NO EVENT OF DEFAULT. No Default or Event of
Default has occurred and is continuing.
SECTION 6.21. ABSENCE OF FINANCING STATEMENTS, ETC. Except
with respect to Liens permitted hereunder, there is no financing
statement, security agreement, chattel mortgage, real estate mortgage
or other document filed or recorded with any filing records, registry
or other public office, that purports to cover, affect or give notice
of any present or possible future lien on, or security interest in,
any assets or property of the Borrower or any of its Subsidiaries or
any rights relating thereto.
SECTION 6.22. MANAGEMENT FEES, ALLOCATED OVERHEAD AND GENERAL
PARTNER ADVANCES. Except as set forth in Item 6.22 of the Disclosure
Schedule, there are no Management Fees, Allocated Overhead and/or
General Partner Advances outstanding as of September 30, 1994.
ARTICLE 7.
COVENANTS
SECTION 7.1. AFFIRMATIVE COVENANTS. The Borrower agrees with
the Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrower
will perform the obligations set forth in this Section 7.1.
SECTION 7.1.1. FINANCIAL INFORMATION, REPORTS,
NOTICES, ETC. The Borrower will furnish, or will cause to be
furnished, to the Agent (for further transmission to the
Lenders) copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any
event within 60 days after the end of each of the
first three Fiscal Quarters of each Fiscal Year of
the Borrower, consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such
Fiscal Quarter and consolidated statements of
operations or income (as appropriate), partners'
equity or stockholder's equity (as appropriate), and
cash flow of the Borrower and its Subsidiaries for
such Fiscal Quarter and for the period
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commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, certified
by the president, chief financial Authorized Officer
or Treasurer of the General Partner;
(b) as soon as available and in any
event within 105 days after the end of each Fiscal
Year of the Borrower, a copy of the annual audit
report for such Fiscal Year for the Borrower and its
Subsidiaries, including therein consolidated balance
sheets of the Borrower and its Subsidiaries as of the
end of such Fiscal Year and consolidated statements
of operations or income (as appropriate), partners'
equity, or stockholders' equity (as appropriate), and
cash flow of the Borrower and its Subsidiaries for
such Fiscal Year, in each case certified (without any
Impermissible Qualification) by an independent public
accounting firm acceptable to the Agent and the
Required Lenders and accompanied by a Compliance
Certificate, executed by the General Partner, showing
(in reasonable detail and with appropriate
calculations and computations in all respects
satisfactory to the Agent) compliance with the
financial covenants set forth in Section 7.2.4 and
the resulting Applicable Margin;
(c) as soon as available and in any
event within 60 days after the end of each of the
first three Fiscal Quarters of each Fiscal Year, a
Compliance Certificate executed by the General
Partner, showing (in reasonable detail and with
appropriate calculations and computations in all
respects satisfactory to the Agent) compliance with
the financial covenants set forth in Section 7.2.4
and the resulting Applicable Margin;
(d) prior to the payment of any General
Partner Advances, a Compliance Certificate, executed
by the General Partner, showing (in reasonable detail
and with appropriate calculations and computations in
all respects satisfactory to the Agent) compliance,
both before the payment of such General Partner
Advance and after giving effect thereto, with the
financial covenants set forth in Section 7.2.4 and
the resulting Applicable Margin;
(e) as soon as possible and in any event
within three days after the occurrence of each
Default, a statement of the General Partner, setting
forth details of such Default and the action which
the Borrower has taken and proposes to take with
respect thereto;
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(f) as soon as possible and in any event
within three days after (x) becoming aware of the
occurrence of any adverse development with respect to
any litigation, action, proceeding, or labor
controversy described in Section 6.7 or (y) becoming
aware of the commencement of any labor controversy,
litigation, action, proceeding of the type described
in Section 6.7, notice thereof and copies of all
documentation relating thereto;
(g) promptly after the sending or filing
thereof, copies of all reports which the Borrower
sends to the General Partner, and all quarterly
reports on Form 10-Q and annual reports on Form 10-K
which the General Partner files with the Securities
and Exchange Commission or any national securities
exchange;
(h) as soon as practicable, and in any
event within 60 days after the end of each Fiscal
Quarter, a subscriber report setting forth for each
Cable System as of the end of such Fiscal Quarter (i)
the number of Basic Subscribers and Pay Units as of
the end of such Fiscal Quarter, (ii) the Basic
Subscriber Rate charged to subscribers during such
Fiscal Quarter, (iii) the number of Homes Passed, the
Basic Penetration Rate and Pay to Basic Ratio as of
the end of such Fiscal Quarter, (iv) upon request of
the Agent or any Lender, the number of subscribers
initiating and terminating Cable Systems service
during such Fiscal Quarter and (v) upon request by
the Agent or any Lender, an aging of the Borrower's
accounts receivable as of the end of such Fiscal
Quarter, which report shall also include a
description of any Cable Systems sold during such
Fiscal Quarter and the consideration received
therefor;
(i) promptly after the occurrence of (i)
any lapse or other termination of any Franchise
issued to the Borrower or any of its Subsidiaries,
which lapse or termination may have a material
adverse effect on the business, operations, financial
condition or prospects (with respect to the
Borrower's ability to pay or repay the Obligations)
of the Borrower or any of its Subsidiaries, (ii) any
refusal by any Official Body to renew or extend any
such Franchise, or (iii) any dispute between the
Borrower or any of its Subsidiaries and any Official
Body which, if adversely determined, is reasonably
likely to have a material adverse effect on the
business, operations, financial condition or
prospects (with respect to the Borrower's ability to
pay or repay the
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Obligations) of the Borrower or any of its
Subsidiaries, notice thereof;
(j) promptly upon their becoming
available to the Borrower, copies of (i) any periodic
or special report filed by the Borrower or any of its
Subsidiaries with the FCC or with any other Official
Body regulating the Cable Systems if (A) such report
indicates any material adverse changes in the
business, operations, financial condition or
prospects (with respect to the Borrower's ability to
pay or repay the Obligations) of the Borrower or any
of its Subsidiaries, or (B) a copy thereof is
requested by any Lender, and (ii) any material notice
or other material communication from the FCC or from
any other Official Body regulating cable systems
which specifically relates to the operation of the
Cable Systems; and
(k) such other information respecting
the condition or operations, financial or otherwise,
of the Borrower, any of its Subsidiaries or the
General Partner, as any Lender through the Agent may
from time to time reasonably request.
SECTION 7.1.2. COMPLIANCE WITH LAWS, ETC. The
Borrower will, and will cause each of its Subsidiaries to,
comply in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include
(without limitation):
(a) the maintenance and preservation of
its existence and qualification as a foreign
corporation or foreign limited partnership, as the
case may be;
(b) the maintenance in full force and
effect of all material Cable Franchises, consents,
approvals, exemptions and other actions by, and all
registrations, qualifications, designations and
declarations and other filings with, each Official
Body necessary or advisable in connection with the
execution, delivery and performance of this
Agreement, the Notes and the other Loan Documents and
the ownership and operation of the Cable Systems; and
(c) the payment, before the same become
delinquent, of all taxes, assessments and
governmental charges imposed upon it or upon its
property except to the extent being diligently
contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
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SECTION 7.1.3. MAINTENANCE OF PROPERTIES. The
Borrower will, and will cause each of its Subsidiaries to,
maintain, preserve, protect and keep its properties in good
repair, working order and condition (ordinary wear and tear
excepted), and to make necessary and proper repairs, renewals
and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless the
Borrower determines in good faith that the continued
maintenance of any of its properties is no longer economically
desirable.
SECTION 7.1.4. INSURANCE. The Borrower will, and will
cause each of its Subsidiaries to, maintain or cause to be
maintained with responsible insurance companies insurance with
respect to its properties and business (including business
interruption insurance) against such casualties and
contingencies and of such types and in such amounts as is
customary in the case of partnerships or other entities
engaged in similar businesses and will, upon request of the
Agent, furnish to each Lender at reasonable intervals (and at
least annually) a certificate of insurance with respect to all
insurance maintained by the Borrower and its Subsidiaries in
accordance with this Section.
SECTION 7.1.5. BOOKS AND RECORDS. The Borrower will,
and will cause each of its Subsidiaries to, keep books and
records which accurately reflect all of its business affairs
and transactions and permit the Agent and each Lender or any
of their respective representatives, at reasonable times and
intervals and upon reasonable notice, to visit all of its
offices, to discuss its financial matters with its officers
and independent public accountants (and the Borrower hereby
authorizes such independent public accountant to discuss the
Borrower's financial matters with each Lender or its
representatives with or without a representative of the
Borrower being present so long as the Borrower has been given
a reasonable opportunity to have a representative present) and
to examine (and, at the expense of the Borrower, photocopy
extracts from) any of its books or other corporate records.
The Borrower shall pay any fees of such independent public
accountants incurred in connection with the Agent's or, during
any period that a Default has occurred and is continuing, any
Lender's exercise of its rights pursuant to this Section.
SECTION 7.1.6. ENVIRONMENTAL COVENANTS. The Borrower
will, and will cause each of its Subsidiaries to,
(a) use and operate all of its
facilities and properties in material compliance with
all Environmental Laws, keep all
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necessary permits, approvals, certificates, licenses
and other authorizations relating to environmental
matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in
material compliance with all applicable Environmental
Laws;
(b) immediately notify the Agent and
provide copies upon receipt of all written claims,
complaints, notices or inquiries relating to the
condition of its facilities and properties or
compliance with Environmental Laws, and shall timely
defend any actions and proceedings relating to
compliance with Environmental Laws; and
(c) provide such information and
certifications the Agent may reasonably request from
time to time to evidence compliance with this Section
7.1.6.
SECTION 7.1.7. COPYRIGHT ACT FILINGS. The Borrower
will timely from time to time in accordance with applicable
law record or deposit with and pay to the United States
Copyright Office, the Register of Copyrights and/or the
Copyright Royalty Tribunal all notices, statements of account,
royalty fees and other documents, instruments and amounts
required under the Copyright Act of the United States.
SECTION 7.1.8. USE OF PROCEEDS. The Borrower shall
use the proceeds of the initial Borrowing first to repay, in
full, all amounts outstanding under the Existing Credit
Agreement, and, second, for such general corporate purposes as
the Borrower may determine appropriate (including payments of
General Partner Advances permitted under Section 7.2.7).
Thereafter, the Borrower shall use the proceeds of all
additional Borrowings, if any, for such general corporate
purposes as the Borrower may determine appropriate. No
proceeds of any Borrowing will be used to purchase or carry
any "MARGIN STOCK", as defined in F.R.S. Board Regulation U.
SECTION 7.2. NEGATIVE COVENANTS. The Borrower agrees with the
Agent and each Lender that, until all Commitments have terminated and
all Obligations have been paid and performed in full, the Borrower
will comply with the obligations set forth in this Section 7.2.
SECTION 7.2.1. BUSINESS ACTIVITIES. The Borrower will
not, and will not permit any of its Subsidiaries to, engage in
any business activity, except for the ownership and operation
of the
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Cable Systems and such activities as may be incidental or
related thereto.
SECTION 7.2.2. INDEBTEDNESS. The Borrower will not,
and will not permit any of its Subsidiaries to, create, incur,
assume or suffer to exist or otherwise become or be liable in
respect of any Indebtedness, other than, without duplication,
the following:
(a) Indebtedness in respect of the Loans
and other Obligations;
(b) until the date of the initial
Borrowing, the Indebtedness identified in Item
7.2.2(b) ("INDEBTEDNESS TO BE PAID") of the
Disclosure Schedule;
(c) Indebtedness existing as of the
Effective Date which is identified in Item 7.2.2(c)
("ONGOING INDEBTEDNESS") of the Disclosure Schedule;
(d) Indebtedness incurred by the
Borrower or any of its Subsidiaries to a vendor of
any assets to finance its acquisition of such assets
which, when added to the aggregate principal amount
of Indebtedness permitted pursuant to clause (f) of
this Section 7.2.2, does not exceed $1,000,000;
(e) unsecured Indebtedness incurred in
the ordinary course of business (including open
accounts extended by suppliers on normal trade terms
in connection with purchases of goods and services,
but excluding any Indebtedness incurred through the
borrowing of money or in the form of Contingent
Liabilities);
(f) Indebtedness in respect of
Capitalized Lease Liabilities which, when added to
the aggregate principal amount of Indebtedness
permitted pursuant to clause (d) of this Section
7.2.2, does not exceed $1,000,000;
(g) Indebtedness of the Borrower in
respect of Hedging Obligations arising under
agreements entered into with the Agent or any other
Lender; and
(h) Indebtedness in the form of General
Partner Advances which are at all times subordinate
to the Loans and all other amounts due to the Lenders
hereunder pursuant to the terms of the Subordination
Agreement;
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provided, however, no Indebtedness otherwise permitted by clause (d), (j) or
(g) shall be incurred if, before or after giving effect to the incurrence
thereof, any Default shall have occurred and be continuing.
SECTION 7.2.3. LIENS. The Borrower will not, and will
not permit any of its Subsidiary to, incur, assume or suffer
to permit subsidiaries to, exist any Lien upon any of its
property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens securing payment of the
Obligations, granted pursuant to any Loan Document;
(b) Until the date of the initial
Borrowing, Liens securing payment of the Indebtedness
of the type permitted and described in clause (b) of
Section 7.2.2;
(c) Liens described in Item 7.2.3(c) of
the Disclosure Schedule which were granted prior to
the Effective Date to secure payment of the
Indebtedness of the type permitted and described in
clause (c) of Section 7.2.2;
(d) Liens granted to secure payment of
the Indebtedness of the type permitted and described
in clause (d) of Section 7.2.2 and covering only
those assets acquired with the proceeds of such
Indebtedness;
(e) Liens for taxes, assessments or
other governmental charges or levies not at the time
delinquent or thereafter payable without penalty or
being diligently contested in good faith by
appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set
aside on its books;
(f) Liens of carriers, warehousemen,
mechanics, materialmen and landlords incurred in the
ordinary course of business for sums not overdue or
being diligently contested in good faith by
appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set
aside on its books;
(g) Liens incurred in the ordinary
course of business in connection with workmen's
compensation, unemployment insurance or other forms
of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases
and contracts (other than for borrowed money) entered
into in the ordinary course of business or to secure
obligations on surety or appeal bonds; and
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(h) Judgment Liens in existence less
than 30 days after the entry thereof or with respect
to which execution has been stayed or the payment of
which is covered in full (subject to a customary
deductible) by insurance maintained with responsible
insurance companies.
SECTION 7.2.4. FINANCIAL CONDITION. The Borrower will
not permit:
(a) Its Leverage Ratio at any time
during the periods set forth below to be greater than
the ratio set forth opposite such periods:
Period Maximum Leverage Ratio
------ ----------------------
Effective Date - 12/31/96 4.50:1
1/1/97 - 09/30/98 4.00:1
10/1/98 and thereafter 3.50:1
(b) Its Interest Coverage Ratio at any
time to be less than 2.00:1.
(c) Its Pro-Forma Debt Service Ratio at
any time beginning on the Effective Date and
continuing through December 31, 1997 to be less than
1.25:1, and will not permit the Pro-Forma Debt
Service Ratio at any time thereafter to be less than
1.50:1.
SECTION 7.2.5. INVESTMENTS. The Borrower will not,
and will not permit any of its Subsidiaries to, make, incur,
assume or suffer to exist any Investment in any other Person,
except (without duplication):
(a) the Investments existing on the
Effective Date and described in Item 7.2.5(a)
("ONGOING INVESTMENTS") of the Disclosure Schedule;
(b) Investments permitted as Capital
Expenditures; and
(c) Cash Equivalent Investments;
provided, however, that any Investment which when made complies with the
requirements of the definition of the term "CASH EQUIVALENT INVESTMENT" may
continue to be held notwithstanding that such Investment if made thereafter
would not comply with such requirements.
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SECTION 7.2.6. RESTRICTED PAYMENTS, ETC. On and at
all times after the Effective Date:
(a) the Borrower will not, and will not
permit any of its Subsidiaries to, declare, pay or
make any dividend or distribution (in cash, property
or obligations) with respect to any partnership
interest of the Borrower or stock of the Subsidiaries
or on account of the purchase, redemption, retirement
or acquisition of any partnership interest of the
Borrower or stock of the Subsidiaries; and
(b) the Borrower will not, and will not
permit any of its Subsidiaries to, make any deposit
for any of the foregoing purposes.
SECTION 7.2.7. MANAGEMENT FEES, ALLOCATED OVERHEAD
AND GENERAL PARTNER ADVANCES. The Borrower will not, and will
not permit any of its Subsidiaries to, pay any amounts with
respect to Management Fees, Allocated Expenses or General
Partner Advances if, either before or after giving effect to
such payments, a Default shall have occurred and be
continuing, or if such payments violate the terms of the
Subordination Agreement.
SECTION 7.2.8. CONSOLIDATION, MERGER, ETC. The
Borrower will not, and will not permit any of its Subsidiaries
to, liquidate or dissolve, consolidate with, or merge into or
with, any other corporation, or purchase or otherwise acquire
all or substantially all of the assets of any Person (or of
any division thereof) except:
(a) any such Subsidiary may liquidate or
dissolve voluntarily into, and may merge with and
into, the Borrower or any other Subsidiary, and the
assets or stock of any Subsidiary may be purchased or
otherwise acquired by the Borrower or any other
Subsidiary; and
(b) so long as no Default has occurred
and is continuing or would occur after giving effect
thereto, the Borrower or any of its Subsidiaries may
purchase all or substantially all of the assets of
any Person, or acquire such Person by merger,
provided that such purchase or acquisition (i) is not
a Material Acquisition, and (ii) involves a Person or
assets of a Person engaged in the CATV or SMATV
business.
SECTION 7.2.9. ASSET DISPOSITIONS, ETC. The Borrower
will not, and will not permit any of its Subsidiaries to,
sell, transfer,
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lease, contribute or otherwise convey, or grant options,
warrants or other rights with respect to, all or any portion
of its assets (including accounts receivable and capital stock
of any Subsidiaries) to any Person, unless after giving effect
to such transactions, individually or in the aggregate, the
number of Basic Subscribers would not decrease by 25% or more
from the number of Basic Subscribers immediately prior to such
transaction and no Default or Event of Default exists or would
exist after giving effect to such transactions.
SECTION 7.2.10. MODIFICATION OF CERTAIN AGREEMENTS.
The Borrower will not consent to any amendment, supplement or
other modification of any of the terms or provisions contained
in, or applicable to, its Partnership Agreement or the
Subordination Agreement.
SECTION 7.2.11. TRANSACTIONS WITH AFFILIATES. Except
for Management Fees, Allocated Overhead and General Partner
Advances, payable in accordance with Section 7.2.7 and the
terms of the Subordination Agreement, the Borrower will not,
and will not permit any of its Subsidiaries to, enter into, or
cause, suffer or permit to exist any arrangement or contract
with any of its Affiliates other than those permitted by
Section 2.2(n) of the Partnership Agreement, and any
arrangement or contract which is fair and equitable to the
Borrower or such Subsidiary and is an arrangement or contract
of the kind which would be entered into by a prudent Person in
the position of the Borrower or such Subsidiary with a Person
which is not one of its Affiliates.
SECTION 7.2.12. NEGATIVE PLEDGES, RESTRICTIVE
AGREEMENTS, ETC. The Borrower will not, and will not permit
any of its Subsidiaries to, enter into any agreement
(excluding this Agreement, any other Loan Document and any
agreement governing any Indebtedness permitted by clause (d)
of Section 7.2.2 as to the assets financed with the proceeds
of such Indebtedness) prohibiting:
(a) the creation or assumption of any
Lien upon properties, revenues or assets, whether now
owned or hereafter acquired, or the ability of the
Borrower to amend or otherwise modify this Agreement
or any other Loan Document; or
(b) the ability of any Subsidiary to
make any payments, directly or indirectly, to the
Borrower by way of dividends, advances, repayments of
loans or advances,
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reimbursements of management and other intercompany
charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement
which restricts the ability of any such Subsidiary to
make any payment, directly or indirectly, to the
Borrower.
SECTION 7.2.13. NO CREATION OF PENSION PLANS. The
Borrower will not, and will not permit any of its Subsidiaries
to, establish or maintain or become obligated to make
contributions to any Plan or multiemployer Plan.
SECTION 7.2.14. ACQUISITION OF REAL PROPERTY
INTERESTS. At any time on or after the Effective Date, the
Borrower will not, and will not permit its Subsidiaries to,
acquire (i) any fee or leasehold interest in real property
(other than any such interest owned by the Borrower as of the
Effective Date) with a fair market value in excess of
$1,000,000, or (ii) any fee or leasehold interest in real
property (other than any such interest owned by the Borrower
as of the Effective Date) if the fair market value of such
interest when added together with the fair market value of all
other such interests, would exceed $1,000,000; unless prior to
or contemporaneous with such acquisition, the Borrower, at his
own cost and expense, takes all steps necessary to grant the
Agent, for the benefit of the Lenders, a first priority
mortgage Lien thereon and, in the case of real property, the
Borrower also obtains title insurance coverage in an amount,
containing such terms and exceptions and issued by an
insurance company, acceptable to the Agent in the Agent's
reasonable discretion, with respect to such property and such
legal opinions with respect thereto as the Agent may
reasonably request.
ARTICLE 8.
EVENTS OF DEFAULT
SECTION 8.1. LISTING OF EVENTS OF DEFAULT. Each of the
following events or occurrences described in this Section 8.1 shall
constitute an "EVENT OF DEFAULT".
SECTION 8.1.1. NON-PAYMENT OF OBLIGATIONS. The
Borrower shall default in the payment or prepayment when due
of any principal of any Loan, or the Borrower shall default
(and such default shall continue unremedied for a period of
three Business Days or more) in the payment when due of any
interest on any Loan, or the Borrower shall default (and such
default shall continue unremedied for a period of five days or
more) in the payment when due of any commitment fee or any
other Obligation.
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SECTION 8.1.2. BREACH OF WARRANTY. Any representation
or warranty of the Borrower made or deemed to be made
hereunder or in any other Loan Document or any other writing
or certificate furnished by or on behalf of the Borrower to
the Agent or any Lender for the purposes of or in connection
with this Agreement or any such other Loan Document (including
any certificates delivered pursuant to Article V) or any
representation or warranty made by the General Partner in the
Subordination Agreement is or shall be incorrect when made in
any material respect.
SECTION 8.1.3. NON-PERFORMANCE OF CERTAIN COVENANTS
AND OBLIGATIONS. The Borrower shall default in the due
performance and observance of any of its obligations under
Section 7.1.2(a) (with respect only to maintenance and
preservation of partnership existence) or Section 7.2 or the
Borrower or the General Partner shall default in the due
performance and observance of their respective obligations
under the Subordination Agreement or Section 4.1 of the
Security Agreement.
SECTION 8.1.4. NON-PERFORMANCE OF THE OTHER COVENANTS
AND OBLIGATIONS. The Borrower shall default in the due
performance and observance of any other agreement contained
herein or in any other Loan Document, and such default shall
continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Agent or
any Lender.
SECTION 8.1.5. DEFAULT ON OTHER INDEBTEDNESS. A
default shall occur in the payment when due (subject to any
applicable grace period), whether by acceleration or
otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) having, individually or in the
aggregate, a principal amount in excess of $250,000 of the
Borrower or any of its Subsidiaries, or a default shall occur
in the performance or observance of any obligation or
condition with respect to such Indebtedness if the effect of
such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any
applicable period of time sufficient to permit the holder or
holders of such Indebtedness, or any trustee or agent for such
holders, to cause such Indebtedness to become due and payable
prior to its expressed maturity.
SECTION 8.1.6. JUDGMENTS. Any judgment or order for
the payment of money in excess of $100,000 (unless fully
covered by insurance (subject to a reasonable and customary
deductible) where liability has been admitted by the
applicable insurance carrier)
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shall be rendered against the Borrower or any of its
Subsidiaries and either:
(a) enforcement proceedings shall have
been commenced by any creditor upon such judgment or
order; or
(b) there shall be any period of 30
consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION 8.1.7. CHANGE IN CONTROL. Any Change in
Control shall occur.
SECTION 8.1.8. BANKRUPTCY, INSOLVENCY, ETC. The
Borrower, any of its Subsidiaries or the General Partner
shall:
(a) become insolvent or generally fail
to pay, or admit in writing its inability or
unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce
in, the appointment of a trustee, receiver,
sequestrator or other custodian for the Borrower, any
of its Subsidiaries or the General Partner or any
property of any thereof, or make a general assignment
for the benefit of creditors;
(c) in the absence of such application,
consent or acquiescence, permit or suffer to exist
the appointment of a trustee, receiver, sequestrator
or other custodian for the Borrower, any of its
Subsidiaries or the General Partner or for a
substantial part of the property of any thereof, and
such trustee, receiver, sequestrator or other
custodian shall not be discharged within 60 days,
provided that the Borrower, each Subsidiary and the
General Partner hereby expressly authorize the Agent
and each Lender to appear in any court conducting any
relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the
Loan Documents;
(d) permit or suffer to exist the
commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of
the Borrower, any of its Subsidiaries or the General
Partner, and, if any such cage or proceeding is not
commenced by the Borrower, such Subsidiary or the
General Partner,
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such case or proceeding shall be consented to or
acquiesced in by the Borrower, such Subsidiary or the
General Partner or shall result in the entry of an
order for relief or shall remain for 60 days
undismissed, provided that the Borrower, each
Subsidiary and the General Partner hereby expressly
authorizes the Agent and each Lender to appear in any
court conducting any such case or proceeding during
such 60 day period to preserve, protect and defend
their rights under the Loan Documents; or
(e) take any partnership or corporate
action authorizing, or in furtherance of, any of the
foregoing.
SECTION 8.1.9. PARTNERSHIP AGREEMENT. There shall
occur any default under the Partnership Agreement.
SECTION 8.1.10. IMPAIRMENT OF SECURITY, ETC. Any Loan
Document (or, in the case of the General Partner, the
Subordination Agreement), or any Lien granted thereunder,
shall (except in accordance with its terms), in whole or in
part, terminate, cease to be effective or cease to be the
legally valid, binding and enforceable obligation of the
Borrower (or, in the case of the Subordination Agreement, the
General Partner), the Borrower, the General Partner or any
other party shall, directly or indirectly, contest in any
manner such effectiveness, validity, binding nature or
enforceability, or any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien,
subject only to those exceptions expressly permitted by such
Loan Document.
SECTION 8.1.11. FAILURE TO OBTAIN OR CESSATION OF
AUTHORIZATION, ETC. Any consent, approval, exemption,
registration, qualification, designation, declaration, filing,
or other action or undertaking now or hereafter obtained in
connection with this Agreement (other than matters referred to
in Section 8.1.12 hereof), the Notes or the other Loan
Documents or any such action or undertaking now or hereafter
necessary or advisable to make this Agreement, the Notes or
the other Loan Documents legal, valid, enforceable and
admissible in evidence is not obtained or shall have ceased to
be in full force and effect or shall have been modified or
amended or shall have been held to be illegal or invalid and
the Borrower shall have been unsuccessful in curing such
illegality or invalidity within a reasonable time and the
Required Lenders shall have determined in good faith (which
determination shall be conclusive) that such event or
occurrence may have a material adverse effect on the Agent's
or the Lenders' rights under this Agreement, any Note or any
other Loan Document.
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SECTION 8.1.12. FRANCHISE AGREEMENT. Any Franchise
Agreement(s) pursuant to which the Borrower serves more than
5% of the Basic Subscribers or any other license, permit,
lease, easement, conduit occupancy right, Pole Agreement,
certificate, consent, approval, authorization or agreement
granted by the FCC or by any other Official Body with
jurisdiction over the Cable Systems or by any public utility
or third party lessor, whether presently existing or hereafter
granted to or obtained by the Borrower, the cancellation or
termination of which would have a material adverse effect on
the Borrower or the continued operation of the Cable Systems
viewed as a whole (collectively, for purposes of this Section
8.1.12, "MATERIAL AGREEMENT"), shall expire without renewal or
shall be suspended or revoked, and shall not be replaced, or
the Borrower shall become subject to any injunction or other
order with respect to, such Franchise Agreement or Material
Agreement that materially adversely affects or which is
reasonably likely to materially adversely affect (both in the
sole reasonable judgment of the Required Lenders) the
business, operations, financial condition or prospects (with
respect to the Borrower's ability to pay or repay the
Obligations) of the Borrower.
SECTION 8.2. ACTION IF BANKRUPTCY. If any Event of Default
described in clauses (a) through (d) of Section 8.1.8 shall occur, the
Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding
Loans and all other Obligations shall automatically be and become
immediately due and payable, without notice or demand.
SECTION 8.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of
Default (other than any Event of Default described in clauses (a)
through (d) of Section 8.1.8) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Agent, upon the
direction of the Required Lenders, shall by notice to the Borrower
declare all or any portion of the outstanding principal amount of the
Loans and other Obligations to be due and payable and/or the
Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations
which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or
presentment, and/or, as the case may be, the Commitments shall
terminate.
ARTICLE 9.
THE AGENT
SECTION 9.1. ACTIONS. Each Lender hereby appoints Shawmut as
it its Agent under and for purposes of this Agreement, the Notes and
each
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other Loan Document. Each Lender authorizes the Agent to act on behalf
of such Lender under this Agreement, the Notes and each other Loan
Document and, in the absence of other written instructions from the
Required Lenders received from time to time by the Agent (with respect
to which the Agent agrees that it will comply, except as otherwise
provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof,
together with such powers as may be reasonably incidental thereto.
Each Lender hereby indemnifies (which indemnity shall survive any
termination of this Agreement) the Agent, pro rata according to such
Lender's Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, the Agent in any way relating to or arising out of
this Agreement, the Notes and any other Loan Document, including
reasonable attorneys' fees; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding
to have resulted solely from the Agent's gross negligence or willful
misconduct. The Agent shall not be required to take any action
hereunder, under the Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement, the Notes
or any other Loan Document, unless it is indemnified hereunder to its
satisfaction. If any indemnity in favor of the Agent shall be or
become, in the Agent's determination, inadequate, the Agent may call
for additional indemnification from the Lenders and cease to do the
acts indemnified against hereunder until such additional indemnity is
given.
SECTION 9.2. FUNDING RELIANCE, ETC. Unless the Agent shall
have been notified by telephone, confirmed in writing, by any Lender
by 5:00 p.m., Hartford, Connecticut time, on the day prior to a
Borrowing that such Lender will not make available the amount which
would constitute its Percentage of such Borrowing on the date
specified therefor, the Agent may assume that such Lender has made
such amount available to the Agent and, in reliance upon such
assumption, may make available to the Borrower a corresponding amount.
If and to the extent that such Lender shall not have made such amount
available to the Agent, such Lender and the Borrower severally agree
to repay the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date the Agent
made such amount available to the Borrower to the date such amount is
repaid to the Agent, in the case of the Borrower, at the rate of
interest then applicable for Base Rate Loans, and in the case of any
Lender, at the Federal Funds Rate.
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SECTION 9.3. EXCULPATION. Neither the Agent nor any of its
directors, officers, employees or agents shall be liable to any Lender
for any action taken or omitted to be taken by it under this Agreement
or any other Loan Document, or in connection herewith or therewith,
except for its own willful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for
the effectiveness, enforceability, validity or due execution of this
Agreement or any other Loan Document, nor for the creation, perfection
or priority of any liens purported to be created by any of the Loan
Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any
inquiry respecting the performance by the Borrower of its obligations
hereunder or under any other Loan Document. Any such inquiry which may
be made by the Agent shall not obligate it to make any further inquiry
or to take any action. The Agent shall be entitled to rely upon advice
of counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which the Agent believes to be
genuine and to have been presented by a proper Person.
SECTION 9.4. SUCCESSOR. The Agent may resign as such at any
time. If the Agent at any time shall resign, the Borrower may appoint
another Lender as a successor Agent which shall thereupon become the
Agent hereunder, provided, however, that the appointment of any Lender
which was not a Lender on the Effective Date shall be subject to the
prior written approval of the Required Lenders, which approval shall
not be unreasonably withheld. If no successor Agent shall have been so
appointed by the Borrower, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving notice of
resignation, then the retiring Agent may, on behalf of the Borrower,
appoint a successor Agent, which shall be one of the Lenders or a
commercial banking institution organized or licensed under the laws of
the U.S. (or any State thereof) or a U.S. branch or agency of a
commercial banking institution, and having combined capital, surplus
and undivided profits of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such
successor Agent shall be entitled to receive from the retiring Agent
such documents of transfer and assignment as such successor Agent may
reasonably request, and shall thereupon succeed to and become vested
with all rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's
resignation hereunder as the Agent, the provisions of
(a) this Article IX shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
the Agent under this Agreement; and
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(b) Section 10.3 and Section 10.4 shall continue
to inure to its benefit.
SECTION 9.5. LOANS BY SHAWMUT. Shawmut shall have the same
rights and powers with respect to (x) the Loans made by it or any of
its Affiliates, and (y) the Notes held by it or any of its Affiliates
as any other Lender and may exercise the same as if it were not the
Agent. Shawmut and its Affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with, the Borrower or
any Subsidiary or Affiliate of the Borrower as if Shawmut were not the
Agent hereunder.
SECTION 9.6. CREDIT DECISIONS. Each Lender acknowledges that
it has, independently of the Agent and each other Lender, and based on
such Lender's review of the financial information of the Borrower,
this Agreement, the other Loan Documents (the terms and provisions of
which being satisfactory to such Lender) and such other documents,
information and investigations as such Lender has deemed appropriate,
made its own credit decision to extend its Commitments. Each Lender
also acknowledges that it will, independently of the Agent and each
other Lender, and based on such other documents, information and
investigations as it shall deem appropriate at any timer continue to
make its own credit decisions as to exercising or not exercising from
time to time any rights and privileges available to it under this
Agreement or any other Loan Document
SECTION 9.7. DEFAULTING LENDERS. Notwithstanding anything to
the contrary contained in this Agreement or any of the other Loan
Documents, any Lender that fails (i) to make available to the Agent
its pro rata share of any Loan or (ii) to comply with the provisions
of Section 4.8 with respect to making dispositions and arrangements
with the other Lenders, where such Lender's share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata
share of such payments due and payable to all of the Lenders, in each
case as, when and to the full extent required by the provisions of
this Credit Agreement, shall be deemed delinquent (a "DELINQUENT
LENDER") and shall be deemed a Delinquent Lender until such time as
such delinquency is satisfied. A Delinquent Lender shall be deemed to
have assigned any and all payments due to it from the Borrower,
whether on account of outstanding Loans, interest, fees or otherwise,
to the remaining nondelinquent Lenders for application to, and
reduction of, their respective pro rata shares of all outstanding
Loans. The Delinquent Lender hereby authorizes the Agent to distribute
such payments to the nondelinquent Lenders in proportion to their
respective pro rata shares of all outstanding Loans. A Delinquent
Lender shall be deemed to have satisfied in full a delinquency when
and if, as a result of application of the
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assigned payments to all outstanding Loans of the nondelinquent
Lenders, the Lenders' respective pro rata shares of all outstanding
Loans have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency.
SECTION 9.8. HOLDERS OF NOTES. The Agent may deem and treat
the payee of any Note as the absolute owner or purchaser thereof for
all purposes hereof until it shall have been furnished in writing with
a different name by such payee or by a subsequent holder, assignee or
transferee.
SECTION 9.9. DISCLOSURE. The Borrower agrees that in addition
to disclosures made in accordance with standard and customary banking
practices any Lender may disclose information obtained by such Lender
pursuant to this Agreement to assignees or participants and potential
assignees or participants hereunder; provided that such assignees or
participants or potential assignees or participants shall agree (a) to
treat in confidence such information unless such information otherwise
becomes public knowledge, (b) not to disclose such information to a
third party, except as required by law or legal process and (c) not to
make use of such information for purposes of transactions unrelated to
such contemplated assignment or participation.
SECTION 9.10. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE
BORROWER. If any assignee Lender is an Affiliate of the Borrower, then
any such assignee Lender shall have no right to vote as a Lender
hereunder or under any of the other Loan Documents for purposes of
granting consents or waivers or for purposes of agreeing to amendments
or other modifications to any of the Loan Documents or for purposes of
making requests to the Agent pursuant to Section 8.3, and the
determination of the Required Lenders shall for all purposes of this
Agreement and the other Loan Documents be made without regard to such
assignee Lender's interest in any of the Loans. If any Lender sells a
participating interest in any of the Loans to a participant, and such
participant is the Borrower or an Affiliate of the Borrower, then such
transferor Lender shall promptly notify the Agent of the sale of such
participation. A transferor Lender shall have no right to vote as a
Lender hereunder or under any of the other Loan Documents for purposes
of granting consents or waivers or for purposes of agreeing to
amendments or modifications to any of the Loan Documents or for
purposes of making requests to the Agent pursuant to Section 8.3 to
the extent that such participation is beneficially owned by the
Borrower or any Affiliate of the Borrower, and the determination of
the Required Lenders shall for all purposes of this Agreement and the
other Loan Documents be made without regard to the interest of such
transferor Lender in the Loans to the extent of such participation.
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SECTION 9.11. COPIES, ETC. The Agent shall give prompt notice
to each Lender of each notice or request required or permitted to be
given to the Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the
Borrower). The Agent will distribute to each Lender each document or
instrument received for its account and copies of all other
communications received by the Agent from the Borrower for
distribution to the Lenders by the Agent in accordance with the terms
of this Agreement.
ARTICLE 10.
MISCELLANEOUS PROVISIONS
SECTION 10.1. WAIVERS, AMENDMENTS, ETC. The provisions of this
Agreement and of each other Loan Document may from time to time be
amended, modified or waived, if such amendment, modification or waiver
is in writing and consented to by the Borrower and the Required
Lenders; provided, however, that no such amendment, modification or
waiver which would:
(a) modify any requirement hereunder that any
particular action be taken by all the Lenders or by the
Required Lenders shall be effective unless consented to by
each Lender;
(b) modify this Section 10.1, change the
definition of "REQUIRED LENDERS", increase any Commitment
Amount or change the Percentage of any Lender, reduce any fees
described in Article III, release any collateral security,
except as otherwise specifically provided in any Loan Document
or extend any Commitment Termination Date shall be made
without the consent of each Lender and each holder of a Note;
(c) extend the due date for, or reduce or forgive
the amount of, any scheduled reduction of the Commitment
Amount or any scheduled repayment or prepayment of principal
of or interest on any Loan (or reduce the principal amount of
or rate of interest on any Loan) shall be made without the
consent of the holder of that Note evidencing such Loan; or
(d) affect adversely the interests, rights or
obligations of the Agent qua the Agent shall be made without
consent of the Agent
No failure or delay on the part of the Agent, any Lender or the holder of any
Note in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the
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Borrower in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by the Agent, any Lender or the
holder of any Note under this Agreement or any other Loan Document shall,
except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 10.2. NOTICES. All notices and other communications
provided to any party hereto under this Agreement or any other Loan
Document shall be in writing or by Telex or by facsimile and
addressed, delivered or transmitted to such party at its address,
Telex or facsimile number set forth below its signature hereto or, if
applicable, set forth in such Lender's Lender Assignment Agreement or
at such other address, Telex or facsimile number as may be designated
by such party in a notice to the other parties. Any notice, if mailed
and properly addressed with postage prepaid or if properly addressed
and sent by prepaid courier service, shall be deemed given when
received; any notice, if transmitted by Telex or facsimile, shall be
deemed given when transmitted (answerback confirmed in the case of
Telexes).
SECTION 10.3. PAYMENT OF COSTS AND EXPENSES. The Borrower
agrees to pay on demand all reasonable expenses of the Agent
(including the fees and reasonable out-of-pocket expenses of counsel
to the Agent and of local counsel) in connection with:
(a) the negotiation, preparation, syndication,
execution and delivery of this Agreement and of each other
Loan Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as
may from time to time hereafter be required, whether or not
the transactions contemplated hereby are consummated;
(b) the filing, recording, refiling or
rerecording of the Security Agreement and any Uniform
Commercial Code financing statements relating thereto and all
amendments, supplements and modifications to any thereof and
any and all other documents or instruments of further
assurance required to be filed or recorded or refiled or
rerecorded by the terms hereof or of the Security Agreement;
and
(c) the preparation and review of the form of any
document or instrument relevant to this Agreement or any other
Loan Document.
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The Borrower further agrees to pay, and to save the Agent and the Lenders
harmless from all liability for, any stamp or other taxes which may be payable
in connection with the execution or delivery of this Agreement, the borrowings
hereunder, or the issuance of the Notes or any other Loan Documents. The
Borrower also agrees to reimburse the Agent and each Lender upon demand for all
reasonable out-of-pocket expenses (including reasonable attorneys' fees and
disbursements) incurred by the Agent or such Lender in connection with (x) the
negotiation of any restructuring or "WORK-OUT", whether or not consummated, of
any Obligations and (y) the enforcement of any Obligations.
SECTION 10.4. INDEMNIFICATION. In consideration of the
execution and delivery of this Agreement by each Lender and the
extension of the Commitments, the Borrower hereby indemnifies,
exonerates and holds the Agent and each Lender and each of their
respective officers, directors, employees and agents (collectively,
the "INDEMNIFIED PARTIES") free and harmless from and against any and
all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective
of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "INDEMNIFIED
LIABILITIES"), incurred by the Indemnified Parties or any of them as a
result of, or arising out of, or relating to:
(a) any transaction financed or to be financed in
whole or in part, directly or indirectly, with the proceeds of
any Loan;
(b) the entering into and performance of this
Agreement and any other Loan Document by any of the
Indemnified Parties (including any action brought by or on
behalf of the Borrower as the result of any determination by
the Required Lenders pursuant to Article V not to fund any
Borrowing);
(c) any investigation, litigation or proceeding
related to any environmental cleanup, audit, compliance or
other matter relating to the protection of the environment or
the Release by the Borrower or any of its Subsidiaries of any
Hazardous Materials; or
(d) the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission, discharging
or releases from, any real property owned or operated by the
Borrower or any of its Subsidiaries of any Hazardous Materials
(including any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the control
of, the Borrower or such Subsidiaries,
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except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party solely by reason of the relevant Indemnified
Party's gross negligence or willful misconduct. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law.
SECTION 10.5. SURVIVAL. The Obligations of the Borrower under
Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the
Lenders under Section 9 shall in each case survive any termination of
this Agreement, the payment in full of all of the Obligations and the
termination of all of the Commitments. The representations and
warranties made by the Borrower and the General Partner in this
Agreement and in each other Loan Document shall survive the execution
and delivery of this Agreement and each such other Loan Document.
SECTION 10.6. SEVERABILITY. Any provision of this Agreement or
any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this Agreement or
such Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 10.7. HEADINGS. The various headings of this Agreement
and of each other Loan Document are inserted for convenience only and
shall not affect the meaning or interpretation of this Agreement or
such other Loan Document or any provisions hereof or thereof.
SECTION 10.8. EXECUTION IN COUNTERPARTS, EFFECTIVENESS. This
Agreement may be executed by the parties hereto in several
counterparts, by hand or facsimile signatures, each of Which shall be
deemed to be an original and all of which, when taken together, shall
constitute one and the same agreement. This Agreement shall become
effective when counterparts hereof executed on behalf of the Borrower,
the General Partner and each Lender (or notice thereof satisfactory to
the Agent) shall have been received by the Agent and notice thereof
shall have been given by the Agent to the Borrower, the General
Partner and each Lender.
SECTION 10.9. GOVERNING IN LAW; ENTIRE AGREEMENT. THIS
AGREEMENT, THE NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF CONNECTICUT WITHOUT GIVING EFFECT TO THE CHOICE OF LAW
PROVISIONS THEREOF. This Agreement, the Notes and the other
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Loan Documents constitute the entire understanding among the parties
hereto with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto.
SECTION 10.10. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns provided, however, that:
(a) the Borrower may not assign or transfer its
rights or obligations hereunder without the prior written
consent of the Agent and all Lenders; and
(b) the rights of sale, assignment and transfer
of the Lenders are subject to Section 10.11.
SECTION 10.11. SALE AND TRANSFER OF LOANS AND NOTES;
PARTICIPATION IN LOANS AND NOTES. Each Lender may assign, or sell
participations in, its Loans and Commitments to one or more other
Persons in accordance with this Section 10.11.
SECTION 10.11.1. ASSIGNMENTS. Any Lender may at any
time assign and delegate to one or more commercial banks or
other financial institutions (each Person to whom such
assignment and delegation is to be made, being hereinafter
referred to as an "ASSIGNEE LENDER"), a percentage of such
Lender's total Loans and Commitments (which assignment and
delegation shall be of a constant, and not a varying,
percentage of the assigning Lender's Loans and Commitments);
provided, that, (i) the aggregate principal amount of Loans
and Commitments to be assigned at any one time is at least
equal to $5,000,000.00, (ii) after giving effect to any such
assignment, in the case of Shawmut, Shawmut shall continue to
be the registered holder of an aggregate principal amount of
Loans and Commitments at least equal to $12,500,000.00
multiplied by a fraction the numerator of which is equal to
$25,000,000 minus the aggregate principal amount of scheduled
repayments of Loans made by the Borrower as, of the time of
the assignment and the denominator of which is $25,000,000,
(iii) Shawmut (or any subsequent Lender who is Agent) shall
never hold an aggregate principal amount of Loans and
Commitments which is less than any other lender holds and
(iv), in the case of a Lender, such Lender shall continue to
be the registered holder of at least fifty percent (50%) of
the aggregate principal amount of Loans and Commitments
originally held by such Lender. Each Assignee Lender must
furnish if applicable, the withholding tax exemption forms
required under Section 4.6. Additionally, the Borrower and the
Agent shall be entitled to continue to deal solely and
directly
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with such Lender in connection with the interests so assigned
and delegated to an Assignee Lender until:
(a) written notice of such assignment and
delegation, together with payment instructions, addresses and
related information with respect to such Assignee Lender,
shall have been given to the Borrower and the Agent by such
Lender and such Assignee Lender;
(b) such Assignee Lender shall have executed and
delivered to the Borrower and the Agent a Lender Assignment
Agreement, accepted by the Agent; and
(c) the processing fees described below shall
have been paid.
From and after the date that the Agent accepts a Lender Assignment Agreement,
(x) the Assignee Lender thereunder shall be deemed automatically to have become
a party hereto and to the extent that rights and obligations hereunder have
been assigned and delegated to such Assignee Lender in connection with such
Lender Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and under the other Loan Documents; and (y) the assigning Lender, to
the extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement, shall be
released from its obligations hereunder and under the other Loan Documents.
Within five Business Days after its receipt of notice that the Agent has
received an executed Lender Assignment Agreement, the Borrower shall execute
and deliver to the Agent (for delivery to the relevant Assignee Lender) new
Notes evidencing such Assignee Lender's assigned Loans and Commitments and, if
the assigning Lender has retained Loans and Commitments hereunder, replacement
Notes in the principal amount of the Loans and Commitments retained by the
assigning Lender hereunder (such Notes to be in exchange for, but not in
payment of, those Notes then held by the assigning Lender). Each such Note
shall be dated the date of the predecessor Notes. The assigning Lender shall
mark the predecessor Notes "EXCHANGED" and deliver them to the Borrower.
Accrued interest on that part of the predecessor Notes evidenced by the new
Notes, and accrued fees, shall be paid as provided in the Lender Assignment
Agreement. Accrued interest on that part of the predecessor Notes evidenced by
the replacement Notes shall be paid to the assigning Lender. Accrued interest
and accrued fees shall be paid at the same time or time provided in the
predecessor Notes and in this Agreement. The assigning Lender or the Assignee
Lender must also pay a processing fee to the Agent upon delivery of any Lender
Assignment Agreement in the amount of $2,500. Any attempted assignment and
delegation not made in accordance with this Section 10.11.1 shall be null and
void. Nothing in this Section 10.11.1 shall prevent or prohibit any Lender from
pledging its rights (but not its obligations
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to make Loans) under this Agreement and/or its Loans and/or its Notes hereunder
to a Federal Reserve Bank in support of borrowings made by such Lender from
such Federal Reserve Bank.
SECTION 10.11.2. PARTICIPATIONS. Any Lender may at
any time sell to one or more commercial banks or other Persons
(each of such commercial banks and other Persons being herein
called a "PARTICIPANT") participating interests in any of the
Loans, Commitments, or other interests of such Lender
hereunder; provided, however, that:
(a) no participation contemplated in
this Section 10.11.2 shall relieve such Lender from
its Commitments or its other obligations hereunder or
under any other Loan Document;
(b) such Lender shall remain solely
responsible for the performance or its Commitments
and such other obligations;
(c) the Borrower and the Agent shall
continue to deal solely and directly with such Lender
in connection with such Lender's rights and
obligations under this Agreement and each of the
other Loan Documents;
(d) no Participant, unless such
Participant is an Affiliate of such Lender, or is
itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action
hereunder or under any other Loan Document, except
that such Lender may agree with any Participant that
such Lender will not, without such Participant's
consent, take any action of the type described in
clause (b) or (c) of Section 10.1; and
(e) the Borrower shall not be required
to pay any amount under Section 4.6 that is greater,
than the amount which it would have been required to
pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender
SECTION 10.12. OTHER TRANSACTIONS. Nothing contained herein
shall preclude the Agent or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or
any other Loan Document, with the Borrower or any of its Affiliates in
which
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the Borrower or such Affiliate is not restricted hereby from engaging
with any other Person.
SECTION 10.13. NONRECOURSE OBLIGATIONS. Anything contained in
this Agreement, the Notes or the other Loan Documents to the contrary
notwithstanding, in any action or proceeding brought on this
Agreement, the Notes, the other Loan Documents or the Indebtedness
evidenced by the Notes, no deficiency judgment shall be enforced
against the separate assets of the General Partner (other than
distributions to the General Partner made in violation of Section
7.2.6 or 7.2.7 hereof), and the liability of the General Partner for
any amounts due under this Agreement, the Notes and the other Loan
Documents shall be limited to the interest of the General Partner in
the collateral described in the Loan Documents, its interest in any
other assets of the Borrower and any distributions made in violation
of Section 7.2.6 or 7.2.7. Subject to the preceding sentence, the
Agent may join any present or future general partners of the Borrower
in their capacities as general partners, as defendants in any legal
action it undertakes to enforce the Agent's and the Lenders' rights
and remedies under this Agreement, the Notes and the other Loan
Documents. Notwithstanding the foregoing, nothing set forth herein
shall be deemed to prohibit the Agent and the Lenders from taking
legal action(s) and enforcing any judgment arising therefrom against a
present or future general partner of the Borrower arising by reason of
any fraud or intentional misconduct of such general partner.
SECTION 10.14. CONSENT TO JURISDICTION. THE BORROWER HEREBY
AGREES THAT ANY LITIGATION BROUGHT BY THE AGENT OR THE LENDERS AND
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
AGENT, THE LENDERS, THE GENERAL PARTNER OR THE BORROWER SHALL BE
BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF CONNECTICUT OR IN
THE UNITED STATES DISTRICT COURT FOR CONNECTICUT; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION
OF THE COURTS OF THE STATE OF CONNECTICUT AND OF THE UNITED STATES
DISTRICT COURT FOR CONNECTICUT FOR THE PURPOSE OF ANY SUCH LITIGATION
AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY
NON-APPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION.
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THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE TO THE
BORROWER'S ADDRESS PROVIDED HEREIN. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER
MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
SECTION 10.15. WAIVER OF JURY TRIAL, ETC. THE AGENT, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS, THE GENERAL PARTNER OR
THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A
PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT
AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT. EXCEPT AS PROHIBITED BY LAW, THE BORROWER HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN
THE FIRST SENTENCE OF THIS SECTION 10.15 ANY SPECIAL, EXEMPLARY,
PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES IN THE ABSENCE OF A COURT OF COMPETENT
JURISDICTION'S FINAL NON-APPEALABLE FINDING THAT SUCH CLAIM AROSE
SOLELY AS A DIRECT RESULT OF THE AGENT'S AND/OR LENDERS' NEGLIGENCE OR
WILLFUL MISCONDUCT AND, IN THE CASE OF SUCH A FINDING, THE AGENT OR
LENDERS, AS THE CASE MAY BE, SHALL PAY ALL REASONABLE ATTORNEY'S
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FEES AND COSTS INCURRED BY THE BORROWER IN CONNECTION WITH SUCH
FINDINGS. THE BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE AGENT OR THE LENDERS HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE AGENT OR THE LENDERS WOULD NOT SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE AGENT AND THE LENDERS
HAVE BEEN INDUCED TO ENTER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
TO WHICH THEY ARE A PARTY BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
SECTION 10.16. PREJUDGMENT REMEDY WAIVER. THE BORROWER
ACKNOWLEDGES THAT THE FINANCING EVIDENCED HEREBY IS A COMMERCIAL
TRANSACTION WITHIN THE MEANING OF CHAPTER 903a OF THE CONNECTICUT
GENERAL STATUTES. THE BORROWER HEREBY WAIVES ITS RIGHT TO NOTICE AND
PRIOR COURT HEARING OR COURT ORDERED UNDER CONNECTICUT GENERAL
STATUTES SECTIONS 52-a ET. SEQ. AS AMENDED OR UNDER ANY OTHER STATE OR
FEDERAL LAW WITH RESPECT TO ANY AND ALL PREJUDGMENT REMEDIES THE AGENT
AND/OR LENDERS MAY EMPLOY TO ENFORCE THEIR RIGHTS AND REMEDIES
HEREUNDER. MORE SPECIFICALLY, THE BORROWER ACKNOWLEDGES THAT THE
AGENT'S AND/OR LENDERS' ATTORNEY MAY, PURSUANT TO CONNECTICUT GENERAL
STATUTES SECTION 52-278f, ISSUE A WRIT FOR A PREJUDGMENT REMEDY
WITHOUT SECURING A COURT ORDER. THE BORROWER ACKNOWLEDGES AND RESERVES
ITS RIGHT TO NOTICE AND A HEARING SUBSEQUENT TO THE ISSUANCE OF A WRIT
FOR PREJUDGMENT REMEDY AS AFORESAID AND THE AGENT AND LENDERS
ACKNOWLEDGES BORROWER'S RIGHT TO SAID HEARING SUBSEQUENT TO THE
ISSUANCE OF SAID WRIT.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed on the day and year first above written.
Signed, Sealed and Delivered
In the Presence Of:
CABLE TV FUND 11-B, LTD.
By: Jones Intercable, Inc.,
Its General Partner
/s/ KATHERINE A. LEVOY By: /s/ J. ROY POTTLE
- ---------------------------- --------------------------
Name: J. Roy Pottle
Title: Treasurer
/s/ DOLORES M. GILLESPIE Address: 9697 East Mineral Avenue
- ---------------------------- Englewood, CO 80112
Facsimile: (303) 790-7324
SHAWMUT BANK CONNECTICUT, N.A.,
Individually and as Agent
By: /s/ ROBERT F. WEST
- ---------------------------- --------------------------
Name: Robert F. West
Title: Director
Address: 777 Main Street
- ---------------------------- Hartford, CT 06115
Facsimile: (203) 986-5367
Lender's Percentage: 50%
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By: /s/ JAMES E. MORRIS
- ---------------------------- --------------------------
Name: James E. Morris
Title: Authorized Signature
Address: c/o Credit Lyonnais New York
- ---------------------------- Branch
1301 Avenue of the Americas
New York, NY 10019
Facsimile: (212) 261-3421
Lender's Percentage: 50%
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