************************************************************
FRONTIERVISION OPERATING PARTNERS, L.P.
-----------------------------
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 19, 1997
$800,000,000
------------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
J.P. MORGAN SECURITIES INC.,
as Syndication Agent
and
CIBC Inc.,
as Documentation Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience of reference only.
Page
Section 1. Definitions and Accounting Matters.................................................................. 1
1.01 Certain Defined Terms............................................................................ 1
1.02 Accounting Terms and Determinations.............................................................. 33
1.03 Types of Loans................................................................................... 34
1.04 Subsidiaries; Designation of Unrestricted Subsidiaries........................................... 34
Section 2. Commitments, Loans and Prepayments.................................................................. 35
2.01 Loans 35
2.02 Borrowings....................................................................................... 38
2.03 Changes of Commitments........................................................................... 38
2.04 Commitment Fee................................................................................... 39
2.05 Lending Offices.................................................................................. 39
2.06 Several Obligations; Remedies Independent........................................................ 39
2.07 Loan Accounts; Promissory Notes.................................................................. 40
2.08 Optional Prepayments and Conversions or Continuations of Loans................................... 40
2.09 Mandatory Prepayments and Reductions of Commitments.............................................. 41
Section 3. Payments of Principal and Interest.................................................................. 45
3.01 Repayment of Loans............................................................................... 45
3.02 Interest 48
Section 4. Payments; Pro Rata Treatment; Computations; Etc..................................................... 49
4.01 Payments 49
4.02 Pro Rata Treatment............................................................................... 50
4.03 Computations..................................................................................... 51
4.04 Minimum Amounts.................................................................................. 51
4.05 Certain Notices.................................................................................. 51
4.06 Non-Receipt of Funds by the Administrative Agent................................................. 52
4.07 Sharing of Payments, Etc......................................................................... 53
Section 5. Yield Protection, Etc............................................................................... 55
5.01 Additional Costs................................................................................. 55
5.02 Limitation on Types of Loans..................................................................... 56
5.03 Illegality....................................................................................... 57
5.04 Treatment of Affected Loans...................................................................... 57
5.05 Compensation..................................................................................... 58
5.06 U.S. Taxes....................................................................................... 59
(i)
Page
Section 6. Conditions Precedent................................................................................ 61
6.01 Effectiveness.................................................................................... 61
6.02 Scheduled Acquisition Loans...................................................................... 64
6.03 Initial and Subsequent Loans..................................................................... 65
6.04 Determinations by Lenders........................................................................ 66
Section 7. Representations and Warranties...................................................................... 66
7.01 Corporate Existence.............................................................................. 66
7.02 Financial Condition.............................................................................. 66
7.03 Litigation....................................................................................... 67
7.04 No Breach........................................................................................ 67
7.05 Action........................................................................................... 68
7.06 Approvals........................................................................................ 68
7.07 Use of Credit.................................................................................... 68
7.08 ERISA............................................................................................ 68
7.09 Taxes............................................................................................ 69
7.10 Investment Company Act........................................................................... 69
7.11 Public Utility Holding Company Act............................................................... 69
7.12 Material Agreements and Liens.................................................................... 69
7.13 Environmental Matters............................................................................ 70
7.14 Capitalization................................................................................... 70
7.15 Subsidiaries, Etc................................................................................ 70
7.16 True and Complete Disclosure..................................................................... 71
7.17 Franchises....................................................................................... 71
7.18 The CATV Systems................................................................................. 72
7.19 Rate Regulation.................................................................................. 75
7.20 Scheduled Acquisition Agreement.................................................................. 76
Section 8. Covenants of the Company............................................................................ 76
8.01 Financial Statements Etc......................................................................... 76
8.02 Litigation....................................................................................... 79
8.03 Existence, Etc................................................................................... 80
8.04 Insurance........................................................................................ 80
8.05 Prohibition of Fundamental Changes............................................................... 81
8.06 Limitation on Liens.............................................................................. 85
8.07 Indebtedness..................................................................................... 86
8.08 Investments...................................................................................... 87
8.09 Restricted Payments.............................................................................. 89
8.10 Certain Financial Covenants...................................................................... 90
8.11 [INTENTIONALLY OMITTED].......................................................................... 92
8.12 Interest Rate Protection Agreements.............................................................. 92
8.13 Subordinated Indebtedness; Other Equity Interests................................................ 93
(ii)
Page
8.14 Lines of Business................................................................................ 94
8.15 Transactions with Affiliates..................................................................... 94
8.16 Use of Proceeds.................................................................................. 95
8.17 Certain Obligations Respecting Restricted Subsidiaries........................................... 95
8.18 Modifications of Certain Documents............................................................... 96
8.19 Certain Obligations Respecting the Collateral.................................................... 97
Section 9. Events of Default................................................................................... 98
Section 10. The Agents.........................................................................................103
10.01 Appointment, Powers and Immunities..............................................................103
10.02 Reliance by Administrative Agent................................................................104
10.03 Defaults........................................................................................104
10.04 Rights as a Lender..............................................................................104
10.05 Indemnification.................................................................................105
10.06 Non-Reliance on Administrative Agent and Other Lenders..........................................105
10.07 Failure to Act..................................................................................106
10.08 Resignation or Removal of Administrative Agent..................................................106
10.09 Consents under Other Loan Documents.............................................................106
10.10 The Syndication Agent and Documentation Agent...................................................107
10.11 Control Affiliates of Lenders...................................................................107
Section 11. Miscellaneous......................................................................................107
11.01 Waiver 107
11.02 Notices107
11.03 Expenses, Etc...................................................................................108
11.04 Amendments, Etc.................................................................................109
11.05 Successors and Assigns..........................................................................110
11.06 Assignments and Participations..................................................................110
11.07 Survival........................................................................................113
11.08 Captions........................................................................................113
11.09 Counterparts....................................................................................113
11.10 Governing Law; Submission to Jurisdiction.......................................................113
11.11 Waiver of Jury Trial............................................................................114
11.12 Treatment of Certain Information; Confidentiality...............................................114
11.13 Limitation of Liability.........................................................................115
(iii)
Schedules and Exhibits
SCHEDULE I - Schedule of Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Franchises
SCHEDULE V - Litigation
SCHEDULE VI - Certain Matters Related to CATV Systems
SCHEDULE VII - Certain Matters Related to Financial Statements
SCHEDULE VIII - Certain Environmental Matters
SCHEDULE IX - Certain Equity Rights
SCHEDULE X - Certain Adjustments to EBITDA
SCHEDULE XI - Financial Statements with Respect to CATV Systems
Acquired Pursuant to Scheduled Acquisitions
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Quarterly Officer's Report
EXHIBIT C-1 - Copy of Security Agreement
EXHIBIT C-2 - Copy of Amendment No. 1 to Security Agreement
EXHIBIT C-3 - Form of Amendment No. 2 to Security Agreement
EXHIBIT D-1 - Copy of Partner Pledge Agreement
EXHIBIT D-2 - Copy of Amendment No. 1 to Partner Pledge
Agreement
EXHIBIT D-3 - Copy of Amendment No. 2 to Partner Pledge
Agreement
EXHIBIT D-4 - Form of Amendment No. 3 to Partner Pledge
Agreement
EXHIBIT E-1 - Copy of Stock Pledge Agreement
EXHIBIT E-2 - Copy of Amendment No. 1 to Stock Pledge
Agreement
EXHIBIT E-3 - Copy of Amendment No. 2 to Stock Pledge
Agreement
EXHIBIT E-4 - Copy of Amendment No. 3 to Stock Pledge
Agreement
EXHIBIT F - Form of Subsidiary Guarantee Agreement
EXHIBIT G - Form of Opinion of Counsel to
the Obligors
EXHIBIT H - Form of Opinion of Special New York
Counsel to Chase
EXHIBIT I - Form of Confidentiality Agreement
(iv)
Credit Agreement
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 19,
1997, between: FRONTIERVISION OPERATING PARTNERS, L.P., a limited partnership
duly organized and validly existing under the laws of the State of Delaware (the
"Company"); each of the lenders that is a signatory hereto identified under the
caption "Lenders" on the signature pages hereto and each lender that becomes a
"Lender" after the date hereof pursuant to Section 11.06(b) hereof
(individually, a "Lender" and, collectively, the "Lenders"); THE CHASE MANHATTAN
BANK, as administrative agent for the Lenders (in such capacity, together with
its successors in such capacity, the "Administrative Agent"); J.P. MORGAN
SECURITIES INC., as syndication agent (in such capacity, the "Syndication
Agent") and CIBC INC., as documentation agent (in such capacity, the
"Documentation Agent" and, together with the Syndication Agent and the
Administrative Agent, the "Agents").
The Company, certain of the Lenders (the "Existing Lenders"), the
Administrative Agent, the Syndication Agent and CIBC Inc., as Co-Agent, are
parties to an Amended and Restated Credit Agreement dated as of April 9, 1996
(as heretofore modified and supplemented and in effect on the date of this
Agreement, the "Existing Credit Agreement") providing, subject to the terms and
conditions thereof, for the making of revolving credit and term loans to the
Company. The parties hereto now wish to amend the Existing Credit Agreement by,
among other things, increasing the amount of credit available thereunder to
$800,000,000 (to finance, inter alia, the Scheduled Acquisitions and the
Subsequent Acquisitions (as hereinafter defined) of various cable television
systems and the payment of fees, commissions, and expenses payable in connection
therewith and for the ongoing working capital requirements of the Company and
its Subsidiaries), by adding the additional Lenders as parties thereto and by
amending certain of the other provisions thereof and, in that connection, wish
to amend and restate the Existing Credit Agreement in its entirety.
Accordingly, the parties hereto hereby agree that the Existing Credit
Agreement shall, as of the date hereof (but subject to the satisfaction of the
conditions precedent specified in Section 6 hereof), be amended and restated in
its entirety as follows:
Section 1. Definitions and Accounting Matters
1.01 Certain Defined Terms. As used herein, the following terms shall
have the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
1
"Acquired System" shall have the meaning assigned to such term in
Section 8.05(b) hereof.
"Acquisition Agreements" shall mean, collectively, the Scheduled
Acquisition Agreements and each Subsequent Acquisition Agreement.
"Acquisitions" shall mean, collectively, the Scheduled Acquisitions
and the Subsequent Acquisitions.
"Acquisition Environmental Surveys" shall mean, with respect to any
Acquisition, environmental surveys and assessments prepared by a firm of
licensed engineers (familiar with the identification of toxic and hazardous
substances), based upon physical on-site inspections by such firm of each of the
sites and facilities to be owned by the Company and its Subsidiaries (after
giving effect to such Acquisition), as well as an historical review of the uses
of such sites and facilities.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" shall mean any Person that directly or indirectly
controls, or is under common control with, or is controlled by, the Company and,
if such Person is an individual, any member of the immediate family (including
parents, spouse, children and siblings) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or trust.
As used in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise), provided that, in any event, any
Person that owns directly or indirectly securities having 5% or more of the
voting power for the election of directors or other governing body of a
corporation or 5% or more of the partnership or other ownership interests of any
other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, (a) no individual shall be an Affiliate solely by reason of his or
her being a director, officer or employee of the Company or any of its
Restricted Subsidiaries and (b) none of the Wholly Owned Restricted Subsidiaries
of the Company shall be Affiliates.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan on the signature pages hereof or such
other office of such Lender (or of an affiliate of such Lender) as such Lender
may from time to time specify to the
2
Administrative Agent and the Company as the office by which its Loans of such
Type are to be made and maintained.
"Applicable Margin" shall mean, with respect to the Loans of any
Class, or with respect to commitment fee, the respective rates indicated below
for Loans of such Type, or for commitment fee, opposite the applicable Debt
Ratio indicated below for such Payment Period:
Incremental Facility
and
Tranche A Tranche B
Debt Revolving Loans Term Loan Term Loan
Ratio: Base Rate Eurodollar Base Rate Eurodollar Base Rate Eurodollar Commitment Fee
- ------------------------------------------------------------------------------------------------------------------------------------
$ 6.50x .................... 1.000% 2.250% 1.000% 2.250% 1.125% 2.375% .375%
<6.50x ..................... .750% 2.000% .750% 2.000% 1.125% 2.375% .375%
and
$6.00x
<6.00x ..................... .500% 1.750% .500% 1.750% 1.125% 2.375% .375%
and
$5.50x
<5.50x ..................... .250% 1.500% .250% 1.500% .875% 2.125% .250%
and
$5.00x
<5.00x ..................... .125% 1.375% .125% 1.375% .875% 2.125% .250%
and
$4.50x
<4.50x ..................... .000% 1.250% .000% 1.250% .875% 2.125% .250%
and
$4.00x
<4.00x ..................... .000% 1.125% .000% 1.125% .875% 2.125% .250%
For purposes hereof, a "Payment Period" shall mean (i) initially, the
period commencing on the Effective Date to but not including the first Quarterly
Date thereafter for which financial statements for the first fiscal quarter of
the Company ending on or after the date three months after the Effective Date
are available, provided that in no event shall the initial Payment Period end
prior to June 30, 1998 and (ii) thereafter, the period commencing on a Quarterly
Date to but not including the immediately following Quarterly Date.
The Debt Ratio for the initial Payment Period shall be deemed to be
greater than 6.50x. The Debt Ratio for any Payment Period after the initial
Payment Period shall be determined on the basis of a certificate of a Senior
Officer setting forth a calculation of the Debt Ratio as at the last day of the
fiscal quarter immediately preceding such Payment Period (i.e. the Debt Ratio
for the Payment Period commencing June 30, 1998 shall be determined
3
on the basis of the Debt Ratio as at March 31, 1998, the Debt Ratio for the
Payment Period commencing September 30, 1998 shall be determined on the basis of
the Debt Ratio as at June 30, 1998 and so forth), each of which certificates
shall be delivered together with the financial statements for the fiscal quarter
on which such calculation is based.
Anything in this Agreement to the contrary notwithstanding, the
Applicable Margin shall be the highest rates provided for above for the
respective Class and Type of Loan, (i) during any period when a Specified
Default shall have occurred and be continuing, or (ii) if the certificate of a
Senior Officer shall not be delivered as provided above prior to the beginning
of any Payment Period (but only, in the case of this clause (ii), with respect
to the portion of such Payment Period prior to the delivery of such
certificate).
"A-R Acquisition" shall mean the acquisition by the Company of CATV
Systems in Maine from A-R Cable Services-ME, Inc. ("A-R"), pursuant to the Asset
Purchase Agreement dated as of May 8, 1997 between A-R and the Company, which
acquisition was consummated on October 31, 1997.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 11.06 hereof), and accepted by the Administrative Agent, in
the form of Exhibit A or any other form approved by the Administrative Agent.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans that bear interest at rates based
upon the Base Rate.
"Basic Documents" shall mean, collectively, the Loan Documents and the
Scheduled Acquisition Agreements.
"Basle Accord" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
4
"Business Day" shall mean any day (a) on which commercial banks are
not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by the Company with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean, for any period, expenditures
(including, without limitation, the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Company or any of its
Restricted Subsidiaries to acquire or construct fixed assets, plant and
equipment (including renewals, improvements and replacements, but excluding
repairs and excluding also any Acquisition) during such period computed in
accordance with GAAP.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Casualty Event" shall mean, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Restricted Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other compensation in
an aggregate amount exceeding $1,000,000.
"CATV System" shall mean any cable distribution system that receives
broadcast signals by antennae, microwave transmission, satellite transmission or
any other form of transmission and that amplifies such signals and distributes
them to Persons who pay to receive such signals.
"Change of Control" shall mean that the Company or FrontierVision
Capital shall be required pursuant to the provisions of the Senior Subordinated
Debt Documents (or any other agreement or instrument relating to or providing
for any other Subordinated Indebtedness), or FrontierVision Holdings or
FrontierVision Holdings Capital Corporation under the Senior Discount Debt
Documents, shall be required, to redeem or repurchase, or make an offer to
redeem or repurchase, all or any portion of the Subordinated Indebtedness, or
the Senior Discount Debt, as a result of a change of control (as defined in the
Senior Subordinated Debt Documents or any other agreement or instrument relating
to or providing for any other Subordinated Indebtedness or the Senior Discount
Debt Documents).
5
"Chase" shall mean The Chase Manhattan Bank and its successors.
"Class" shall have the meaning assigned to such term in Section 1.03
hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall have the meaning assigned to such term in the
Security Agreement.
"Collateral Account" shall have the meaning assigned to such term in
Section 4.01 of the Security Agreement.
"Commitments" shall mean, collectively, the Revolving Credit
Commitments, the Facility A Term Loan Commitments, the Facility B Term Loan
Commitments and the Incremental Facility Term Loan Commitments.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.08 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Control Affiliate" shall mean, with respect to any Person (the
"Relevant Person"), (a) any Subsidiary of the Relevant Person, (b) any other
Person of which the Relevant Person is a Subsidiary and (c) any other Person
that is a Subsidiary of the Person referred to in the immediately preceding
clause (b).
"Convert", "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.08 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion) of
a Loan from one Applicable Lending Office to another.
"CoxCom" shall mean CoxCom, Inc.
"CoxCom Acquisition" shall mean the proposed acquisition by the
Company of CATV Systems in Ohio from CoxCom pursuant to the CoxCom Acquisition
Agreement.
"CoxCom Acquisition Agreement" shall mean the Asset Purchase Agreement
dated as of October 15, 1997 by and among the Company, as "Buyer" and CoxCom, as
"Seller", as amended as of December 19, 1997, and as the same shall, subject to
Section 8.18 hereof, be further modified and supplemented and in effect from
time to time.
6
"Debt Ratio" shall mean, as at any date (but subject in any event to
the provisions of Section 8.10(e) hereof), the ratio of:
(a) the sum of the aggregate amount of all Indebtedness of the
Company and its Restricted Subsidiaries and all letters of credit
contemplated by Section 8.07(e) hereof, but excluding all performance
bonds contemplated by said Section) as at such date to
(b) the product of EBITDA for the fiscal quarter ending on, or
most recently ended prior to such date times four.
"Debt Service" shall mean, for any period, the sum, for the Company
and its Restricted Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) in the case of Loans
under this Agreement, the aggregate amount of payments of principal of such
Loans that, giving effect to Commitment reductions or terminations scheduled to
be made during such period pursuant to Section 2.03 hereof, were required to be
made pursuant to Section 3.01 hereof during such period plus (b) in the case of
all other Indebtedness, all regularly scheduled payments or prepayments of
principal of such Indebtedness (including, without limitation, the principal
component of any payments in respect of Capital Lease Obligations) made or
payable during such period plus (c) all Interest Expense for such period
(excluding, however, non-cash amortization of loan facility fees and other
deferred debt costs, in each case to the extent included in determining Interest
Expense for such period).
"Default" shall mean an Event of Default or an event that with notice
or lapse of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Company or any of its Restricted Subsidiaries to any other Person, excluding (1)
any sale, assignment, transfer or other disposition of Property described in
clause (i) of Section 8.05(c) hereof to the extent the aggregate fair market
value of all such Property so disposed of by the Company and its Restricted
Subsidiaries during the term of this Agreement does not exceed $20,000,000, and
(2) any sale, assignment, transfer or other disposition of Property described in
clause (ii) or (iii) of Section 8.05(c) hereof.
"Disposition Investments" shall have the meaning assigned to such term
in Section 8.08(i)hereof.
"Dollars" and "$" shall mean lawful money of the United States of
America.
7
"Eastern Cable" shall mean Eastern Cable Corporation, Inc.
"Eastern-Kentucky Acquisition" shall mean the proposed acquisition by
the Company of CATV Systems in Kentucky from Eastern Cable pursuant to the
Eastern Cable Acquisition Agreement.
"Eastern Cable Acquisition Agreement" shall mean the Asset Purchase
Agreement to be entered into by and among the Company, as "Buyer" and Eastern
Cable, as "Seller", for a purchase price not to exceed $2,800,000, as the same
shall, subject to Section 8.18 hereof, be modified and supplemented and in
effect from time to time.
"EBITDA" shall mean, for any period, the sum, for the Company and its
Restricted Subsidiaries (determined on a consolidated basis without duplication
in accordance with GAAP), of the following:
(a) gross operating revenue for such period derived in the
ordinary course of business in respect of the CATV Systems of the
Company and its Restricted Subsidiaries (including revenues arising
from second outlets and remotes and advertising revenues, and including
pay-per-view revenues and installation fees, but excluding interest
income and unusual items) minus
(b) all operating expenses for such period, including, without
limitation, technical, programming, selling and general administration
expenses incurred by the Company and its Restricted Subsidiaries during
such period, but excluding (to the extent included in operating
expenses) depreciation, amortization, Interest Expense, any non-cash
charges (including, without limitation, non-cash pension expenses and
any Tax Payment Amount for the relevant period) plus
(c) transaction costs (including, without limitation, legal
expenses, brokerage commissions, investment banking fees and the like)
incurred in connection with (w) the Previous Acquisitions and the
Scheduled Acquisitions and this Agreement and the other transactions
that are contemplated hereby to occur on or before the Effective Date,
(x) any Subsequent Acquisition, (y) the incurrence of the Subordinated
Indebtedness or (z) the incurrence of the Senior Discount Debt, in the
case of each of the foregoing clauses (w), (x), (y) and (z), to the
extent the same are (A) paid within twelve months of the date the
respective event giving rise to such transaction costs shall occur, and
(B) expensed and not capitalized.
For purposes hereof, "gross operating revenue" and "operating expenses" shall
both be determined exclusive of extraordinary and non-recurring gains or losses,
and any gains or losses from the sale of assets. For purposes of determining
EBITDA:
8
(A) for periods prior to the date of the A-R Acquisition,
EBITDA for each day during such period attributable to the CATV Systems
acquired pursuant to the A-R Acquisition shall be deemed to be equal to
$22,710.00 (determined by the Company as provided in Schedule X
hereto);
(B) for periods prior to the date of the TCI-NE Acquisition,
EBITDA for each day during such period attributable to the CATV Systems
acquired pursuant to the TCI-NE Acquisition shall be deemed to be equal
to $11,024.00 (determined by the Company as provided in Schedule X
hereto);
(C) for periods prior to the date of the Harolds Acquisition,
EBITDA for each day during such period attributable to the CATV Systems
acquired pursuant to the Harolds Acquisition shall be deemed to be
equal to $617.00 (determined by the Company as provided in Schedule X
hereto);
(D) for periods prior to the date of the CoxCom Acquisition,
EBITDA for each day during such period attributable to the CATV Systems
acquired pursuant to the CoxCom Acquisition shall be deemed to be equal
to $52,319.00 (determined by the Company as provided in Schedule X
hereto);
(E) for periods prior to the date of the TCI-Ohio Acquisition,
EBITDA for each day during such period attributable to the CATV Systems
acquired pursuant to the TCI-Ohio Acquisition shall be deemed to be
equal to $13,903.00 (determined by the Company as provided in Schedule
X hereto);
(F) for periods prior to the date of the Eastern-Kentucky
Acquisition, EBITDA for each day during such period attributable to the
CATV Systems acquired pursuant to the Eastern-Kentucky Acquisition
shall be deemed to be equal to $1,316.00 (determined by the Company as
provided in Schedule X hereto); and
(G) for periods prior to the date of the NECMA-NE Acquisition,
EBITDA for each day during such period attributable to the CATV Systems
acquired pursuant to the NECMA-NE Acquisition shall be deemed to be
equal to $13,683.00 (determined by the Company as provided in Schedule
X hereto).
For all purposes of this Agreement (other than for purposes of EBITDA as used in
the definition of Excess Cash Flow), if during any period for which EBITDA is
being determined the Company or any of its Restricted Subsidiaries shall have
made any acquisition or disposition of any CATV System (but excluding the CATV
Systems acquired pursuant to the Acquisitions referred to in clauses (A) through
(G) above), then EBITDA shall be
9
determined on the basis of the actual results of operations of the Company and
its Restricted Subsidiaries for such period, adjusted by:
(I) in the case of a Subsequent Acquisition the aggregate
Purchase Price of which is less than or equal to $50,000,000, such
amount as the Company shall determine, reasonably and in good faith, to
be appropriate to reflect the effect of the relevant acquisitions and
dispositions during such period (and the Company shall, promptly
following the consummation of such Acquisition, notify the
Administrative Agent (which shall notify the Lenders thereof promptly)
of such amount); and
(II) in the case of a Subsequent Acquisition the aggregate
Purchase Price of which exceeds $50,000,000, such amounts as the
Company and the Majority Lenders shall agree to be appropriate to
reflect the effect of the relevant acquisitions and dispositions during
such period (provided that, in the absence of such an agreement between
the Company and the Majority Lenders, EBITDA shall be determined on a
pro forma basis for such period as if the relevant acquisition or
disposition had been made or consummated on the first day of such
period, whether or not such first day shall occur prior to the
Effective Date).
"Effective Date" shall mean the date on which the conditions to
effectiveness set forth in Section 6.01 hereof shall have been satisfied or
waived.
"Environmental Claim" shall mean, with respect to any Person, any
written or oral notice, claim, demand or other communication (collectively, a
"claim") by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"Environmental Laws" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants,
10
contaminants,chemicals or toxic or hazardous substances or wastes into the
indoor or outdoor environment, including, without limitation, ambient air, soil,
surface water, ground water, wetlands, land or subsurface strata, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, chemicals or toxic
or hazardous substances or wastes.
"Equity Rights" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"Equivalent Basic Subscribers" shall mean, as at any date, the sum of
(a) the number of Subscribers who subscribe to a CATV System at the regular
basic monthly subscription rate for such CATV System to a single household
Subscriber (exclusive of "secondary outlets", as such term is commonly
understood in the cable television industry), plus (b) the number of Subscribers
determined by dividing the aggregate dollar monthly amount billed to bulk
Subscribers (hotels, motels, apartment buildings, hospitals and the like that
pay for cable television service provided to their guests and/or tenants), by
the regular basic monthly subscription rate for basic service charged by the
CATV System in which such bulk Subscriber is located.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business that
is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which the Company is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the Company
is a member.
"Eurodollar Base Rate" shall mean, with respect to any Eurodollar Loan
for any Interest Period, the rate appearing on Page 3750 of the Dow Jones
Markets Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time
11
for any reason, then the Eurodollar Base Rate with respect to such Eurodollar
Loan for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of Chase in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Eurodollar Loans" shall mean Loans that bear interest at rates based
on rates referred to in the definition of "Eurodollar Base Rate" in this Section
1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the Eurodollar Base Rate for such Loan for such Interest Period divided by 1
minus the Reserve Requirement (if any) for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such
term in Section 9 hereof.
"Excess Cash Flow" shall mean, for any period, the sum for the
Company and its Restricted Subsidiaries (determined without duplication) of (a)
EBITDA for such period minus (b) Fixed Charges for such period plus (c) cash
receipts during such period in respect of any extraordinary or non-recurring
gains to the extent not constituting Net Available Proceeds minus (d) cash
payments during such period in respect of any extraordinary or non-recurring
losses minus (e) for any period during which the Company would be permitted to
make a Restricted Payment pursuant to clause (b) of Section 8.09 hereof, the
amount of interest accrued during such period by FrontierVision Holdings and
FrontierVision Holdings Capital Corporation in respect of the Senior Discount
Debt.
"Excluded Franchise" shall mean any Franchise for any CATV
System owned by the Company or any of its Restricted Subsidiaries that either
(a) has a remaining term of three years or less (determined as at the date of
acquisition thereof) or (b) is not material to the operations of the Company and
its Restricted Subsidiaries taken as a whole (as determined by the Majority
Lenders in their sole discretion).
"Excluded Real Property" shall mean any real property
(including any leasehold interest in real property) held by the Company or any
of its Restricted Subsidiaries unless (a) such real property (or such leasehold
interest) is material to the operations of the Company and its Restricted
Subsidiaries taken as a whole and (b) such real property (if consisting of a
leasehold interest) has a remaining term of more than three years (determined as
at the date of acquisition thereof).
12
"Existing Credit Agreement" shall have the meaning assigned to
such term in the recitals to this Agreement.
"Existing Lenders" shall have the meaning assigned to such
term in the recitals to this Agreement.
"Facility A Term Loan Commitment" shall mean, as to each
Facility A Term Loan Lender, the obligation of such Lender to make Facility A
Term Loans in an aggregate principal amount up to but not exceeding the amount
set opposite the name of such Lender on Schedule I hereto under the caption
"Facility A Term Loan Commitment" or, in the case of a Person that becomes a
Facility A Term Loan Lender pursuant to an assignment permitted under Section
11.06(b) hereof, as specified in the respective instrument of assignment
pursuant to which such assignment is effected (as the same may be reduced from
time to time pursuant to Section 2.03 hereof or increased or reduced from time
to time pursuant to assignments permitted under Section 11.06(b) hereof). The
original aggregate principal amount of the Facility A Term Loan Commitments is
$250,000,000.
"Facility A Term Loan Commitment Termination Date" shall mean
June 30, 1998.
"Facility A Term Loan Lenders" shall mean, (a) on the date
hereof, the Lenders having Facility A Term Loan Commitments on Schedule I hereto
and (b) thereafter, the Lenders from time to time holding Facility A Term Loans
and Facility A Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 11.06(b) hereof.
"Facility A Term Loans" shall mean the loans provided for by
Section 2.01(b) hereof.
"Facility B Term Loan Commitment" shall mean, as to each
Facility B Term Loan Lender, the obligation of such Lender to make Facility B
Term Loans in an aggregate principal amount up to but not exceeding the amount
set opposite the name of such Lender on Schedule I hereto under the caption
"Facility B Term Loan Commitment" or, in the case of a Person that becomes a
Facility B Term Loan Lender pursuant to an assignment permitted under Section
11.06(b) hereof, as specified in the respective instrument of assignment
pursuant to which such assignment is effected (as the same may be reduced from
time to time pursuant to Section 2.03 hereof or increased or reduced from time
to time pursuant to assignments permitted under Section 11.06(b) hereof). The
original aggregate principal amount of the Facility B Term Loan Commitments is
$250,000,000.
13
"Facility B Term Loan Commitment Termination Date" shall mean
January 30, 1998.
"Facility B Term Loan Lenders" shall mean, (a) on the date
hereof, the Lenders having Facility B Term Loan Commitments on Schedule I hereto
and (b) thereafter, the Lenders from time to time holding Facility B Term Loans
and Facility B Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 11.06(b) hereof.
"Facility B Term Loans" shall mean the loans provided for by
Section 2.01(c) hereof.
"FCC" shall mean the Federal Communications Commission or any
governmental authority substituted therefor.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Administrative Agent.
"Fixed Charges" shall mean, for any period, the sum, for the
Company and its Restricted Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) the
aggregate amount of Debt Service for such period plus (b) the aggregate amount
of taxes paid or payable in respect of the income or profit of the Company and
its Subsidiaries for such period plus (c) Capital Expenditures made by the
Company and its Restricted Subsidiaries during such period (other than Capital
Expenditures made with the proceeds of Indebtedness permitted under Section
8.07(f) hereof) plus (d) the Tax Payment Amount for such period plus (e) the
amount of Restricted Payments made to FrontierVision Holdings to pay cash
interest expense in respect of the Senior Discount Debt.
"Fixed Charges Ratio" shall mean, as at any date (but subject
in any event to the provisions of Section 8.10(e) hereof), the ratio of (a)
product of (x) the sum of EBITDA for the fiscal quarter ending on or most
recently ended prior to such date and (but without duplication of the provisions
of Section 8.10(e)) all interest income of the Company and its
14
Restricted Subsidiaries for such fiscal quarter times (y) four to (b) Fixed
Charges for the period of four fiscal quarters ending on or most recently ended
prior to such date.
"Franchise" shall mean a franchise, license, authorization or
right by contract or otherwise to construct, own, operate, promote, extend
and/or otherwise exploit any CATV System operated or to be operated by the
Company or any of its Restricted Subsidiaries granted by any state, county,
city, town, village or other local or state government authority or by the FCC.
The term "Franchise" shall include each of the Franchises set forth on Schedule
IV hereto.
"FrontierVision" shall mean FrontierVision Operating Partners,
Inc., a Delaware corporation.
"FrontierVision Capital" shall mean FrontierVision Capital
Corporation, a Delaware corporation and a Wholly Owned Subsidiary of the
Company.
"FrontierVision Holdings" shall mean FrontierVision Holdings,
L.P., a Delaware limited partnership.
"FrontierVision Inc." shall mean FrontierVision Inc., a
Delaware corporation.
"FrontierVision LP" shall mean FrontierVision Partners, L.P.,
a Delaware limited partnership or any corporation formed for the purpose of
succeeding to the assets and liabilities of FrontierVision LP in connection with
a public offering or offerings by FrontierVision LP of equity interests under
one or more effective registration statements under the Securities Act of 1933,
as amended.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those that, in accordance with the last
sentence of Section 1.02(a) hereof, are to be used in making the calculations
for purposes of determining compliance with this Agreement.
"General Partner" shall mean FrontierVision Holdings and such
other Person or Persons as may be a general partner of the Company from time to
time.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under or with
respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an agreement
to purchase, sell or lease (as lessee or lessor) Property, products, materials,
supplies or services
15
primarily for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning.
"Harolds Acquisition" shall mean the acquisition by the
Company of CATV Systems in Pennsylvania and Maryland from Harolds Cable
Television, Inc. ("Harolds") pursuant to the Asset Purchase Agreement dated as
of October 15, 1997 between Harolds and the Company, which acquisition was
consummated on October 31, 1997.
"Hazardous Material" shall mean, collectively, (a) any
petroleum or petroleum products, flammable materials, explosives, radioactive
materials, asbestos, urea formaldehyde foam insulation, and transformers or
other equipment that contain polychlorinated biphenyls ("PCB's"), (b) any
chemicals or other materials or substances that are now or hereafter become
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "extremely hazardous wastes", "restricted
hazardous wastes", "toxic substances", "toxic pollutants", "contaminants",
"pollutants" or words of similar import under any Environmental Law and (c) any
other chemical or other material or substance, exposure to which is now or
hereafter prohibited, limited or regulated under any Environmental Law.
"Incremental Facility Availability Period" shall mean the
period from and including the Effective Date to but excluding the Quarterly Date
falling on or nearest to December 31, 1999.
"Incremental Facility Commitment" shall mean, with respect to
each Incremental Facility Lender and for any Series thereof, the commitment, if
any, of such Lender to make Incremental Facility Loans of such Series (as the
same may be reduced from time to time pursuant to Section 2.03 hereof or
increased or reduced from time to time pursuant to assignments permitted under
Section 11.06(b) hereof). The amount of each Lender's Incremental Facility
Commitment of any Series shall be determined in accordance with the provisions
of Section 2.01(d) hereof. The aggregate amount of the Incremental Facility
Commitments of all Series shall not exceed $200,000,000.
"Incremental Facility Lenders" shall mean, in respect of any
Series of Incremental Facility Loans, the Lenders from time to time holding
Incremental Facility Loans and Incremental Facility Commitments of such Series
after giving effect to any assignments thereof permitted by Section 11.06(b)
hereof.
16
"Incremental Facility Loans" means the Loans provided for by
Section 2.01(d) hereof.
"Indebtedness" shall mean, for any Person: (a) obligations
created, issued or incurred by such Person for borrowed money (whether by loan,
the issuance and sale of debt securities or the sale of Property to another
Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of Property or services, other
than trade accounts payable (other than for borrowed money or capitalized
leases) arising, and accrued expenses incurred, in the ordinary course of
business so long as such trade accounts payable are payable within 90 days of
the date the respective goods are delivered or the respective services are
rendered; (c) Indebtedness of others secured by a Lien on the Property of such
Person, whether or not the respective indebtedness so secured has been assumed
by such Person; (d) obligations of such Person in respect of letters of credit
or similar instruments issued or accepted by banks and other financial
institutions for account of such Person; (e) Capital Lease Obligations of such
Person; and (f) Indebtedness of others Guaranteed by such Person.
"Information Memorandum" shall mean the confidential Senior
Financing Memorandum dated November 1997 prepared by the Company in connection
with the syndication of the Loans and Commitments hereunder.
"Initial Equityholders" shall mean, collectively, (i) J.P.
Morgan Investment Corp., (ii) 1818 II Cable Corp., (iii) Olympus Cable Corp.,
(iv) First Union Capital Partners, Inc., (v) any Control Affiliate of any of the
foregoing entities and (vi) any limited partnership of which any Control
Affiliate of any of the foregoing entities is the sole general partner (so long
as the aggregate equity interests of FrontierVision LP that shall have been
transferred to all such limited partnerships by any such entity shall not exceed
25% of the aggregate equity interests held by such entity in FrontierVision LP).
"Interest Coverage Ratio" shall mean, as at any date (but
subject in any event to the provisions of Section 8.10(e) hereof), the ratio of:
(a) the product of (x) the sum of EBITDA for the fiscal
quarter ending on, or most recently ended prior to such date and all
interest income for the Company and its Restricted Subsidiaries for
such fiscal quarter (including, without limitation, all interest
payable to the Company in respect of the cash and investments, if any,
held in the Collateral Account during such fiscal quarter) times (y)
four to
(b) Interest Expense for the period of four fiscal quarters
ending on or most recently ended prior to such date (excluding,
however, non-cash amortization of loan
17
facility fees and other deferred debt costs, in each case to the extent
included in determining Interest Expense for such period).
"Interest Expense" shall mean, for any period, the sum, for
the Company and its Restricted Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all interest
in respect of Indebtedness (including, without limitation, the interest
component of any payments in respect of Capital Lease Obligations) accrued or
capitalized during such period (whether or not actually paid during such period)
plus (b) the net amount payable (or minus the net amount receivable) under
Interest Rate Protection Agreements during such period (whether or not actually
paid or received during such period).
Notwithstanding the foregoing, if during any period for which
Interest Expense is being determined the Company shall have made or consummated
any Acquisition (including, without limitation, the Scheduled Acquisitions and
the Previous Acquisitions), then "Interest Expense" shall be determined on a pro
forma basis as if such Acquisition (and any Indebtedness incurred by the Company
or any of its Restricted Subsidiaries in connection with such Acquisition) had
been made or consummated on the first day of such period (whether or not such
first day shall occur prior to the Effective Date).
"Interest Period" shall mean, with respect to any Eurodollar
Loan, each period commencing on the date such Eurodollar Loan is made or
Converted from a Base Rate Loan or (in the event of a Continuation) the last day
of the next preceding Interest Period for such Loan and ending on the
numerically corresponding day in the first, second, third or sixth calendar
month thereafter (or, to the extent determined to be available by each Lender in
its sole discretion, nine or twelve months thereafter), as the Company may
select as provided in Section 4.05 hereof, except that each Interest Period that
commences on the last Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent calendar
month. Notwithstanding the foregoing:
(i) if any Interest Period for any Revolving Credit Loan would
otherwise end after the Revolving Credit Commitment Termination Date,
such Interest Period shall end on the Revolving Credit Commitment
Termination Date;
(ii) no Interest Period for any Facility A Term Loan may
commence before and end after any Principal Payment Date, unless, after
giving effect thereto, the aggregate principal amount of the Facility A
Term Loans having Interest Periods that end after such Principal
Payment Date shall be equal to or less than the aggregate principal
amount of the Facility A Term Loans scheduled to be outstanding after
18
giving effect to the payments of principal required to be made on such
Principal Payment Date;
(iii) no Interest Period for any Facility B Term Loan may
commence before and end after any Principal Payment Date, unless, after
giving effect thereto, the aggregate principal amount of the Facility B
Term Loans having Interest Periods that end after such Principal
Payment Date shall be equal to or less than the aggregate principal
amount of the Facility B Term Loans scheduled to be outstanding after
giving effect to the payments of principal required to be made on such
Principal Payment Date;
(iv) no Interest Period for any Incremental Facility Loan of
any Series may commence before and end after any Principal Payment
Date, unless, after giving effect thereto, the aggregate principal
amount of the Incremental Facility Loans of such Series having Interest
Periods that end after such Principal Payment Date shall be equal to or
less than the aggregate principal amount of the Incremental Facility
Loans of such Series scheduled to be outstanding after giving effect to
the payments of principal required to be made on such Principal Payment
Date;
(v) each Interest Period that would otherwise end on a day
that is not a Business Day shall end on the next succeeding Business
Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and
(vi) notwithstanding clauses (i), (ii), (iii) and (iv) above,
no Interest Period shall have a duration of less than one month and, if
the Interest Period for any Eurodollar Loan would otherwise be a
shorter period, such Loan shall not be available hereunder for such
period.
"Interest Rate Protection Agreement" shall mean, for any
Person, an interest rate swap, cap or collar agreement or similar arrangement
between such Person and one or more financial institutions providing for the
transfer or mitigation of interest risks either generally or under specific
contingencies.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such sale); (b) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of Property
from another
19
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person), but excluding any such advance, loan or
extension of credit having a term not exceeding 90 days arising in connection
with the sale of programming or advertising time by such Person in the ordinary
course of business; (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other liability of any
other Person and (without duplication) any amount committed to be advanced, lent
or extended to such Person; or (d) the entering into of any Interest Rate
Protection Agreement.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement and the other Loan Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease) relating to such Property.
"Limited Partner" shall mean FrontierVision and such other
Person or Persons as may be a limited partner of the Company from time to time.
"Loan Documents" shall mean, collectively, this Agreement and
the Security Documents.
"Loans" shall mean, collectively, the Revolving Credit Loans,
the Facility A Term Loans, the Facility B Term Loans and the Incremental
Facility Loans.
"Majority Facility A Term Loan Lenders" shall mean Lenders
having more than 50% of the aggregate outstanding principal amount of the
Facility A Term Loans, at such time (or, if the Facility A Term Loans shall not
have been made, the aggregate outstanding principal amount of the Facility A
Term Loan Commitments at such time).
"Majority Facility B Term Loan Lenders" shall mean Lenders
having more than 50% of the aggregate outstanding principal amount of the
Facility B Term Loans, at such time (or, if the Facility B Term Loans shall not
have been made, the aggregate outstanding principal amount of the Facility B
Term Loan Commitments at such time).
"Majority Incremental Facility Lenders" shall mean, with
respect to any Series of Incremental Facility Loans, Lenders having more than
50% of the aggregate outstanding principal amount of the Incremental Loans of
such Series, at such time (or, if the Incremental Facility Loans of such Series
shall not have been made, the aggregate outstanding principal amount of the
Incremental Facility Commitments of such Series at such time).
20
"Majority Lenders" shall mean Lenders having more than 50% of
the sum of (i) the aggregate amount of the Revolving Credit Commitments at such
time (or, if the Revolving Credit Commitments shall have terminated, the
aggregate amount of the Revolving Credit Loans at such time) plus (ii) the
aggregate outstanding principal amount of the Facility A Term Loans, at such
time (or, if the Facility A Term Loans shall not have been made, the aggregate
outstanding principal amount of the Facility A Term Loan Commitments at such
time) plus (iii) the aggregate outstanding principal amount of the Facility B
Term Loans, at such time (or, if the Facility B Term Loans shall not have been
made, the aggregate outstanding principal amount of the Facility B Term Loan
Commitments at such time) plus (iv) the aggregate outstanding principal amount
of the Incremental Facility Loans, at such time (or, if the Incremental Facility
Loans shall not have been made, the aggregate outstanding principal amount of
the Incremental Facility Commitments at such time).
"Majority Revolving Credit Lenders" shall mean Lenders having
more than 50% of the aggregate amount of the Revolving Credit Commitments at
such time (or, if the Revolving Credit Commitments shall have terminated, the
aggregate amount of the Revolving Credit Loans at such time).
"Margin Stock" shall mean "margin stock" within the meaning of
Regulations G, T, U and X.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Company and its Restricted Subsidiaries
taken as a whole, (b) the ability of the Company to perform its obligations
under any of the Loan Documents to which it is a party, (c) the validity or
enforceability of any of the Loan Documents, (d) the rights and remedies of the
Lenders and the Administrative Agent under any of the Loan Documents or (e) the
timely payment of the principal of or interest on the Loans or other amounts
payable in connection therewith.
"Mortgages" shall mean, collectively, one or more mortgages,
deeds of trust or collateral assignments of leasehold interest, in form and
substance satisfactory to the Administrative Agent, to effect a Lien on real
property or leasehold interests in the State where the respective Property to be
covered by such instrument is located, executed by the respective Obligor that
is the owner or lessee of such Property in favor of the Administrative Agent
(or, in the case of a deed of trust, in favor of a trustee for the benefit of
the Administrative Agent and the Lenders) pursuant to the Existing Credit
Agreement, or Section 8.19 hereof, as the case may be, covering the respective
fee or leasehold interests owned by such Obligor, as said mortgages, deeds of
trust and collateral assignments of leasehold interests shall be modified and
supplemented and in effect from time to time.
21
"Multiemployer Plan" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions have been made by the
Company or any ERISA Affiliate and that is covered by Title IV of ERISA.
"NAIC" shall mean the National Association of Insurance
Commissioners.
"NECMA-NE" shall mean New England Cablevision of
Massachusetts, Inc.
"NECMA-NE Acquisition" shall mean the proposed acquisition by
the Company of CATV Systems in Massachusetts and New Hampshire from NECMA-NE
pursuant to the NECMA-NE Acquisition Agreement.
"NECMA-NE Acquisition Agreement" shall mean the Stock Purchase
Agreement dated as of December 12, 1997 by and among FrontierVision Cable New
England, Inc., as "Buyer" and the shareholders of NECMA-NE, as "Seller", as the
same shall, subject to Section 8.18 hereof, be modified and supplemented and in
effect from time to time.
"Net Available Proceeds" shall mean:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition; and
(ii) in the case of any Casualty Event, the aggregate amount
of proceeds of insurance, condemnation awards and other compensation
received by the Company and its Restricted Subsidiaries in respect of
such Casualty Event net of (A) reasonable expenses incurred by the
Company and its Restricted Subsidiaries in connection therewith and (B)
contractually required repayments of Indebtedness to the extent secured
by a Lien on such Property and any income and transfer taxes payable by
the Company or any of its Restricted Subsidiaries in respect of such
Casualty Event.
"Net Cash Payments" shall mean, with respect to any
Disposition, the aggregate amount of all cash payments received by the Company
and its Restricted Subsidiaries directly or indirectly in connection with such
Disposition, whether at the time of such Disposition or after such Disposition
under deferred payment arrangements or Investments entered into or received in
connection with such Disposition (but excluding, in the event such Disposition
consisted in whole or in part of an exchange of CATV Systems, any cash and cash
equivalents derived from the operation of the CATV Systems acquired as part of
such exchange); provided that:
22
(a) Net Cash Payments shall be net of (i) the amount of any
legal, accounting, regulatory, title and recording tax expenses,
commissions and other fees and expenses paid by the Company and its
Restricted Subsidiaries in connection with such Disposition and (ii)
any Tax Payment Amount estimated by the Company to be payable as a
result of such Disposition, and
(b) Net Cash Payments shall be net of any repayments by the
Company or any of its Restricted Subsidiaries of Indebtedness to the
extent that (i) such Indebtedness is secured by a Lien on the Property
that is the subject of such Disposition and (ii) such Indebtedness is
repaid in connection with such Disposition.
"Notes" shall mean the promissory notes that may be executed
and delivered upon request by any Lender pursuant to Section 2.07(d) hereof and
all promissory notes delivered in substitution or exchange therefor, in each
case as the same may be modified and supplemented and in effect from time to
time.
"Obligors" shall mean, collectively, the Company, each Partner
Pledgor under and as defined in the Partner Pledge Agreement, each Stock Pledgor
under and as defined in the Stock Pledge Agreement and, effective upon the
execution and delivery of any Subsidiary Guarantee Agreement, each Restricted
Subsidiary of the Company so executing and delivering such Subsidiary Guarantee
Agreement.
"Other Equity Interests" shall mean limited partnership
interests issued by the Company in accordance with Section 8.13 hereof.
"Other Pledge Agreement" shall mean a pledge agreement
executed and delivered by a holder of Other Equity Interests in favor of the
Administrative Agent in accordance with Section 8.13(a)(iii) hereof.
"Pari Passu Obligations" shall mean, collectively, (a) the
obligations of the Company in respect of Interest Rate Protection Agreements
between the Company and a Lender (or a Control Affiliate of a Lender) permitted
under Section 8.08(g) hereof and (b) any Indebtedness of the Company or any of
its Restricted Subsidiaries to any Lender permitted under Section 8.07(e)
hereof.
"Partner Pledge Agreement" shall mean the Partner Pledge
Agreement dated as of November 9, 1995 between the Partner Pledgors referred to
therein and the Administrative Agent (a copy of which is attached as Exhibit D-1
hereto), as amended by a Amendment No. 1 thereto (a copy of which is attached as
Exhibit D-2 hereto), as further amended by Amendment No. 2 thereto (a copy of
which is attached as Exhibit D-3 hereto), as the same shall be amended by
Amendment No. 3 thereto in substantially the form attached
23
as Exhibit D-4 hereto and as the same shall be further modified and supplemented
and in effect from time to time.
"Partners" shall mean, collectively, the General Partners and
the Limited Partners of the Company from time to time.
"Partnership Agreement" shall mean the Amended and Restated
Agreement of Limited Partnership of FrontierVision Operating Partners, L.P.
dated as of September 19, 1997 by and between the Partners as the same shall,
subject to Section 8.18 hereof, be further modified and supplemented and in
effect from time to time.
"Pay TV Units" shall mean the aggregate number of premium or
pay television services to which Subscribers subscribe.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Permitted Acquisition Amount" shall mean, with respect to any
Acquisition to be consummated on any date, the sum of (a) $150,000,000 plus (b)
the aggregate amount of cash and investments held by the Administrative Agent on
such date in the Collateral Account plus (c) the Reserved Commitment Amount on
such date.
"Permitted Investments" shall mean: (a) direct obligations of
the United States of America, or of any agency thereof, or obligations
guaranteed as to principal and interest by the United States of America, or of
any agency thereof, in either case maturing not more than 90 days from the date
of acquisition thereof; (b) certificates of deposit issued by any bank or trust
company organized under the laws of the United States of America or any state
thereof and having capital, surplus and undivided profits of at least
$500,000,000, maturing not more than 90 days from the date of acquisition
thereof; (c) commercial paper rated A-1 or better or P-1 by Standard & Poor's
Ratings Services, a Division of McGraw Hill, Inc., or Moody's Investors Service,
Inc., respectively, maturing not more than 90 days from the date of acquisition
thereof; and (d) Investments in money market funds whose assets consist
primarily of Investments of the types described in the foregoing clauses (a),
(b) and (c) rated as investment grade or better; in each case so long as the
same (x) provide for the payment of principal and interest (and not principal
alone or interest alone) and (y) are not subject to any contingency regarding
the payment of principal or interest.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, limited liability company, joint venture,
trust, unincorporated organization or government (or any agency, instrumentality
or political subdivision thereof).
24
"Plan" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate and that is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean a rate per annum equal to 2%
plus the Base Rate as in effect from time to time plus the Applicable Margin for
Base Rate Loans, provided that, with respect to principal of a Eurodollar Loan
that shall become due (whether at stated maturity, by acceleration, by optional
or mandatory prepayment or otherwise) on a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" shall be, for the period from
and including such due date to but excluding the last day of such Interest
Period, 2% plus the interest rate for such Loan as provided in Section 3.02(b)
hereof and, thereafter, the rate provided for above in this definition.
"Previous Acquisitions" shall mean, collectively, the A-R
Acquisition, the TCI-NE Acquisition and the Harolds Acquisition.
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending rate.
"Principal Office" shall mean the principal office of Chase,
located on the date hereof at 1 Chase Manhattan Plaza, New York, New York 10081.
"Principal Payment Date" shall mean each Quarterly Date
commencing with December 31, 1998 through and including March 31, 2006.
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Purchase Price" shall mean with respect to any Subsequent
Acquisition, an amount equal to the sum of (i) the aggregate consideration,
whether cash, Property or securities (including, without limitation, any
Indebtedness incurred pursuant to Section 8.07(f) hereof and the fair market
value of any CATV Systems being transferred by the Company or any of its
Restricted Subsidiaries in exchange for the CATV Systems being acquired in such
Subsequent Acquisition), paid or delivered by the Company and its Restricted
Subsidiaries in connection with such Subsequent Acquisition plus (ii) the
aggregate amount of liabilities of the acquired business (net of current assets
of the acquired business) that would be reflected on a balance sheet (if such
were to be prepared) of the Company and its Restricted Subsidiaries after giving
effect to such Subsequent Acquisition.
"Qualified Public Offering" shall mean an offer or offerings
of equity interests of FrontierVision LP under one or more effective
registration statements under the Securities
25
Act of 1933, as amended, such that, after giving effect thereto, (i) at least
20% of the aggregate equity interests in FrontierVision LP on a fully diluted
basis (i.e., giving effect to the exercise of any warrants, options and
conversion and other rights) has been sold pursuant to such offerings, and (ii)
such offerings result in aggregate cash proceeds being received by
FrontierVision LP of at least $50,000,000 exclusive of underwriter's discounts
and other expenses.
"Quarterly Dates" shall mean the last Business Day of March,
June, September and December in each year, the first of which shall be the first
such day after the date hereof.
"Quarterly Officer's Report" shall mean a quarterly report of
a Senior Officer with respect to Equivalent Basic Subscribers, homes passed,
revenues per Subscriber and Pay TV Units, substantially in the form of Exhibit B
hereto.
"Register" shall have the meaning assigned to such term in
Section 11.05 hereof.
"Regulations A, D, G, T, U and X" shall mean, respectively,
Regulations A, D, G, T, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be modified and supplemented and in
effect from time to time.
"Regulatory Change" shall mean, with respect to any Lender,
any change after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
lenders including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority (including the NAIC) charged with the interpretation or administration
thereof.
"Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including, without limitation,
the movement of Hazardous Materials through ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata.
"Reorganization" shall mean the formation of a corporation for
the purpose of succeeding to the assets and liabilities of FrontierVision LP in
connection with a public offering or offerings by FrontierVision LP of equity
interests under one or more effective registration statements under the
Securities Act of 1933, as amended.
26
"Reserve Requirement" shall mean, for any Interest Period for
any Eurodollar Loan, the average maximum rate at which reserves (including,
without limitation, any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period under Regulation D by
member banks of the Federal Reserve System in New York City with deposits
exceeding one billion Dollars against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing, the
Reserve Requirement shall include any other reserves required to be maintained
by such member banks by reason of any Regulatory Change with respect to (i) any
category of liabilities that includes deposits by reference to which the
Eurodollar Base Rate is to be determined as provided in the definition of
"Eurodollar Base Rate" in this Section 1.01 or (ii) any category of extensions
of credit or other assets that includes Eurodollar Loans.
"Reserved Commitment Amount" shall have the meaning assigned
to such term in Section 2.01(a)hereof.
"Restricted Payment" shall mean with respect to (i) any
portion of any partnership interest (whether general or limited) in the Company,
(ii) any warrants, options or other rights to acquire any such partnership
interest or (iii) any payments to any Person (such as "phantom stock" payments)
where the amount thereof is calculated with reference to fair market or equity
value of the Company or any Restricted Subsidiary, all partnership distributions
of the Company (in cash, Property or obligations) thereon, or other payments or
distributions on account thereof, or the setting apart of money for a sinking or
other analogous fund therefor, or the purchase, redemption, retirement or other
acquisition thereof. The term "Restricted Payment" shall include, without
limitation, any distributions or payments made by the Company to the Partners
for the purpose of enabling the Partners (or their direct or indirect owners) to
pay federal, state or local income taxes in respect of taxable income of the
Company attributable to the Partners (or such owners).
"Restricted Subsidiary" shall mean any Subsidiary of the
Company other than an Unrestricted Subsidiary.
"Revolving Credit Commitment" shall mean, as to each Revolving
Credit Lender, the obligation of such Lender to make Loans in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
set opposite the name of such Lender on Schedule I hereto under the caption
"Revolving Credit Commitment" or, in the case of a Person that becomes a
Revolving Credit Lender pursuant to an assignment permitted under Section
11.06(b) hereof, as specified in the respective instrument of assignment
pursuant to which such assignment is effected (as the same may be reduced at any
time or from time to time pursuant to Section 2.03 hereof or increased or
reduced from time to time pursuant to assignments permitted under Section
11.06(b) hereof). The aggregate original principal amount of the Revolving
Credit Commitments is $300,000,000.
27
"Revolving Credit Commitment Termination Date" shall mean the
Quarterly Date falling on or nearest to October 31, 2005.
"Revolving Credit Lenders" shall mean (a) on the date hereof,
the Lenders having Revolving Credit Commitments on Schedule I hereto and (b)
thereafter, the Lenders from time to time holding Revolving Credit Loans and
Revolving Credit Commitments after giving effect to any assignments thereof
permitted by Section 11.06(b).
"Revolving Credit Loans" shall mean the loans provided for in
Section 2.01(a) hereof.
"Scheduled Acquisitions" shall mean, collectively, the
TCI-Ohio Acquisition, the CoxCom Acquisition, the Eastern-Kentucky Acquisition
and the NECMA-NE Acquisition.
"Scheduled Acquisition Agreements" shall mean, collectively,
the (i) TCI-Ohio Acquisition Agreement, (ii) the CoxCom Acquisition Agreement,
(iii) the Eastern-Kentucky Acquisition Agreement and (iv) the NECMA-NE
Acquisition Agreement.
"Security Agreement" shall mean the Security Agreement dated
as of November 9, 1995 between the Company, the other Securing Parties from time
to time party thereto and the Administrative Agent (a copy of which is attached
as Exhibit C-1 hereto), as amended by a Amendment No. 1 thereto (a copy of which
is attached as Exhibit C-2 hereto), as the same shall be amended by Amendment
No. 2 thereto in substantially the form attached as Exhibit C-3 hereto and as
the same shall be further modified and supplemented and in effect from time to
time.
"Security Documents" shall mean, collectively, the Security
Agreement, the Partner Pledge Agreement, the Stock Pledge Agreement, the
Subsidiary Guarantee Agreements, the Mortgages and the Other Pledge Agreements,
and all Uniform Commercial Code financing statements required by the Security
Agreement, the Partner Pledge Agreement, the Stock Pledge Agreement, the
Subsidiary Guarantee Agreements, the Mortgages and the Other Pledge Agreements
to be filed with respect to the security interests in personal Property and
fixtures created pursuant to the Security Agreement, the Partner Pledge
Agreement, the Stock Pledge Agreement, the Subsidiary Guarantee Agreements, the
Mortgages and the Other Pledge Agreements.
"Sellers" shall mean, collectively, (a) with respect to the
TCI-Ohio Acquisition, TCI-Ohio, (b) with respect to the CoxCom Acquisition,
CoxCom, (c) with respect to the Eastern-Kentucky Acquisition, Eastern-Kentucky,
(d) with respect to the NECMA-NE Acquisition, shareholders of NECMA-NE and (e)
with respect to any
28
Subsequent Acquisition, the owner of, the stock (or other ownership interests)
of the entity that owns, or the assets of, the CATV System to be acquired by the
Company or any of its Restricted Subsidiaries pursuant to such Subsequent
Acquisition, as the case may be.
"Senior Debt Ratio" shall mean, as at any date (but subject in
any event to the provisions of Section 8.10(e) hereof), the ratio of:
(a) the sum of the aggregate amount of all Indebtedness of the
Company and its Restricted Subsidiaries (excluding all Subordinated
Indebtedness and performance bonds contemplated by Section 8.07(f)
hereof but including all letters of credit contemplated by said
Section) as at such date to
(b) the product of EBITDA for the fiscal quarter ending on, or
most recently ended prior to such date times four.
"Senior Discount Debt" shall mean the Indebtedness of
FrontierVision Holdings and FrontierVision Holdings Capital Corporation in
respect of the notes issued pursuant to Senior Discount Debt Indenture.
"Senior Discount Debt Documents" shall mean the Senior
Discount Debt Indenture, the securities or other instruments evidencing the
Senior Discount Debt and all other documents, instruments and agreements
executed and delivered in connection with the original issuance of the Senior
Discount Debt, in each case, as the same shall, subject to Section 8.18 hereof,
be modified and supplemented and in effect from time to time.
"Senior Discount Debt Indenture" shall mean the Indenture
dated as of September 19, 1997 entered into by FrontierVision Holdings, L.P. and
FrontierVision Holdings Capital Corporation, as Issuers, and Colorado National
Bank, as trustee, as the same shall, subject to Section 8.18 hereof, be modified
and supplemented and in effect from time to time.
"Senior Officer" shall mean (i) the president, chief financial
officer or other executive officer of FrontierVision Inc., acting for and on
behalf of the Company (directly or indirectly through one or more general
partnerships) or (ii) following the Reorganization, the president, chief
financial officer or other executive officer of FrontierVision LP.
"Senior Subordinated Debt Documents" shall mean the Senior
Subordinated Debt Indenture, the securities or other instruments evidencing the
Subordinated Indebtedness and all other documents, instruments and agreements
executed and delivered in connection with the original issuance of the
Subordinated Indebtedness, in each case, as the same shall,
29
subject to Section 8.18 hereof, be modified and supplemented and in effect from
time to time.
"Senior Subordinated Debt Indenture" shall mean the Indenture
dated as of October 7, 1996 among the Company and FrontierVision Capital, as
Issuers, and Colorado National Bank, as Trustee, as the same shall, subject to
Section 8.18 hereof, be modified and supplemented and in effect from time to
time.
"Series" shall have the meaning assigned to such term in
Section 2.01(d) hereof.
"Specified Default" shall mean, collectively, any Event of
Default under Section 9(a), 9(b), 9(c), 9(e)(i), 9(f), 9(g), 9(h), 9(i), 9(m),
9(n) or 9(o) hereof.
"Stock Pledge Agreement" shall mean the Stock Pledge Agreement
dated as of November 9, 1995 between the Stock Pledgors referred to therein and
the Administrative Agent, (a copy of which is attached as Exhibit E-1 hereto),
as amended by a Amendment No. 1 thereto (a copy of which is attached as Exhibit
E-2 hereto), as further amended by a Amendment No. 2 thereto (a copy of which is
attached as Exhibit E-3 hereto), as the same shall be amended by Amendment No. 3
thereto in substantially the form attached as Exhibit E-4 hereto and as the same
shall be further modified and supplemented and in effect from time to time.
"Subordinated Indebtedness" shall mean the Indebtedness of the
Company and FrontierVision Capital in respect of the senior subordinated notes
of the Company and FrontierVision Capital due 2006 issued pursuant to Senior
Subordinated Debt Indenture.
"Subscriber" shall mean a Person who subscribes to one or more
of the cable television services of the Company and its Restricted Subsidiaries
and includes both Equivalent Basic Subscribers and Persons who subscribe to Pay
TV Units, but excluding each such Person whose account is more than 90 days past
due.
"Subsequent Acquisition" shall mean any acquisition permitted
under Section 8.05(b)(iv) hereof (including, without limitation, the Scheduled
Acquisitions).
"Subsequent Acquisition Agreement" shall mean each asset
purchase agreement, stock purchase agreement or other acquisition agreement
pursuant to which a Subsequent Acquisition shall be consummated, as the same
shall, subject to Section 8.18 hereof, be modified and supplemented and in
effect from time to time.
30
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person.
"Subsidiary Guarantee Agreement" shall mean a Subsidiary
Guarantee Agreement substantially in the form of Exhibit F hereto by a
Restricted Subsidiary of the Company in favor of the Administrative Agent, as
the same shall be modified and supplemented and in effect from time to time.
"Subsidiary Guarantor" shall mean any Restricted Subsidiary of
the Company that executes and delivers the Subsidiary Guarantee Agreement.
"Tax Payment Amount" shall mean, for any period, an amount
equal to the aggregate amount of Federal, state and local income taxes the
Company and its Subsidiaries would have paid in respect of such period in the
event they were corporations (other than an "S corporation" within the meaning
of Section 1361 of the Code) for such period and all prior periods filing
consolidated income tax returns with the Company as the "common parent" (within
the meaning of Section 1504 of the Code).
"TCI-NE Acquisition" shall mean the acquisition by the Company
of CATV Systems in New Hampshire and Vermont from TCI Cablevision of Vermont,
Inc. and Westmarc Development Joint Venture (collectively, "TCI-NE") pursuant to
the Asset Purchase Agreement dated as of May 12, 1997 between TCI-NE and the
Company, which acquisition was consummated on December 2, 1997.
"TCI-Ohio" shall mean, collectively, TCI Cablevision of Ohio,
Inc. and Ohio Cablevision Network, Inc.
"TCI-Ohio Acquisition" shall mean the proposed acquisition by
the Company of CATV Systems in Ohio from TCI-Ohio pursuant to the TCI-Ohio
Acquisition Agreement.
"TCI-Ohio Acquisition Agreement" shall mean the Asset Purchase
Agreement dated on or about December 19, 1997, in substantially the form of the
draft thereof dated December 18, 1997, between TCI-Ohio and the Company, as the
same shall, subject to Section 8.18 hereof, be modified and supplemented and in
effect from time to time.
31
"Term Loan Commitments" shall mean, collectively, the Facility
A Term Loan Commitments and the Facility B Term Loan Commitments.
"Term Loans" shall mean, collectively, the Facility A Term
Loans and the Facility B Term Loans.
"Type" shall have the meaning assigned to such term in Section
1.03 hereof.
"Unrestricted Subsidiary" shall mean any Subsidiary of the
Company that (a) shall have been designated as an "Unrestricted Subsidiary" in
accordance with the provisions of Section 1.04 and (b) any Subsidiary of an
Unrestricted Subsidiary.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect from time to time in the State of New York.
"U.S. Person" shall mean a citizen or resident of the United
States of America, a corporation, partnership or other entity created or
organized in or under any laws of the United States of America or any State
thereof, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income.
"U.S. Taxes" shall mean any present or future tax, assessment
or other charge or levy imposed by or on behalf of the United States of America
or any taxing authority thereof.
"UVC" shall mean United Video Cablevision, Inc.
"UVC Notes" shall mean, collectively, (a) the promissory note
of the Company in favor of UVC executed and delivered by the Company in an
aggregate principal amount of $7,200,000 and (b) any PIK Notes (under and as
defined in such promissory note) executed and delivered thereunder as provided
therein, as the same shall be modified and supplemented and in effect from time
to time.
"Wholly Owned Subsidiary" shall mean, with respect to any
Person, any corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) are directly or indirectly owned or
controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.
32
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Administrative Agent and the Lenders hereunder shall (unless otherwise
disclosed to the Lenders in writing at the time of delivery thereof in the
manner described in subsection (b) below) be prepared, in accordance with
generally accepted accounting principles applied on a basis consistent with
those used in the preparation of the latest financial statements furnished to
the Administrative Agent and the Lenders hereunder (which, prior to the delivery
of the first financial statements under Section 8.01 hereof, shall mean the
financial statements referred to in Section 7.02(i) hereof). All calculations
made for the purposes of determining compliance with this Agreement shall
(except as otherwise expressly provided herein) be made by application of
generally accepted accounting principles applied on a basis consistent with
those used in the preparation of the latest annual or quarterly financial
statements furnished to the Lenders pursuant to Section 8.01 hereof (or, prior
to the delivery of the first financial statements under Section 8.01 hereof,
used in the preparation of the financial statements referred to in Section
7.02(i) hereof) unless:
(i) the Company shall have objected to determining such
compliance on such basis at the time of delivery of such financial
statements or
(ii) the Majority Lenders shall so object in writing within 30
days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 8.01 hereof,
shall mean the financial statements referred to in Section 7.02(i) hereof).
(b) The Company shall deliver to the Administrative Agent and
the Agents at the same time as the delivery of any annual or quarterly financial
statement under Section 8.01 hereof (i) a description in reasonable detail of
any material variation between the application of accounting principles employed
in the preparation of such statement and the application of accounting
principles employed in the preparation of the next preceding annual or quarterly
financial statements as to which no objection has been made in accordance with
the last sentence of subsection (a) above and (ii) reasonable estimates of the
difference between such statements arising as a consequence thereof.
33
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 8 hereof, the Company will
not change the last day of its fiscal year from December 31 of each year, or the
last days of the first three fiscal quarters in each of its fiscal years from
March 31, June 30 and September 30 of each year, respectively.
(d) Whenever making determinations under this Agreement of the
amount of income taxes payable during any period by the Company and its
Subsidiaries, the amount of such taxes shall be deemed to include the Tax
Payment Amount for such period.
1.03 Types of Loans. Loans hereunder are distinguished by
"Class" and by "Type". The "Class" of a Loan refers to whether such Loan is a
Revolving Credit Loan, a Facility A Term Loan, a Facility B Term Loan or an
Incremental Facility Loan of a particular Series, each of which constitutes a
Class. The "Type" of a Loan refers to whether such Loan is a Base Rate Loan or a
Eurodollar Loan, each of which constitutes a Type. Loans may be identified by
both Class and Type. Incremental Facility Loans and Incremental Facility
Commitments shall be classified by Series, each of which shall be considered a
separate Class.
1.04 Subsidiaries; Designation of Unrestricted Subsidiaries.
(a) The Company may at any time designate any of its
Subsidiaries (including any newly acquired or newly formed Subsidiary) be an
Unrestricted Subsidiary for purposes of this Agreement, by delivering to the
Administrative Agent a certificate of a Senior Officer (and the Administrative
Agent shall promptly forward a copy of such certificate to each Lender)
attaching a copy of a resolution of the Company setting forth such designation
and stating that the conditions set forth in this Section 1.04 have been
satisfied with respect to such designation, provided that no such designation
shall be effective unless (i) at the time of such designation and after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing, (ii) at the time of such designation the Company would be permitted
to make an Investment (assuming the effectiveness of such designation) pursuant
to Section 8.08(k) hereof, (iii) at the time of such designation and after
giving effect thereto, no Subsidiary of an Unrestricted Subsidiary is a
Restricted Subsidiary, (iv) at the time of such designation and after giving
effect thereto, any Subsidiary that is a Restricted Subsidiary under the Senior
Subordinated Debt Indenture shall also be a Restricted Subsidiary under this
Agreement and (v) no Event of Default would have existed with respect to Section
8.10 hereof as at the previous Quarterly Date had such Subsidiary been an
Unrestricted Subsidiary at such time.
Neither the Company nor any Restricted Subsidiary shall at any
time (1) provide credit support for, subject any of its property or assets
(other than the equity interests of any Unrestricted Subsidiary) to the
satisfaction of, or guarantee any Indebtedness
34
of any Unrestricted Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness), (2) be directly or indirectly liable
for any Indebtedness of any Unrestricted Subsidiary or (3) be directly or
indirectly liable for any Indebtedness which provides that the holder thereof
may (upon notice, lapse of time or both) declare a default thereon or cause the
payment thereof to be accelerated or payable prior to its final scheduled
maturity upon the occurrence of a default with respect to any Indebtedness of
any Unrestricted Subsidiary, except, in the case of clause (1) or (2), to the
extent otherwise permitted under the terms of this Agreement.
(b) The Company may revoke any designation of a Subsidiary as
an Unrestricted Subsidiary by delivering to the Administrative Agent a
certificate of a Senior Officer (and the Administrative Agent shall promptly
forward a copy of such certificate to each Lender) attaching a copy of a
resolution of the Company setting forth such revocation and stating that the
conditions set forth in this Section 1.04 have been satisfied with respect to
such revocation, provided that no such revocation shall be effective unless (i)
at the time of such revocation and after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing and (ii) all Liens and
Indebtedness of such Unrestricted Subsidiary outstanding immediately following
such revocation would, if incurred at such time, have been permitted to be
incurred under this Agreement.
(c) The parties hereto hereby agree that FrontierVision Access
Partners L.L.C., a Delaware limited liability company, is hereby designated an
Unrestricted Subsidiary; the Company hereby represents and warrants to the
Administrative Agent and the Lenders that the requirements of this Section 1.04
with respect to such designation have been satisfied.
Section 2. Commitments, Loans and Prepayments.
2.01 Loans.
(a) Revolving Credit Loans. Each Revolving Credit Lender
severally agrees, on the terms and conditions of this Agreement, to make
revolving credit loans to the Company in Dollars during the period from and
including the Effective Date to but not including the Revolving Credit
Commitment Termination Date in an aggregate principal amount (as to all
Revolving Credit Loans held by such Lender) at any one time outstanding up to
but not exceeding the amount of the Revolving Credit Commitment of such Lender
as in effect from time to time. Subject to the terms and conditions of this
Agreement, during such period the Company may borrow, repay and reborrow the
amount of the Revolving Credit Commitments by means of Base Rate Loans and
Eurodollar Loans and may Convert Loans of one Type into Loans of another Type
(as provided in Section 2.08 hereof) or
35
Continue Eurodollar Loans from one Interest Period to the next Interest Period
(as provided in Section 2.08 hereof). Anything herein to the contrary
notwithstanding, no Revolving Credit Loans may be made hereunder on the
Effective Date unless the Company shall be simultaneously borrowing Facility A
and Facility B Term Loans hereunder in an aggregate amount equal to the original
Facility A and Facility B Term Loan Commitments hereunder.
Proceeds of Revolving Credit Loans shall be available for any
use permitted under Section 8.16 hereof, provided that, in the event that as
contemplated by Section 2.09(f) hereof, the Company shall prepay Revolving
Credit Loans from the proceeds of a Disposition hereunder, then an amount of
Revolving Credit Commitments equal to the amount of such prepayment (herein the
"Reserved Commitment Amount") shall be reserved and shall not be available for
borrowings hereunder except and to the extent that the proceeds of such
borrowings are to be applied to make Subsequent Acquisitions permitted under
Section 8.05(b) hereof or to make prepayments of Loans under Section
2.09(d)(y)(B) hereof. The Company agrees, upon the occasion of any borrowing of
Revolving Credit Loans hereunder that is to constitute a utilization of any
Reserved Commitment Amount, to advise the Administrative Agent in writing of
such fact at the time of such borrowing, identifying the amount of such
borrowing that is to constitute such utilization, the Subsequent Acquisition in
respect of which the proceeds of such borrowing are to be applied and the
reduced Reserved Commitment Amount to be in effect after giving effect to such
borrowing.
(b) Facility A Term Loans. Each Facility A Term Loan Lender
severally agrees, on the terms and conditions of this Agreement, to make term
loans to the Company in Dollars during the period from and including the
Effective Date to but not including the Facility A Term Loan Commitment
Termination Date in an aggregate principal amount up to but not exceeding the
then unused amount of the Facility A Term Loan Commitment of such Lender.
Subject to the terms and conditions of this Agreement (including, without
limitation, paragraph (e) below), the Company may Convert Facility A Term Loans
of one Type into Facility A Term Loans of another Type (as provided in Section
2.08 hereof) or Continue Eurodollar Loans from one Interest Period to the next
Interest Period (as provided in Section 2.08 hereof). Anything herein to the
contrary notwithstanding, no Facility A Term Loans shall be made hereunder
unless prior thereto (or concurrently therewith) Facility B Term Loans in an
aggregate amount equal to the full original amount of the Facility B Term Loan
Commitments shall have been made under Section 2.01(c) hereof. Facility A Term
Loans borrowed and repaid prior to the Facility A Term Loan Commitment
Termination Date may not be reborrowed.
Proceeds of Facility A Term Loans hereunder shall be available
for any use permitted under Section 8.16 hereof.
36
(c) Facility B Term Loans. Each Facility B Term Loan Lender
severally agrees, on the terms and conditions of this Agreement, to make term
loans to the Company in Dollars during the period from and including the
Effective Date to but not including the Facility B Term Loan Commitment
Termination Date in an aggregate principal amount up to but not exceeding the
then unused amount of the Facility B Term Loan Commitment of such Lender.
Subject to the terms and conditions of this Agreement (including, without
limitation, paragraph (e) below), the Company may Convert Facility B Term Loans
of one Type into Facility B Term Loans of another Type (as provided in Section
2.08 hereof) or Continue Eurodollar Loans from one Interest Period to the next
Interest Period (as provided in Section 2.08 hereof). Facility B Term Loans
borrowed and repaid prior to the Facility B Term Loan Commitment Termination
Date may not be reborrowed.
Proceeds of Facility B Term Loans hereunder shall be available
for any use permitted under Section 8.16 hereof.
(d) Incremental Facility Loans. In addition to borrowings of
Term Loans and Revolving Credit Loans, at any time during the Incremental
Facility Availability Period the Company may from time to time request the
Lenders offer to enter into commitments to make additional term loans to the
Company hereunder, which commitment of any Lender shall not be less than
$5,000,000 and not greater than $200,000,000. In the event that one or more of
the Lenders offer, in their sole discretion, to enter into such commitments, and
such Lenders and the Company agree as to the amount of such commitments that
shall be allocated to the respective Lenders making such offers and the fees (if
any) to be payable by the Company in connection therewith, such Lenders shall
become obligated to make Incremental Facility Loans under this Agreement in an
amount equal to the amount of their respective Incremental Facility Commitments.
The Incremental Facility Loans to be made pursuant to any such agreement between
the Company and one or more Lenders in response to any such request by the
Company shall be deemed to be a separate "Series" of Incremental Facility Loans
for all purposes of this Agreement. Anything herein to the contrary
notwithstanding, (i) the minimum aggregate principal amount of Incremental
Facility Commitments entered into pursuant to any such request (and,
accordingly, the minimum aggregate principal amount of any Series of Incremental
Facility Loans) shall be $50,000,000 and (ii) the aggregate principal amount of
all Incremental Facility Commitments and Incremental Facility Loans shall not
exceed $200,000,000. Incremental Facility Term Loans borrowed and repaid prior
to but not including the Quarterly Date falling on or nearest to December 31,
1999 may not be reborrowed.
37
(e) Certain Limitations on Eurodollar Loans. No more than
fifteen separate Interest Periods in respect of Eurodollar Loans of all Classes
may be outstanding at any one time.
(f) Treatment of Loans Outstanding under Existing Credit
Agreement. In the event that any "Revolving Credit Loans", or "Facility A" or
"Facility B Term Loans" under the Existing Credit Agreement shall remain
outstanding on the Effective Date, then such loans shall be continued as
Revolving Credit Loans, or Facility A or Facility B Term Loans hereunder, as
applicable, and the Lenders hereunder shall, on the Effective Date, take such
actions, and make such adjustments among themselves, as shall be necessary so
that such loans are held hereunder ratably in accordance with their respective
Revolving Credit Commitments, and Facility A and Facility B Term Loan
Commitments, as applicable. On the Effective Date, the Company shall cause to be
paid to each Lender party to the Existing Credit Agreement, all amounts that
would be owing to such Lender under Section 5.05 of the Existing Credit
Agreement as if the "Loans" of such Lender under the Existing Credit Agreement
were being repaid on the Effective Date, whether or not any such loans are
actually repaid on the Effective Date.
2.02 Borrowings. The Company shall give the Administrative
Agent notice of each borrowing hereunder as provided in Section 4.05 hereof. Not
later than 1:00 p.m. New York time on the date specified for each borrowing
hereunder, each Lender shall make available the amount of the Loan or Loans to
be made by it on such date to the Administrative Agent, at an account maintained
by the Administrative Agent with Chase at the Principal Office and notified to
the Company, in immediately available funds, for account of the Company (or, at
such other account as the Administrative Agent may designate). The amount so
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Company by depositing the same, in
immediately available funds, in an account of the Company designated by the
Company and maintained with Chase at the Principal Office (or, in such other
manner as the Company may reasonably specify to the Administrative Agent).
2.03 Changes of Commitments.
(a) The aggregate amount of the Revolving Credit Commitments
shall be automatically reduced to zero on the Revolving Credit Commitment
Termination Date.
(b) The Company shall have the right at any time or from time
to time (i) so long as no Revolving Credit Loans are outstanding to terminate
the Revolving Credit Commitments, (ii) so long as no Incremental Facility Loans
of a Series are outstanding to terminate the Incremental Facility Commitments of
such Series or (iii) to reduce the aggregate unused amount of the Revolving
Credit Commitments or Incremental Facility
38
Commitments of any Series, as applicable; provided that (x) the Company shall
give notice of each such termination or reduction as provided in Section 4.05
hereof and (y) each partial reduction shall be in an aggregate amount at least
equal to $5,000,000 (or a larger multiple of $1,000,000).
(c) Any portion of the Facility A and Facility B Term Loan
Commitments not used on the Facility A and Facility B Term Loan Commitment
Termination Date shall be automatically terminated on the Facility A and
Facility B Term Loan Commitment Termination Date. Any portion of the Incremental
Facility Commitments of any Series not used during the Incremental Facility
Availability Period shall be automatically terminated on the last day of the
Incremental Facility Availability Period.
(d) The Commitments once terminated or reduced may not be
reinstated.
2.04 Commitment Fee. The Company shall pay to the
Administrative Agent for account of each Lender a commitment fee on the daily
average unused amount of the respective Commitments of such Lender (including,
without limitation, the Reserved Commitment Amount), for the period from and
including the date hereof to but not including the date such Commitment is
terminated, at a rate per annum equal to the Applicable Margin. Accrued
commitment fees shall be payable on the Effective Date, on each Quarterly Date
and on the date the relevant Commitments are terminated.
Notwithstanding anything to the contrary contained herein or
in the Existing Credit Agreement, the accrued commitment fee payable under
Section 2.04 of the Existing Credit Agreement shall be payable on the Effective
Date.
2.05 Lending Offices. The Loans of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Loans of such Type.
2.06 Several Obligations; Remedies Independent. The failure of
any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of its obligation to make its Loan on such
date, but neither any Lender nor the Administrative Agent shall be responsible
for the failure of any other Lender to make a Loan to be made by such other
Lender, and (except as otherwise provided in Section 4.06 hereof) no Lender
shall have any obligation to the Administrative Agent or any other Lender for
the failure by such Lender to make any Loan required to be made by such Lender.
The amounts payable by the Company at any time hereunder to each Lender shall be
a separate and independent debt and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement, and it shall not be necessary
for any other Lender or the Administrative Agent to consent to, or be joined as
an additional party in, any proceedings for such purposes.
39
2.07 Loan Accounts; Promissory Notes.
(a) Maintenance of Loan Accounts by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Company to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(b) Maintenance of Loan Accounts by Administrative Agent. The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Company to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof.
(c) Effect of Entries. The entries made in the accounts
maintained pursuant to paragraph (a) or (b) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the Company to repay the Loans in accordance with the terms of this
Agreement.
(d) Promissory Notes. Any Lender may request that Loans of any
Class made by it be evidenced by a promissory note. In such event, the Company
shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and
its registered assigns) and in a form approved by the Administrative Agent (and
which does not alter the rights or obligations of the parties to this
Agreement). Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 11.06
hereof) be represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
2.08 Optional Prepayments and Conversions or Continuations of
Loans. Subject to Section 4.04 hereof, the Company shall have the right to
prepay Loans, to Convert Loans of one Type into Loans of another Type or to
Continue Eurodollar Loans from one Interest Period to the next Interest Period,
at any time or from time to time, provided that:
40
(a) the Company shall give the Administrative Agent notice of
each such prepayment, Conversion or Continuation as provided in Section
4.05 hereof (and, upon the date specified in any such notice of
prepayment, the amount to be prepaid shall become due and payable
hereunder);
(b) except to the extent necessary to comply with the
requirements of clause (c) below, Eurodollar Loans may be prepaid or
Converted only on the last day of an Interest Period for such Loans;
(c) any Conversion or Continuation of Eurodollar Loans shall
be subject to the provisions of Section 2.01(e) hereof;
(d) prepayments of any Term Loan shall be effected in such
manner so that the Term Loans of both Classes (and, to the extent that
Incremental Loans are outstanding, the Incremental Loans of all Series)
are concurrently prepaid ratably in accordance with the respective
outstanding principal amounts thereof and the aggregate principal
amount of all such concurrent prepayments is at least equal to the
amounts specified in Section 4.04 hereof; and
(e) prepayments of Term Loans and of Incremental Facility
Loans shall be applied to the installments of principal thereof ratably
in accordance with the respective amounts of such installments.
Notwithstanding the foregoing, and without limiting the rights
and remedies of the Lenders under Section 9 hereof, in the event that any Event
of Default shall have occurred and be continuing, the Administrative Agent may
(and at the request of the Majority Lenders shall) suspend the right of the
Company to Convert any Loan into a Eurodollar Loan, or to Continue any
Eurodollar Loan, in which event all Loans shall be Converted (on the last day(s)
of the respective Interest Periods therefor) into Base Rate Loans.
2.09 Mandatory Prepayments and Reductions of Commitments.
(a) Casualty Events. Upon the date 365 days following the
receipt by the Company of the proceeds of insurance, condemnation award or other
compensation in respect of any Casualty Event affecting any Property of the
Company or any of its Restricted Subsidiaries (or upon such earlier date as the
Company or such Restricted Subsidiary, as the case may be, shall have determined
not to repair or replace the Property affected by such Casualty Event), the
Company shall prepay the Loans in an aggregate amount, if any, equal to 100% of
the Net Available Proceeds of such Casualty Event not theretofore applied (or
committed to be applied pursuant to executed construction contracts or equipment
orders) to
41
the repair or replacement of such Property, such prepayment to be effected in
each case in the manner and to the extent specified in paragraph (f) of this
Section 2.09.
Nothing in this paragraph (a) shall be deemed to limit any
obligation of the Company and its Restricted Subsidiaries pursuant to the
Security Agreement to remit to the Collateral Account the proceeds of insurance,
condemnation award or other compensation received in respect of any Casualty
Event, and the Administrative Agent shall release such proceeds to the Company
in the manner and to the extent provided in Section 4.01(d) of the Security
Agreement.
(b) [INTENTIONALLY OMITTED]
(c) Excess Cash Flow. Not later than the date 90 days after
the end of each fiscal year of the Company, commencing with Excess Cash Flow for
the fiscal year ending December 31, 2001, the Company shall prepay the Loans in
an aggregate amount equal to the excess of (A) 50% of Excess Cash Flow for such
fiscal year over (B) the aggregate amount of voluntary prepayments of Term Loans
and Incremental Facility Loans made during such fiscal year pursuant to Section
2.08 hereof (other than that portion, if any, of such prepayments applied to
installments of the Term Loans and Incremental Facility Loans falling due in
such fiscal year), such prepayment to be effected in each case in the manner and
to the extent specified in paragraph (f) of this Section 2.09. Notwithstanding
the foregoing, no prepayment shall be required under this paragraph (c) if, at
the last day of the last two fiscal quarters of any fiscal year the Debt Ratio
shall have been less than 5.00 to 1.
(d) Sale of Assets. Without limiting the obligation of the
Company to obtain the consent of the Majority Lenders pursuant to Section 8.05
hereof to any Disposition not otherwise permitted hereunder, the Company agrees,
two Business Days prior to the occurrence of any Disposition in which the fair
market value of the Property that is the subject of such Disposition is greater
than or equal to $10,000,000, to deliver to the Administrative Agent and the
other Agents a statement, certified by a Senior Officer, in reasonable detail of
the estimated amount of the Net Available Proceeds of such Disposition, in which
event the Company will prepay the Loans as follows:
(i) on the date of such Disposition, in an aggregate amount
equal to 100% of the actual Net Available Proceeds of such Disposition
received by the Company and its Restricted Subsidiaries on the date of
such Disposition; and
(ii) thereafter, quarterly, on the date of the delivery by the
Company to the Administrative Agent pursuant to Section 8.01 hereof of
the financial statements for each quarterly fiscal period or (if
earlier) the date 45 days after the end of such quarterly fiscal
period, to the extent the Company or any of its Restricted Subsidiaries
42
shall receive Net Available Proceeds during such quarterly fiscal
period in cash under deferred payment arrangements or Investments
entered into or received in connection with any Disposition, an amount
equal to (A) 100% of the aggregate amount of such Net Available
Proceeds minus (B) any transaction expenses associated with such
Disposition and not previously deducted in the determination of Net
Available Proceeds plus (or minus, as the case may be) (C) any other
adjustment received or paid by the Company or such Restricted
Subsidiary pursuant to the respective agreements giving rise to such
Disposition and not previously taken into account in the determination
of the Net Available Proceeds of such Disposition, provided that, if
prior to the date upon which the Company would otherwise be required to
make a prepayment under this clause (ii) with respect to any quarterly
fiscal period the aggregate amount of such Net Available Proceeds
received in cash shall aggregate an amount that will require a
prepayment of $10,000,000 or more under this clause (ii) with respect
to such quarterly fiscal period, then the Company shall immediately
make a prepayment under this clause (ii) in an amount equal to such
required prepayment.
Prepayments of Loans shall be effected in each case in the manner and to the
extent specified in paragraph (f) of this Section 2.09.
Notwithstanding the foregoing, the Company shall not be
required to make a prepayment pursuant to this paragraph (d) with respect to the
Net Available Proceeds from any Disposition (including, without limitation, the
Dispositions permitted under Section 8.05(c)(iv) hereof) in the event that the
Company advises the Administrative Agent at the time the Net Available Proceeds
from such Disposition are received that it intends to reinvest such Net
Available Proceeds into replacement assets pursuant to a transaction permitted
under Section 8.05(b) hereof, so long as:
(x) such Net Available Proceeds are either (i) held by the
Administrative Agent in the Collateral Account pending such
reinvestment, in which event the Administrative Agent need not release
such Net Available Proceeds except upon presentation of evidence
satisfactory to it that such Net Available Proceeds are to be so
reinvested in compliance with the provisions of this Agreement or (ii)
applied by the Company to the prepayment of Revolving Credit Loans
hereunder (in which event the Company agrees to advise the
Administrative Agent in writing at the time of such prepayment of
Revolving Credit Loans that such prepayment is being made from the
proceeds of a Disposition and that, as contemplated by Section 2.01(a)
hereof, a portion of the Revolving Credit Commitments hereunder equal
to the amount of such prepayment gives rise to a Reserved Commitment
Amount that shall be available hereunder only for purposes of making
Subsequent Acquisitions under Section 8.05(b) hereof),
43
(y) the Net Available Proceeds from any Disposition are in
fact so reinvested within twelve months of such Disposition (it being
understood that, in the event Net Available Proceeds from more than one
Disposition are paid into the Collateral Account or applied to the
prepayment of Revolving Credit Loans as provided in clause (x) above,
such Net Available Proceeds shall be deemed to be released (or, as the
case may be, Revolving Credit Loans utilizing the Reserved Commitment
Amount shall be deemed to be made) in the same order in which such
Dispositions occurred and, accordingly, (A) any such Net Available
Proceeds so held for more than twelve months shall be forthwith applied
to the prepayment of Loans and reductions of Commitments as provided
above and (B) any Reserved Commitment Amount that remains so unutilized
for more than twelve months shall, subject to the satisfaction of the
conditions precedent to such borrowing in Section 6.03 hereof, be
utilized through the borrowing by the Company of Revolving Credit Loans
the proceeds of which shall be applied to the prepayment of Loans and
reductions of Commitments as provided in paragraph (f) of this Section
2.09) and
(z) the aggregate amount of Net Available Proceeds (together
with investment earnings thereon) so held at any time by the
Administrative Agent pending reinvestment as contemplated by this
sentence, together with the aggregate amount of the Reserved Commitment
Amount, shall not at any time exceed $150,000,000 or such greater
amount as the Majority Lenders may otherwise agree.
As contemplated by Section 4.01 of the Security Agreement, nothing in this
paragraph (d) shall be deemed to obligate the Administrative Agent to release
any of such proceeds from the Collateral Account to the Company for purposes of
reinvestment as aforesaid upon the occurrence and during the continuance of any
Event of Default.
(e) Change of Control. If any Change of Control shall occur,
then, concurrently with the occurrence of the event giving rise to such Change
of Control, the Company shall prepay the Loans in full and the Commitments shall
be automatically reduced to zero.
(f) Application. Upon the occurrence of any of the events
described in the above paragraphs of this Section 2.09, the amount of the
required prepayment shall be applied to the prepayment of the Facility A Term
Loans, the Facility B Term Loans and the Incremental Facility Loans of each
Series ratably in accordance with the respective then-outstanding aggregate
amounts of such Commitments and Loans and after the prepayment in full of the
outstanding Facility A Term Loans, Facility B Term Loans and the Incremental
Facility Term Loans, to the reduction of the Revolving Credit Commitments (and
to the simultaneous prepayment of the Revolving Credit Loans in an amount equal
to such required reduction of Revolving Credit Commitments). Each such
prepayment of Term
44
Loans shall be applied to the Facility A Term Loans, the Facility B Term Loans
and the Incremental Facility Loans of each Series ratably in accordance with the
respective aggregate outstanding principal amounts thereof, and to the
installments of principal thereof ratably in accordance with the respective
amounts of such installments.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) The Company hereby promises to pay to the Administrative
Agent for account of each Revolving Credit Lender the entire outstanding
principal amount of such Lender's Revolving Credit Loans, and each Revolving
Credit Loan shall mature, on the Revolving Credit Commitment Termination Date.
(b) The Company hereby promises to pay to the Administrative
Agent for account of the Facility A Term Loan Lenders the principal of the
Facility A Term Loans in twenty-eight installments payable on the Principal
Payment Dates set forth below as follows, each such installment to be in an
amount equal to the percentage of the aggregate principal amount of the Facility
A Term Loans outstanding on the Facility A Term Loan Commitment Termination Date
set forth opposite such Principal Payment Date:
Percentage of
Aggregate Principal
Principal Payment Date Amount Outstanding
December 31, 1998 0.75%
March 31, 1999 ... 0.75%
June 30, 1999 .... 0.75%
September 30, 1999 0.75%
December 31, 1999 2.00%
March 31, 2000 ... 2.00%
June 30, 2000 .... 2.00%
September 30, 2000 2.00%
December 31, 2000 3.00%
March 31, 2001 ... 3.00%
June 30, 2001 .... 3.00%
September 30, 2001 3.00%
45
December 31, 2001 4.00%
March 31, 2002 ... 4.00%
June 30, 2002 .... 4.00%
September 30, 2002 4.00%
December 31, 2002 5.00%
March 31, 2003 ... 5.00%
June 30, 2003 .... 5.00%
September 30, 2003 5.00%
December 31, 2003 6.50%
March 31, 2004 ... 6.50%
June 30, 2004 .... 6.50%
September 30, 2004 6.50%
December 31, 2004 3.75%
March 31, 2005 ... 3.75%
June 30, 2005 .... 3.75%
September 30, 2005 ... 3.75%
(c) The Company hereby promises to pay to the Administrative
Agent for account of the Facility B Term Loan Lenders the principal of the
Facility B Term Loans in twenty-eight installments payable on the Principal
Payment Dates set forth below as follows, each such installment to be in an
amount equal to the percentage of the aggregate principal amount of the Facility
B Term Loans outstanding on the Facility B Term Loan Commitment Termination Date
set forth opposite such Principal Payment Date:
Percentage of
Aggregate Principal
Principal Payment Date Amount Outstanding
December 31, 1999 0.2075%
March 31, 2000 ... 0.2075%
June 30, 2000 .... 0.2075%
September 30, 2000 0.2075%
December 31, 2000 0.2075%
March 31, 2001 ... 0.2075%
June 30, 2001 .... 0.2075%
September 30, 2001 0.2075%
46
December 31, 2001 0.2075%
March 31, 2002 ... 0.2075%
June 30, 2002 .... 0.2075%
September 30, 2002 0.2075%
December 31, 2002 0.2075%
March 31, 2003 ... 0.2075%
June 30, 2003 .... 0.2075%
September 30, 2003 0.2075%
December 31, 2003 0.2075%
March 31, 2004 ... 0.2075%
June 30, 2004 .... 0.2075%
September 30, 2004 0.2075%
December 31, 2004 0.2125%
March 31, 2005 ... 0.2125%
June 30, 2005 .... 0.2125%
September 30, 2005 0.2125%
December 31, 2005 45.0000%
March 31, 2006 ... 50.0000%
(d) The Company hereby promises to pay to the Administrative
Agent for account of the Incremental Facility Lenders the principal of the
Incremental Facility Loans in twenty-six installments payable on the Principal
Payment Dates set forth below as follows, each such installment to be in an
amount equal to the percentage of the aggregate principal amount of the
Incremental Facility Term Loans outstanding on the Quarterly Date falling on or
nearest to December 31, 1999 set forth opposite such Principal Payment Date (and
each such payment to be applied ratably to each Series of Incremental Facility
Loans):
Percentage of
Aggregate Principal
Principal Payment Date Amount Outstanding
December 31, 1999 0.2075%
March 31, 2000 0.2075%
June 30, 2000 0.2075%
September 30, 2000 0.2075%
December 31, 2000 0.2075%
47
March 31, 2001 0.2075%
June 30, 2001 0.2075%
September 30, 2001 0.2075%
December 31, 2001 0.2075%
March 31, 2002 0.2075%
June 30, 2002 0.2075%
September 30, 2002 0.2075%
December 31, 2002 0.2075%
March 31, 2003 0.2075%
June 30, 2003 0.2075%
September 30, 2003 0.2075%
December 31, 2003 0.2075%
March 31, 2004 0.2075%
June 30, 2004 0.2075%
September 30, 2004 0.2075%
December 31, 2004 0.2125%
March 31, 2005 0.2125%
June 30, 2005 0.2125%
September 30, 2005 0.2125%
December 31, 2005 45.0000%
March 31, 2006 50.0000%
3.02 Interest. The Company hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan made by such Lender for the period from and including the
date of such Loan to but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) plus the Applicable Margin
and
(b) during such periods as such Loan is a Eurodollar Loan, for
each Interest Period relating thereto, the Eurodollar Rate for such
Loan for such Interest Period plus the Applicable Margin.
Notwithstanding the foregoing, the Company hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate on any
48
principal of any Loan made by such Lender and on any other amount payable by the
Company hereunder to or for account of such Lender, that shall not be paid in
full when due (whether at stated maturity, by acceleration, by mandatory
prepayment or otherwise), for the period from and including the due date thereof
to but excluding the date the same is paid in full. Accrued interest on each
Loan shall be payable (i) in the case of a Base Rate Loan, quarterly on the
Quarterly Dates, (ii) in the case of a Eurodollar Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, and (iii) in the case of any Loan, upon the payment or prepayment
thereof or the Conversion of such Loan to a Loan of another Type (but only on
the principal amount so paid, prepaid or Converted), except that interest
payable at the Post-Default Rate shall be payable from time to time on demand.
Promptly after the determination of any interest rate provided for herein or any
change therein, the Administrative Agent shall give notice thereof to the
Lenders to which such interest is payable and to the Company.
Notwithstanding anything to the contrary contained herein or
in the Existing Credit Agreement, accrued interest payable under Section 3.02 of
the Existing Credit Agreement with respect to any of the "Loans" outstanding
thereunder shall be paid on the Effective Date.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by the Company
under this Agreement and under any other Loan Document, shall be made in
Dollars, in immediately available funds, without deduction, set-off or
counterclaim, to the Administrative Agent at an account maintained by the
Administrative Agent with Chase at the Principal Office as notified to the
Company (or, at such other account as the Administrative Agent may designate),
not later than 2:00 p.m. New York time on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day).
(b) Any Lender for whose account any such payment is to be
made may (but shall not be obligated to) debit the amount of any such payment
that is not made by such time to any ordinary deposit account of the Company
with such Lender (with notice to the Company and the Administrative Agent),
provided that such Lender's failure to give such notice shall not affect the
validity of such debit.
49
(c) The Company shall, at the time of making each payment
under this Agreement for account of any Lender, specify to the Administrative
Agent (which shall so notify the intended recipient(s) thereof) the Loans or
other amounts payable by the Company hereunder to which such payment is to be
applied (and in the event that the Company fails to so specify, or if an Event
of Default has occurred and is continuing, the Administrative Agent may
distribute such payment to the Lenders for application in such manner as it or
the Majority Lenders, subject to Section 4.02 hereof, may determine to be
appropriate).
(d) Each payment received by the Administrative Agent under
this Agreement for account of any Lender shall be paid by the Administrative
Agent promptly to such Lender, in immediately available funds, for account of
such Lender's Applicable Lending Office for the Loan or other obligation in
respect of which such payment is made.
(e) If the due date of any payment under this Agreement would
otherwise fall on a day that is not a Business Day, such date shall be extended
to the next succeeding Business Day, and interest shall be payable for any
principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein:
(a) each borrowing of Loans of a particular Class (including
of a particular Series of Incremental Facility Term Loans) from the
Lenders under Section 2.01 hereof shall be made from the relevant
Lenders, each payment of commitment fee under Section 2.04 hereof in
respect of Commitments of a particular Class shall be made for account
of the relevant Lenders, and each termination or reduction of the
amount of the Commitments of a particular Class under Section 2.03
hereof shall be applied to the respective Commitments of such Class of
the relevant Lenders, pro rata according to the amounts of their
respective Commitments of such Class;
(b) except as otherwise provided in Section 5.04 hereof,
Eurodollar Loans of any Class (including of a particular Series of
Incremental Facility Term Loans) having the same Interest Period shall
be allocated pro rata among the relevant Lenders according to the
amounts of their respective Revolving Credit, Facility A Term Loan
Commitments, Facility B Term Loan Commitments and Incremental Facility
Commitments of the relevant Series (in the case of the making of Loans)
or their respective Revolving Credit Loans, Facility A Term Loans,
Facility B Term Loans and Incremental Facility Loans of the relevant
Series (in the case of Conversions and Continuations of Loans);
(c) each payment or prepayment of principal of Loans, of any
Class by the Company shall be made for account of the relevant Lenders
pro rata in accordance
50
with the respective unpaid principal amounts of the Loans of such Class
held by them; and
(d) each payment of interest on Loans of any Class by the
Company shall be made for account of the relevant Lenders pro rata in
accordance with the amounts of interest on such Loans then due and
payable to the respective Lenders.
4.03 Computations. Interest on Loans and commitment fee shall
be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable.
4.04 Minimum Amounts. Except for mandatory prepayments made
pursuant to Section 2.09 hereof and Conversions or prepayments made pursuant to
Section 5.04 hereof, each borrowing, Conversion and partial prepayment of
principal of Base Rate Loans shall be in an aggregate amount at least equal to
$500,000 or a larger multiple of $100,000 and each borrowing, Conversion and
partial prepayment of Eurodollar Loans shall be in an aggregate amount at least
equal to $2,000,000 or a larger multiple of $1,000,000 (borrowings, Conversions
or prepayments of or into Loans of different Types or, in the case of Eurodollar
Loans, having different Interest Periods at the same time hereunder to be deemed
separate borrowings, Conversions and prepayments for purposes of the foregoing,
one for each Type or Interest Period). If any Eurodollar Loans would otherwise
be in a lesser principal amount for any period, such Loans shall be Base Rate
Loans during such period.
4.05 Certain Notices. Notices by the Company to the
Administrative Agent of terminations or reductions of the Commitments and of
borrowings, Conversions, Continuations and optional prepayments of Loans and
Classes of Loans, of Types of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the
Administrative Agent not later than 11:00 a.m. New York time on the number of
Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
51
Number of
Business
Notice Days Prior
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans (including, if applicable, the particular Series of Incremental
Facility Term Loans) to be borrowed, Converted, Continued or prepaid and the
amount (subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate.
The Administrative Agent shall promptly notify the Lenders of
the contents of each such notice. In the event that the Company fails to select
the Type of Loan, or the duration of any Interest Period for any Eurodollar
Loan, within the time period and otherwise as provided in this Section 4.05,
such Loan (if outstanding as a Eurodollar Loan) will be automatically Converted
into a Base Rate Loan on the last day of the then current Interest Period for
such Loan or (if outstanding as a Base Rate Loan) will remain as, or (if not
then outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Lender or the Company
(the "Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Company) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
52
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day and, if
such recipient(s) shall fail promptly to make such payment, the Administrative
Agent shall be entitled to recover such amount, on demand, from the Payor,
together with interest as aforesaid, provided that if neither the recipient(s)
nor the Payor shall return the Required Payment to the Administrative Agent
within three Business Days of the Advance Date, then, retroactively to the
Advance Date, the Payor and the recipient(s) shall each be obligated to pay
interest on the Required Payment as follows:
(i) if the Required Payment shall represent a payment to be
made by the Company to the Lenders, the Company and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the Post-Default Rate
(without duplication of the obligation of the Company under Section
3.02 hereof to pay interest on the Required Payment at the Post-Default
Rate), it being understood that the return by the recipient(s) of the
Required Payment to the Administrative Agent shall not limit such
obligation of the Company under said Section 3.02 to pay interest at
the Post-Default Rate in respect of the Required Payment and
(ii) if the Required Payment shall represent proceeds of a
Loan to be made by the Lenders to the Company, the Payor and the
Company shall each be obligated retroactively to the Advance Date to
pay interest in respect of the Required Payment pursuant to whichever
of the rates specified in Section 3.02 hereof is applicable to the Type
of such Loan, it being understood that the return by the Company of the
Required Payment to the Administrative Agent shall not limit any claim
the Company may have against the Payor in respect of such Required
Payment.
4.07 Sharing of Payments, Etc.
(a) The Company agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it for the
credit or account of the Company at any of its offices, in Dollars or in any
other
53
currency, against any principal of or interest on any of such Lender's Loans or
any other amount payable to such Lender hereunder, that is not paid when due
(regardless of whether such deposit or other indebtedness are then due to the
Company), in which case it shall promptly notify the Company and the
Administrative Agent thereof, provided that such Lender's failure to give such
notice shall not affect the validity thereof.
(b) If any Lender shall obtain from the Company payment of any
principal of or interest on any Loan of any Class owing to it or payment of any
other amount under this Agreement or any other Loan Document through the
exercise of any right of set-off, banker's lien or counterclaim or similar right
or otherwise (other than from the Administrative Agent as provided herein), and,
as a result of such payment, such Lender shall have received a greater
percentage of the principal of or interest on the Loans of such Class or such
other amounts then due hereunder or thereunder by the Company to such Lender
than the percentage received by any other Lender, it shall promptly purchase
from such other Lenders participations in (or, if and to the extent specified by
such Lender, direct interests in) the Loans of such Class or such other amounts,
respectively, owing to such other Lenders (or in interest due thereon, as the
case may be) in such amounts, and make such other adjustments from time to time
as shall be equitable, to the end that all the Lenders shall share the benefit
of such excess payment (net of any expenses that may be incurred by such Lender
in obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans of such Class or such other
amounts, respectively, owing to each of the Lenders. To such end all the Lenders
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
(c) The Company agrees that any Lender so purchasing such a
participation (or direct interest) may, to the fullest extent permitted by law,
exercise all rights of set-off, banker's lien, counterclaim or similar rights
with respect to such participation as fully as if such Lender were a direct
holder of Loans or other amounts (as the case may be) owing to such Lender in
the amount of such participation.
(d) Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Company. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 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 4.07 to
share in the benefits of any recovery on such secured claim.
54
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Company shall pay directly to each Lender from time to
time such amounts as such Lender may determine to be necessary to compensate
such Lender for any costs that such Lender determines are attributable to its
making or maintaining of any Eurodollar Loans or its obligation to make any
Eurodollar Loans hereunder, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such Loans or such obligation, resulting
from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office
for any of such Loans) to any tax, duty or other charge in respect of
such Loans or changes the basis of taxation of any amounts payable to
such Lender under this Agreement in respect of any of such Loans
(excluding changes in the rate of tax on the overall net income of such
Lender or of such Applicable Lending Office by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement utilized in
the determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof), or any commitment of such Lender
(including, without limitation, the Commitments of such Lender
hereunder); or
(iii) imposes any other condition affecting this Agreement (or
any of such extensions of credit or liabilities) or its Commitments.
If any Lender requests compensation from the Company under this Section 5.01(a),
the Company may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or Continue
Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the
Regulatory Change giving rise to such request ceases to be in effect (in which
case the provisions of Section 5.04 hereof shall be applicable), provided that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Company shall pay directly to
each Lender from time to time on request such amounts as such Lender may
determine to be necessary to compensate such Lender (or, without duplication,
the bank holding company of which such Lender is a
55
subsidiary) for any costs that it determines are attributable to the maintenance
by such Lender (or any Applicable Lending Office or such bank holding company),
pursuant to any law or regulation or any interpretation, directive or request
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) of any court or governmental or monetary authority
(including the NAIC) (i) following any Regulatory Change or (ii) implementing
any risk-based capital guideline or other requirement (whether or not having the
force of law and whether or not the failure to comply therewith would be
unlawful) hereafter issued by any government or governmental or supervisory
authority (including the NAIC) implementing at the national level the Basle
Accord, of capital in respect of its Commitments or Loans (such compensation to
include, without limitation, an amount equal to any reduction of the rate of
return on assets or equity of such Lender (or any Applicable Lending Office or
such bank holding company) to a level below that which such Lender (or any
Applicable Lending Office or such bank holding company) could have achieved but
for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Company of any event
occurring after the date hereof entitling such Lender to compensation under
paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any
event within 45 days, after such Lender obtains actual knowledge thereof;
provided that (i) if any Lender fails to give such notice within 45 days after
it obtains actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 45 days prior to the date that such
Lender does give such notice and (ii) each Lender will designate a different
Applicable Lending Office for the Loans of such Lender affected by such event if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender, except that such Lender shall have no obligation
to designate an Applicable Lending Office located in the United States of
America. Each Lender will furnish to the Company a certificate setting forth the
basis and amount of each request by such Lender for compensation under paragraph
(a) or (b) of this Section 5.01. Determinations and allocations by any Lender
for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) of this Section 5.01, or of the effect of capital
maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate
of return of maintaining Loans or its obligation to make Loans, or on amounts
receivable by it in respect of Loans, and of the amounts required to compensate
such Lender under this Section 5.01, shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any Eurodollar
Base Rate for any Interest Period:
56
(a) the Administrative Agent determines, which determination
shall be conclusive, that quotations of interest rates for the relevant
deposits referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof are not being provided in the relevant amounts or
for the relevant maturities for purposes of determining rates of
interest for Eurodollar Loans as provided herein; or
(b) if the related Loans are Revolving Credit Loans, the
Majority Revolving Credit Lenders, if the related Loans are Facility A
Term Loans, the Majority Facility A Term Loan Lenders, if the related
Loans are Facility B Term Loans, the Majority Facility B Term Loan
Lenders, or if the related Loans are Incremental Facility Loans of any
Series, the Majority Incremental Facility Lenders of such Series
determine, which determination shall be conclusive, and notify the
Administrative Agent that the relevant rates of interest referred to in
the definition of "Eurodollar Base Rate" in Section 1.01 hereof upon
the basis of which the rate of interest for Eurodollar Loans for such
Interest Period is to be determined are not likely adequately to cover
the cost to such Lenders of making or maintaining Eurodollar Loans for
such Interest Period;
then the Administrative Agent shall give the Company and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans, and the
Company shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans
into Base Rate Loans in accordance with Section 2.08 hereof.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
the Company thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Base Rate Loans into, Eurodollar
Loans shall be suspended until such time as such Lender may again make and
maintain Eurodollar Loans (in which case the provisions of Section 5.04 hereof
shall be applicable).
5.04 Treatment of Affected Loans. If the obligation of any
Lender to make Eurodollar Loans or to Continue, or to Convert Base Rate Loans
into, Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03
hereof, such Lender's Eurodollar Loans shall be automatically Converted into
Base Rate Loans on the last day(s) of the then current Interest Period(s) for
Eurodollar Loans (or, in the case of a Conversion resulting from a circumstance
described in Section 5.03 hereof, on such earlier date as such Lender may
specify to the Company with a copy to the Administrative Agent) and, unless and
until such
57
Lender gives notice as provided below that the circumstances specified in
Section 5.01 or 5.03 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have
been so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Eurodollar Loans shall be made or Converted into Base
Rate Loans, and all Base Rate Loans of such Lender that would otherwise
be Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Company with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans of the same
Class made by other Lenders are outstanding, such Lender's Base Rate Loans of
the same Class shall be automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the
extent necessary so that, after giving effect thereto, all Base Rate and
Eurodollar Loans of such Class are allocated among the Lenders ratably (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments of such Class.
5.05 Compensation. The Company shall pay to the Administrative
Agent for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan made by such Lender for any reason
(including, without limitation, the acceleration of the Loans pursuant
to Section 9 hereof) on a date other than the last day of the Interest
Period for such Loan; or
(b) any failure by the Company for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 6 hereof to be satisfied) to borrow a Eurodollar
Loan from such Lender on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have
58
accrued on the principal amount so paid, prepaid, Converted or not borrowed for
the period from the date of such payment, prepayment, Conversion or failure to
borrow to the last day of the then current Interest Period for such Loan (or, in
the case of a failure to borrow, the Interest Period for such Loan that would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein over (ii) the amount of interest
that otherwise would have accrued on such principal amount at a rate per annum
equal to the interest component of the amount such Lender would have bid in the
London interbank market for Dollar deposits of leading banks in amounts
comparable to such principal amount and with maturities comparable to such
period (as reasonably determined by such Lender).
Without limiting the generality of the foregoing, on the
Effective Date, the Company shall pay to the Administrative Agent for account of
the Existing Lenders under the Existing Credit Agreement any amounts that would
be payable under Section 5.05 of the Existing Credit Agreement assuming any
"Eurodollar Loans" outstanding thereunder had been paid in full on the Effective
Date.
5.06 U.S. Taxes.
(a) The Company agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, provided
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Lender hereunder unless such Lender
is, on the date hereof (or on the date it becomes a Lender hereunder as
provided in Section 11.06(b) hereof) and on the date of any change in
the Applicable Lending Office of such Lender, entitled to submit and
does submit pursuant to Section 5.06(c) either (A) a Form 1001
(relating to such Lender and entitling it to a complete exemption from
withholding on all interest to be received by it hereunder in respect
of the Loans) or a Form 4224 (relating to all interest to be received
by such Lender hereunder in respect of the Loans), or (B) in the case
of a Lender not treated as a bank for regulatory, tax or other legal
purposes in any jurisdiction, (1) a certificate under penalties of
perjury that such Lender is not a bank, a holder of equity of the
Company or a controlled foreign corporation related to the Company for
purposes of section 881(c)(3) of the Code or a conduit entity within
the meaning of United States Treasury Regulations section 1.881-3 and
(2) a duly completed Internal Revenue Service Form W-8; or
59
(ii) to any U.S. Taxes imposed solely by reason of the failure
by such non-U.S. Person (or, if such non-U.S. Person is not the
beneficial owner of the relevant Loan, such beneficial owner) to comply
with applicable certification, information, documentation or other
reporting requirements concerning the nationality, residence, identity
or connections with the United States of America of such non-U.S.
Person (or beneficial owner, as the case may be) to the extent it is
legally entitled to do so if such compliance is required by statute or
regulation of the United States of America as a precondition to relief
or exemption from such U.S. Taxes.
For the purposes of this Section 5.06(a), (A) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (B) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a claim
to which such Form relates) and (C) "Form W-8" shall mean Form W-8 (Certificate
of Foreign Status of the Department of Treasury of the United States of
America). Each of the Forms referred to in the foregoing clauses (A), (B) and
(C) shall include such successor and related forms as may from time to time be
adopted by the relevant taxing authorities of the United States of America to
document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the
Administrative Agent or any Lender from which it is required by law to make any
deduction or withholding, and within 30 days after it is required by law to
remit such deduction or withholding to any relevant taxing or other authority,
the Company shall deliver to the Administrative Agent for delivery to such
non-U.S. Person evidence satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
(c) Each Lender that is not a U.S. Person agrees, to the
extent it is entitled to an exemption from (or reduction of) the amount of
withholding of U.S. Taxes from interest payments hereunder, to furnish to the
Company on or prior to the date hereof (or the date on which it becomes a Lender
as provided in Section 11.06(b) hereof) two copies of Form 1001, Form 4224 or
Form W-8 (as applicable), and any other form reasonably requested by the Company
which such Lender may lawfully deliver that is necessary or required to
establish such exemption (or reduction).
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Section 6. Conditions Precedent.
6.01 Effectiveness. The effectiveness of this Agreement (and
the amendment and restatement of the Existing Credit Agreement to be effected
hereby), and the obligation of any Lender to make its initial Loan hereunder are
subject to (i) the condition precedent that such effectiveness shall occur on or
before December 31, 1997, and (ii) the receipt by the Administrative Agent of
the following documents, each of which shall be satisfactory to the
Administrative Agent (and to the extent specified below, to the Majority
Lenders) in form and substance:
(a) Corporate and Partnership Documents. Certified copies of
the Partnership Agreement and of the charter and by-laws (or equivalent
documents) of each of the Company, the Restricted Subsidiaries, the
General Partner, the Limited Partner, FrontierVision LP, FVP GP, L.P.
and FrontierVision Inc. (hereinafter for purposes of this Section
6.01(a) and 8.17(a)(iii) hereof collectively referred to as the "Credit
Parties") and of all partnership and corporate authority for the Credit
Parties (including, without limitation, board of director resolutions
and evidence of the incumbency, including specimen signatures, of
officers for each Credit Party) with respect to the execution, delivery
and performance of such of the Basic Documents to which such Credit
Party is intended to be a party and each other document to be delivered
by such Credit Party from time to time in connection herewith and the
Loans hereunder (and the Administrative Agent and each Lender may
conclusively rely on such certificate until it receives notice in
writing from such Credit Party, as the case may be, to the contrary).
(b) Officer's Certificate. A certificate of a Senior Officer,
dated the Effective Date, to the effect set forth in the first sentence
of Section 6.03 hereof.
(c) Opinion of Counsel to the Company. An opinion, dated the
Effective Date, of Edwards & Angell, counsel to the Obligors,
substantially in the form of Exhibit G hereto and covering such other
matters as the Administrative Agent or any Lender may reasonably
request (and the Company hereby instructs such counsel to deliver such
opinion to the Lenders and the Administrative Agent).
(d) Opinion of Special New York Counsel to Chase. An opinion,
dated the Effective Date, of Milbank, Tweed, Hadley & McCloy, special
New York counsel to Chase, substantially in the form of Exhibit H
hereto (and Chase hereby instructs such counsel to deliver such opinion
to the Lenders).
(e) Amendment No. 2 to Security Agreement. Amendment No. 2 to
the Security Agreement, in substantially the form of Exhibit C-3
hereto, duly executed
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and delivered by the Company and the Administrative Agent. In
addition, the Company shall have taken such other action as the
Administrative Agent shall have requested in order to perfect the
security interests created pursuant to the Security Agreement (other
than perfection of security interests in fixtures (under and as defined
in the Uniform Commercial Code) and Motor Vehicles (under and as
defined in the Security Agreement)) to the extent such filings have not
already been effected pursuant to the Existing Credit Agreement,
including, without limitation, delivering to the Administrative Agent,
for filing, appropriately completed and duly executed copies of Uniform
Commercial Code financing statements.
(f) Amendment No. 3 to Partner Pledge Agreement. Amendment No.
3 to the Partner Pledge Agreement, in substantially the form of Exhibit
D-4 hereto, duly executed and delivered by FrontierVision and
FrontierVision Holdings and the Administrative Agent. In addition,
FrontierVision and FrontierVision Holdings shall have taken such other
action as the Administrative Agent shall have requested in order to
perfect the security interests created pursuant to the Partner Pledge
Agreement (to the extent such action has not already been taken
pursuant to the Existing Credit Agreement), including, without
limitation, delivering to the Administrative Agent, for filing,
appropriately completed and duly executed copies of Uniform Commercial
Code financing statements.
(g) Amendment No. 3 to Stock Pledge Agreement. Amendment No. 3
to the Stock Pledge Agreement, in substantially the form of Exhibit E-4
hereto, duly executed and delivered by FrontierVision Holdings and the
Administrative Agent. In addition, FrontierVision Holdings shall have
taken such other action as the Administrative Agent shall have
requested in order to perfect the security interests created pursuant
to the Stock Pledge Agreement (to the extent such action has not
already been taken pursuant to the Existing Credit Agreement),
including, without limitation, delivering to the Administrative Agent,
for filing, appropriately completed and duly executed copies of Uniform
Commercial Code financing statements.
(h) Repayment of UVC Notes. Evidence that prior to or
concurrently with the making of the initial Loans hereunder, the
principal of and interest on, and all other amounts owing in respect of
the UVC Notes shall have been paid in full.
(i) Debt Ratio. Evidence that, as of the Effective Date and
after giving effect to the Loans hereunder to be outstanding on the
Effective Date, the Debt Ratio shall not exceed 6.75 to 1, and the
Administrative Agent shall have received a certificate of a Senior
Officer to such effect.
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(j) Insurance. Certificates of insurance evidencing the
existence of all insurance required to be maintained by the Company and
its Restricted Subsidiaries pursuant to Section 8.04 hereof and the
designation of the Administrative Agent as the loss payee or additional
named insured, as the case may be, thereunder to the extent required by
said Section 8.04, such certificates to be in such form and contain
such information as is specified in said Section 8.04. In addition, the
Company shall have delivered to the Administrative Agent a certificate
of a Senior Officer setting forth the insurance obtained by it in
accordance with the requirements of Section 8.04 and stating that such
insurance is in full force and effect and that all premiums then due
and payable thereon have been paid.
(k) Solvency Certificate. A certificate from a Senior Officer,
to the effect that, as of the Effective Date and immediately after
giving effect to the Loans hereunder to be outstanding on the Effective
Date and to the other transactions contemplated hereunder to occur on
or before the Effective Date, (i) the aggregate value of all Properties
of the Company and its Restricted Subsidiaries at their present fair
saleable value (i.e., the amount that may be realized within a
reasonable time, considered to be six months to one year, either
through collection or sale at the regular market value, conceiving the
latter as the amount that could be obtained for the Property in
question within such period by a capable and diligent businessman from
an interested buyer who is willing to purchase under ordinary selling
conditions), exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated
liabilities) of the Company and its Restricted Subsidiaries, (ii) the
Company and its Restricted Subsidiaries will not, on a consolidated
basis, have an unreasonably small capital with which to conduct their
business operations as heretofore conducted and (iii) the Company and
its Restricted Subsidiaries will have, on a consolidated basis,
sufficient cash flow to enable them to pay their debts as they mature.
Such certificate shall also state that the financial projections and
underlying assumptions contained in such analyses were at the time
made, and on the Effective Date are, fair and reasonable and accurately
computed.
(l) Other Documents. Such other documents as the
Administrative Agent or the Majority Lenders or special New York
counsel to Chase may reasonably request.
The effectiveness of this Agreement (and the amendment and restatement of the
Existing Credit Agreement contemplated hereby) and the obligation of any Lender
to make its initial Loan hereunder is also subject to the payment by the Company
of such fees as the Company shall have agreed to pay to any Lender or the
Administrative Agent in connection herewith, including, without limitation, the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy, special New
York counsel to Chase, in connection with the negotiation, preparation,
execution and delivery of this Agreement and the other Loan Documents
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and the making of the Loans hereunder (to the extent that statements for such
fees and expenses have been delivered to the Company).
6.02 Scheduled Acquisition Loans. The obligation of any Lender
to make any Loan hereunder the proceeds of which are to be applied to finance in
whole or in part the purchase price of any of the Scheduled Acquisitions are
subject to the receipt by the Administrative Agent of the following documents,
each of which shall be satisfactory to the Administrative Agent (and to the
extent specified below, to the Majority Lenders) in form and substance:
(a) Acquisition Environmental Surveys. To the extent obtained
by the Company in connection with such Scheduled Acquisition, copies of
Acquisition Environmental Surveys in form and substance satisfactory to
the Administrative Agent reflecting that the CATV Systems being
acquired pursuant to such Scheduled Acquisition will not be subject to
any material environmental liabilities.
(b) Pro Forma Balance Sheet. A pro forma balance sheet of the
Company and its Restricted Subsidiaries as at the last day of a fiscal
quarter ending within three months prior to the date of such Scheduled
Acquisition, and the related pro forma statement of income and retained
earnings (deficit) and cash flow for the immediately preceding
three-month period, giving effect to such Scheduled Acquisition and the
Loans hereunder being made in connection with such Scheduled
Acquisition, in form and providing such details as are reasonably
satisfactory to the Administrative Agent, together with (x) a
reconciliation of the information provided in such pro forma financial
statements to the Debt Ratio determined for purposes of Section 6.02(e)
hereof and (y) a certificate of a Senior Officer stating that said
financial statements fairly present the pro forma financial condition
of the Company as at such date and for such period in accordance with
GAAP, after giving effect to such Scheduled Acquisition and such Loans.
(c) Consummation of Acquisitions. Evidence that such Scheduled
Acquisition shall have been (or shall be simultaneously) consummated in
all material respects in accordance with the terms of the respective
Scheduled Acquisition Agreement (except for any modifications,
supplements or waivers thereof, or written consents or determinations
made by the parties thereto, that shall be satisfactory to the Majority
Lenders), and the Administrative Agent shall have received a
certificate of a Senior Officer to such effect. In addition, promptly
following the consummation of such Scheduled Acquisition the Company
shall deliver to the Administrative Agent true and complete copies of
the documents delivered in connection with the closing of such
Scheduled Acquisition pursuant to such Scheduled Acquisition Agreement,
including, to the extent counsel for the respective Seller(s) are
willing to deliver the same (and,
64
in that connection, the Company agrees to use its reasonable commercial
efforts to obtain the same), copies of the legal opinions delivered to
the Company pursuant to such Scheduled Acquisition Agreement in
connection with such Scheduled Acquisition, together with a letter from
each Person delivering such opinion (or authorization within such
opinion) authorizing reliance thereon by the Administrative Agent and
the Lenders.
(d) Repayment of Indebtedness. Evidence that the principal of
and interest on, and all other amounts owing in respect of, any
Indebtedness of any entity acquired pursuant to such Scheduled
Acquisition (or that would be secured by Liens on the Property being
acquired in such Scheduled Acquisition) shall have been paid in full
and such Liens shall have been released (in each case to the extent
such Indebtedness would not be permitted hereunder).
(e) Debt Ratio. Evidence that, as of the date of such
Scheduled Acquisition and after giving effect to the Loans hereunder to
be outstanding on the Effective Date, the Debt Ratio shall not exceed
6.75 to 1, and the Administrative Agent shall have received a
certificate of a Senior Officer to such effect.
(f) Security Documents. Such Uniform Commercial Code financing
statements, as the Administrative Agent shall have requested in order
to perfect the security interests created pursuant to the Security
Agreement in the Property being acquired pursuant to such Scheduled
Acquisition (other than perfection of security interests in fixtures
(under and as defined in the Uniform Commercial Code) and Motor
Vehicles (under and as defined in the Security Agreement)).
(g) Other Documents. Such other documents as the
Administrative Agent or the Majority Lenders or special New York
counsel to Chase may reasonably request.
6.03 Initial and Subsequent Loans. The obligation of the
Lenders to make any Loan to the Company upon the occasion of each borrowing
hereunder (including the initial borrowing) is subject to the further conditions
precedent that, both immediately prior to the making of such Loan and also after
giving effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company in
Section 7 hereof, and by each Obligor in each of the other Loan
Documents to which it is a party, shall be true and complete on and as
of the date of the making of such Loan with the same force and effect
as if made on and as of such date (or, if any such
65
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date).
Each notice of borrowing by the Company hereunder shall constitute a
certification by the Company to the effect set forth in the preceding sentence
(both as of the date of such notice and, unless the Company otherwise notifies
the Administrative Agent prior to the date of such borrowing, as of the date of
such borrowing).
6.04 Determinations by Lenders. For purposes of determining
compliance with the conditions specified in Sections 6.01 and 6.02 hereof, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or be acceptable or satisfactory to the Majority Lenders
unless an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the initial Loan hereunder specifying its objection thereto, and such
Lender shall not have made available to the Administrative Agent such Lender's
ratable portion of such Loan.
Section 7. Representations and Warranties. The Company
represents and warrants to the Administrative Agent and the Lenders that:
7.01 Corporate Existence. Each of the Company and its
Restricted Subsidiaries: (a) is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify could
(either individually or in the aggregate) have a Material Adverse Effect.
7.02 Financial Condition. The Company has heretofore furnished
to the Administrative Agent and the other Agents the following financial
statements:
(i) audited statements of income, partners capital and cash
flows of the Company for the fiscal year ended December 31, 1996, and
the related balance sheet of the Company as at the end of such fiscal
year;
66
(ii) unaudited statements of income, partners capital and cash
flows of the Company for the nine-month period ended September 30,
1997, and the related balance sheet of the Company as at the end of
such fiscal period; and
(iii) financial statements with respect to each of the CATV
Systems being acquired pursuant to the Scheduled Acquisitions as set
forth in Schedule XI hereto.
None of the Company nor any of its Subsidiaries has on the date hereof any
material contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said balance
sheets as at said dates and except as disclosed in Schedule VII hereto. Since
December 31, 1996, there has been no material adverse change in the consolidated
financial condition, operations, business or prospects (x) of the Company and
its Restricted Subsidiaries taken as a whole from that set forth in said
financial statements as at said date referred to in clause (i) above, or (y) of
the CATV Systems (taken as a whole) to be purchased by the Company on or before
the Effective Date from that set forth in said financial statements referred to
in clause (iii) above.
7.03 Litigation. Except as disclosed in Schedule V hereto,
there are no legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the knowledge
of the Company) threatened against the Company or any of its Subsidiaries or
against any Seller with respect to any Scheduled Acquisition (and in respect of
which the Company would be obligated after giving effect to such Scheduled
Acquisition), that, if adversely determined could (either individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect.
7.04 No Breach. None of the execution and delivery of this
Agreement and the other Basic Documents, the consummation of the transactions
herein and therein contemplated or compliance with the terms and provisions
hereof and thereof will (a) conflict with or result in a breach of, or require
any consent under, (i) the Partnership Agreement, the partnership agreement of
the General Partner or the partnership agreement of its general partner or the
partnership agreement of its general partner or the charter or by-laws of its
general partner, or (ii) any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency (except as
otherwise provided in Section 7.06 hereof), or (iii) any agreement or instrument
to which the General Partner or the Company or any of its Subsidiaries is a
party or by which any of them or any of their Property is bound or to which any
of them is subject (except for any such conflict, breach or unobtained consent
that could not have a Material Adverse Effect and that could not result in any
liability of any Agent or any Lender), or (b) constitute a default under any
such agreement or instrument (except for any such default that could not have a
Material Adverse Effect and that could not result in any liability of any Agent
or any Lender), or (c) except for
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the Liens created pursuant to the Security Documents, result in the creation or
imposition of any Lien upon any Property of the General Partner, the Company or
any of its Subsidiaries pursuant to the terms of any such agreement or
instrument.
7.05 Action. The Company has all necessary partnership power,
authority and legal right to execute, deliver and perform its obligations under
each of the Basic Documents to which it is a party; the execution, delivery and
performance by the Company of each of the Basic Documents to which it is a party
have been duly authorized by all necessary partnership action on its part; and
this Agreement has been duly and validly executed and delivered by the Company
and constitutes, and each of the other Basic Documents to which it is a party
when executed and delivered will constitute, its legal, valid and binding
obligation, enforceable against the Company in accordance with its terms, except
as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
7.06 Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any governmental or regulatory authority
or agency, or any securities exchange, are necessary for the execution, delivery
or performance by the Company of this Agreement or any of the other Basic
Documents to which it is a party or for the legality, validity or enforceability
hereof or thereof, except for (i) filings and recordings in respect of the Liens
created pursuant to the Security Documents, (ii) the authorizations, approvals,
consents, filings and registrations contemplated by the Acquisition Agreements
(each of which shall have been made or obtained on or before the date of the
closing of the respective acquisition thereunder, to the extent required under
the respective Acquisition Agreement to be obtained before such date) and (iii)
the exercise of remedies under the Security Documents (and the creation of a
valid security interest in Franchises and the other Collateral as contemplated
by the Security Agreement and 8.19 hereof) may require the prior approval of the
FCC or the issuing municipalities or States under one or more of the Franchises.
7.07 Use of Credit. None of the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
the Loans hereunder will be used to buy or carry any Margin Stock.
7.08 ERISA. Each Plan, and, to the knowledge of the Company,
each Multiemployer Plan, is in compliance in all material respects with, and has
been administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no event
or condition has occurred and is continuing as
68
to which the Company would be under an obligation to furnish a report to the
Administrative Agent under Section 8.01(e) hereof.
7.09 Taxes. The Company and the General Partner are
partnerships for Federal income tax purposes. The Company and its Subsidiaries
(and the General Partner) have filed all Federal income tax returns and all
other material tax returns and information statements that are required to be
filed by them and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Company or any of its Subsidiaries. The
charges, accruals and reserves on the books of the Company and its Subsidiaries
in respect of taxes and other governmental charges are, in the opinion of the
Company, adequate. The Company has not given or been requested to give a waiver
of the statute of limitations relating to the payment of any Federal, state,
local and foreign taxes or other impositions.
7.10 Investment Company Act. Neither the Company nor any of
its Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.11 Public Utility Holding Company Act. Neither the Company
nor any of its Subsidiaries is a "holding company", or an "affiliate" of a
"holding company" or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
7.12 Material Agreements and Liens.
(a) Part A of Schedule II hereto is a complete and correct
list of each credit agreement, loan agreement, indenture, purchase agreement,
guarantee, letter of credit or other arrangement providing for or otherwise
relating to any Indebtedness or any extension of credit (or commitment for any
extension of credit) to, or guarantee by, the Company or any of its
Subsidiaries, outstanding on the date hereof, or that (after giving effect to
the transactions contemplated hereunder to occur on or before the Effective
Date) will be outstanding on the Effective Date, the aggregate principal or face
amount of which equals or exceeds (or may equal or exceed) $5,000,000, and the
aggregate principal or face amount outstanding or that may become outstanding
under each such arrangement is correctly described in Part A of said Schedule
II.
(b) Part B of Schedule II hereto is a complete and correct
list of each Lien securing Indebtedness of any Person outstanding on the date
hereof, or that (after giving effect to the transactions contemplated hereunder
to occur on or before the Effective Date) will be outstanding on the Effective
Date, the aggregate principal or face amount of which equals or exceeds (or may
equal or exceed) $5,000,000 and covering any Property of the
69
Company or any of its Subsidiaries, and the aggregate Indebtedness secured (or
that may be secured) by each such Lien and the Property covered by each such
Lien is correctly described in Part B of said Schedule II.
7.13 Environmental Matters. Each of the Company and its
Subsidiaries has obtained all environmental, health and safety permits, licenses
and other authorizations required under all Environmental Laws to carry on its
business as now being or as proposed to be conducted, except to the extent
failure to have any such permit, license or authorization would not (either
individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect. Each of such permits, licenses and authorizations is in full
force and effect and each of the Company and its Subsidiaries is in compliance
with the terms and conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
except to the extent failure to comply therewith would not (either individually
or in the aggregate) reasonably be expected to have a Material Adverse Effect.
On the date hereof, except as set forth in Schedule VIII hereto, there are no
underground storage tanks or surface impoundments for Hazardous Materials,
active or abandoned, at any site or facility owned, operated or leased by the
Company.
7.14 Capitalization. The Company has heretofore delivered to
the Administrative Agent and the other Agents a true and complete copy of the
Partnership Agreement; the only General Partner of the Company on the date
hereof is FrontierVision Holdings and the only Limited Partner of the Company on
the date hereof is FrontierVision. As of the date hereof, except as set forth on
Schedule IX hereto, (x) there are no outstanding Equity Rights with respect to
the Company and (y) there are no outstanding obligations of the Company or any
of its Subsidiaries to repurchase, redeem, or otherwise acquire any partnership
or other equity interests in the Company nor are there any outstanding
obligations of the Company or any of its Subsidiaries to make payments to any
Person, such as "phantom stock" payments, where the amount thereof is calculated
with reference to the fair market value or equity value of the Company or any of
its Subsidiaries.
7.15 Subsidiaries, Etc.
(a) Set forth in Part A of Schedule III hereto is a complete
and correct list of all of the Subsidiaries of the Company as of the date hereof
(or as of the most recent date such Schedule shall be supplemented pursuant to
Section 8.05(b)(iv)(J)), or that will be Subsidiaries of the Company on the date
of any Scheduled Acquisition (after giving effect to such Scheduled Acquisition)
together with, for each Subsidiary, (i) the jurisdiction of organization of such
Subsidiary, (ii) each Person holding ownership interests in such
70
Subsidiary and (iii) the nature of the ownership interest held by each such
Person and the percentage of ownership of such Subsidiary represented by such
ownership interests. Except as disclosed in Part A of Schedule III hereto, (x)
each of the Company and its Subsidiaries owns, or will own on the date of any
such supplement (or the date of any Scheduled Acquisition), free and clear of
Liens, and has the unencumbered right to vote, all outstanding ownership
interests in each Person shown to be held by it in Part A of Schedule III
hereto, (y) all of the issued and outstanding capital stock of each such Person
organized as a corporation is validly, issued fully paid and nonassessable and
(z) there are no outstanding Equity Rights with respect to such Person.
(b) Set forth in Part B of Schedule III hereto is a complete
and correct list of all Investments (other than Investments of the type referred
to in paragraphs (b), (c) and (e) of Section 8.08 hereof) held by the Company or
any of its Subsidiaries in any Person on the date hereof, or that will be held
on the Effective Date (after giving effect to the transactions contemplated
hereunder to occur on or before the Effective Date) and, for each such
Investment, (x) the identity of the Person or Persons holding such Investment
and (y) the nature of such Investment. Except as disclosed in Part B of Schedule
III hereto, each of the Company and its Subsidiaries owns (or will own, after
giving effect to the transactions contemplated hereunder to occur on or before
the Effective Date), free and clear of all Liens (other than Liens created
pursuant to the Security Documents), all such Investments.
7.16 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Company to the Administrative Agent or any Lender in connection
with the negotiation, preparation or delivery of this Agreement and the other
Loan Documents or included herein or therein or delivered pursuant hereto or
thereto, when taken as a whole (together with the Information Memorandum) do not
contain any untrue statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Company and its Subsidiaries
to the Administrative Agent and the Lenders in connection with this Agreement
and the other Loan Documents and the transactions contemplated hereby and
thereby will be true, complete and accurate in every material respect, or (in
the case of projections) based on reasonable estimates, on the date as of which
such information is stated or certified. There is no fact known to the Company
that could reasonably be expected to have a Material Adverse Effect that has not
been disclosed herein, in the other Loan Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
7.17 Franchises. Set forth in Schedule IV hereto is a complete
and correct list of all Franchises (identified by issuing authority, franchisee
and expiration date) owned
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by the Company and its Subsidiaries as of the date hereof (or as of the most
recent date such Schedule shall be supplemented pursuant to Section
8.05(b)(iv)(J) hereof), or that (after giving effect to each Scheduled
Acquisition) will be owned by the Company and its Subsidiaries. Each of the
Company and its Subsidiaries possesses or has the right to use or will possess
or have the right to use on the date hereof (or, as applicable, on the date of
any such supplement or Scheduled Acquisition after giving effect thereto) all
such Franchises, and all copyrights, licenses, trademarks, service marks, trade
names or other rights, including licenses and permits granted by the FCC,
agreements with public utilities and microwave transmission companies, pole or
conduit attachment, use, access or rental agreements and utility easements that
are necessary for the conduct of the CATV Systems of the Company and its
Subsidiaries, except for such of the foregoing the absence of which could not
reasonably be expected to have a Material Adverse Effect on the Company or any
of its Subsidiaries, and each of such Franchises, copyrights, licenses, patents,
trademarks, service marks, trade names and rights is (or on the date of any such
supplement or Scheduled Acquisition, after giving effect thereto) in full force
and effect and no material default has occurred and is continuing thereunder. No
approval, application, filing, registration, consent or other action of any
local, state or federal authority is required to enable the Company or any of
its Subsidiaries to take advantage of the rights and privileges intended to be
conferred by any Franchise, except for approvals, applications, filings,
registrations, consents or other actions that (if not made or obtained) could
not reasonably be expected to have a Material Adverse Effect on the Company or
any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has
received any notice from the granting body or any other governmental authority
with respect to any breach of any covenant under, or any default with respect
to, any Franchise. Complete and correct copies of all Franchises (other than
those relating to communities covered by the provisions of Section 505.91 of the
Ohio Revised Code) have heretofore been delivered to the Administrative Agent.
7.18 The CATV Systems.
(a) Each of the Company and its Subsidiaries, and the CATV
System owned by it on the date hereof (or that, after giving effect to any
Scheduled Acquisition or Subsequent Acquisition will be owned by it), are (or,
in the case of any CATV System acquired in a Scheduled Acquisition or a
Subsequent Acquisition, will on the date of such Scheduled Acquisition or
Subsequent Acquisition be) in compliance with all applicable federal, state and
local laws, rules and regulations, including without limitation, the
Telecommunications Act of 1996, the Communications Act of 1934, as amended, the
Cable Communications Policy Act of 1984, the Cable Television Consumer
Protection and Competition Act of 1992, the Copyright Act of 1976, as amended,
and the rules and policies of the FCC and the United States Copyright Office,
including, without limitation, rules and laws governing system registration, use
of aeronautical frequencies and signal carriage, equal employment opportunity,
cumulative leakage index testing and reporting, signal leakage, and
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subscriber privacy, except to the extent that the failure to so comply with any
of the foregoing could not (either individually or in the aggregate) reasonably
be expected to have a Material Adverse Effect. Without limiting the generality
of the foregoing (except to the extent that the failure to comply with any of
the following could not (either individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect and except as set forth in Schedule
VI hereto:
(i) the communities included in the areas covered by the
Franchises have been registered with the FCC;
(ii) all of the periodic performance tests on such CATV
Systems required under the rules and policies of the FCC have been
performed and the results of such tests demonstrate satisfactory
compliance with the applicable requirements being tested in all
material respects;
(iii) such CATV Systems currently meet or exceed the technical
standards set forth in the rules and policies of the FCC, including,
without limitation, the leakage limits contained in 47 C.F.R. Section
76.605(a)(11);
(iv) such CATV Systems are being operated in compliance with
the provisions of 47 C.F.R. Sections 76.610 through 76.619 (mid-band
and super-band signal carriage), including 47 C.F.R. Section 76.611
(compliance with the cumulative signal leakage index);
(v) where required, appropriate authorizations from the FCC
have been obtained for the use of all aeronautical frequencies in use
in such CATV Systems and such CATV Systems are presently being operated
in compliance with such authorizations (and all required certificates,
permits and clearances from governmental agencies, including the
Federal Aviation Administration, with respect to all towers, earth
stations, business radios and frequencies utilized and carried by such
CATV Systems have been obtained);
(vi) all notices to subscribers of such CATV Systems and such
CATV Systems required by the rules and policies of the FCC have been
provided;
(vii) such CATV Systems are in compliance with Part V of Title
VI of the Communications Act of 1934, as amended, as well as any and
all rules and policies adopted by the FCC to implement said Part V; and
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(viii) such CATV Systems are in compliance with the provisions
of the Communications Decency Act of 1996 in effect, as well as any and
all FCC rules and policies in effect to implement said Act.
(b) All notices, statements of account, supplements and other
documents required under Section 111 of the Copyright Act of 1976, as amended,
and under the rules of the Copyright Office with respect to the carriage of
off-air signals by the CATV Systems owned by the Company and its Subsidiaries
have been duly filed, and the proper amount of copyright fees have been paid on
a timely basis, and each such CATV System qualifies for the compulsory license
under Section 111 of the Copyright Act of 1976, as amended, except to the extent
that the failure to so file or pay could not (either individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect.
(c) Except as set forth on Schedule VI hereto, the carriage of
all off-air signals by the CATV Systems owned by the Company and its
Subsidiaries on the date hereof (or that, after giving effect to any Scheduled
Acquisition or Subsequent Acquisition will be owned by it), are (or, in the case
of any CATV System acquired in a Scheduled Acquisition or Subsequent
Acquisition, will on the date of such Scheduled Acquisition or Subsequent
Acquisition be) permitted by valid retransmission consent agreements or by
must-carry elections by broadcasters, except to the extent the failure to obtain
any of the foregoing could not (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
(d) Each of the Company and its Subsidiaries and each Seller
have complied with their respective obligations with regard to protecting the
privacy rights of any past or present customers of the CATV Systems owned by the
Company and its Subsidiaries on the date hereof (or, of the CATV Systems
acquired in any Scheduled Acquisition or Subsequent Acquisition on the date of
such Scheduled Acquisition or Subsequent Acquisition), except to the extent that
the failure to so comply could not (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
(e) None of the Company nor its Subsidiaries has been denied
EEO certification by the FCC, and no FCC proceedings against any such Person in
respect of EEO violation are pending or, to the Company's knowledge, threatened.
(f) The assets of the CATV Systems owned by the Company and
its Subsidiaries on the date hereof (or, of the CATV Systems acquired in any
Scheduled Acquisition or Subsequent Acquisition on the date of such Scheduled
Acquisition or Subsequent Acquisition), are adequate and sufficient for all of
the current operations of such CATV System.
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7.19 Rate Regulation. Each of the Company and its Subsidiaries
have each reviewed and evaluated in detail the FCC rules currently in effect
(the "Rate Regulation Rules") implementing the rate regulation provisions of the
Cable Television Consumer Protection and Competition Act of 1992 as amended by
the Telecommunications Act of 1996 (as so amended, the "Rate Regulation Act").
Based upon such review and completion by the Company and its Subsidiaries of all
applicable worksheets contemplated by the Rate Regulation Rules for each CATV
System owned by the Company and its Subsidiaries on the date hereof (or, for the
CATV Systems acquired in any Scheduled Acquisition or Subsequent Acquisition on
the date of such Scheduled Acquisition or Subsequent Acquisition):
(i) none of such CATV Systems is (or, after giving effect to
such Acquisition will be) subject to effective competition as of the
date hereof;
(ii) except as set forth in Schedule VI hereto, no franchising
authority has notified the Company or any of its Subsidiaries or any
Seller of its application to be certified to regulate rates as provided
in Section 76.910 of the Rate Regulation Rules;
(iii) except as set forth in Schedule VI hereto, no
franchising authority has notified the Company or any of its
Subsidiaries or any Seller that it has been certified and has adopted
regulations required to commence regulation as provided in Section
76.910(e)(2) of the Rate Regulation Rules;
(iv) except to the extent that a franchising authority or the
FCC regulates rates pursuant to the Rate Regulation Rules, such CATV
Systems may continue to charge their current rates in compliance with
the Rate Regulation Act and the Rate Regulation Rules;
(v) such CATV Systems are otherwise in material compliance
with the Rate Regulation Act and the Rate Regulation Rules applicable
to them;
(vi) no reduction of rates or refunds to subscribers is
required thereunder as of the date hereof; and
(vii) except as set forth on Schedule VI hereto on the date
hereof (or on the date of any such supplement to such Schedule pursuant
to Section 8.05(b)(iv)(J) hereof), such CATV Systems are not subject to
any complaint at the FCC by any franchising authority concerning rates
for cable programming services, and neither the Company nor any of its
Subsidiaries is aware of any threat of or basis for the filing of any
such complaint.
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7.20 Scheduled Acquisition Agreements. The Company has
heretofore delivered to the Administrative Agent and the other Agents a true and
complete copy of each Scheduled Acquisition Agreement (except the Eastern Cable
Acquisition Agreement) (including all modifications or supplements to each
thereof) and each of such Scheduled Acquisition Agreements (except the Eastern
Cable Acquisition Agreement) has been duly executed and delivered by each party
thereto and is in full force and effect.
Section 8. Covenants of the Company. The Company covenants and
agrees with the Lenders and the Administrative Agent that, so long as any
Commitment or Loan is outstanding and until payment in full of all amounts
payable by the Company hereunder:
8.01 Financial Statements Etc. The Company shall deliver to
the Administrative Agent (in sufficient copies for each Lender, to the extent
such items are prepared for public distribution or filing) and the other Agents:
(a) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of the
Company, consolidated statements of income, changes in partners'
capital and cash flows of the Company and its Subsidiaries (and,
separately stated, for the Company and its Restricted Subsidiaries) for
such period and for the period from the beginning of the respective
fiscal year to the end of such period, and the related consolidated
balance sheets of the Company and its Subsidiaries (and, separately
stated, for the Company and its Restricted Subsidiaries) as at the end
of such period, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding periods in the
preceding fiscal year (except that, in the case of balance sheets, such
comparison shall be to the last day of the prior fiscal year),
accompanied by a certificate of a Senior Officer, which certificate
shall state that said consolidated financial statements fairly present
the consolidated financial condition and results of operations of the
Company and its Subsidiaries (or the Company and its Restricted
Subsidiaries, as the case may be), in each case in accordance with
generally accepted accounting principles, consistently applied, as at
the end of, and for, such period (subject to normal year-end audit
adjustments), provided that the requirements of this Section 8.01(a)
with respect to financial statements of the Company and its
Subsidiaries may be satisfied by delivery by the Company (in accordance
with this Section 8.01(a)) of the Company's quarterly report filed on
Form 10-Q with the Securities and Exchange Commission;
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, consolidated statements of
income, changes in partners' capital and cash flows of the Company and
its Subsidiaries (and, separately stated, for the Company and its
Restricted Subsidiaries) for such fiscal year and the related
76
consolidated balance sheets of the Company and its Subsidiaries (and,
separately stated, for the Company and its Restricted Subsidiaries) as
at the end of such fiscal year, setting forth in each case in
comparative form the corresponding consolidated figures for the
preceding fiscal year, accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that said consolidated financial statements fairly
present the consolidated financial condition and results of operations
of the Company and its Subsidiaries (or the Company and its Restricted
Subsidiaries, as the case may be) as at the end of, and for, such
fiscal year in accordance with generally accepted accounting
principles, and a statement of such accountants to the effect that, in
making the examination necessary for their opinion, nothing came to
their attention that caused them to believe that the Company was not in
compliance with Sections 8.07, 8.08, 8.09 or 8.10 hereof as at the end
of such fiscal year, insofar as such Sections relate to accounting
matters in accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such fiscal year,
provided that the requirements of this Section 8.01(b) with respect to
financial statements of the Company and its Subsidiaries may be
satisfied by delivery by the Company (in accordance with this Section
8.01(b)) of the Company's annual report filed on Form 10-K with the
Securities and Exchange Commission;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Company shall have filed with the Securities and Exchange Commission
(or any governmental agency substituted therefor) or any national
securities exchange;
(d) promptly upon the mailing thereof to the partners of the
Company or FrontierVision generally, or to holders of Subordinated
Indebtedness generally, copies of all financial statements, reports and
proxy statements so mailed;
(e) as soon as possible, and in any event within ten days
after the Company knows or has reason to believe that any of the events
or conditions specified below with respect to any Plan or Multiemployer
Plan has occurred or exists, a statement signed by a Senior Officer
setting forth details respecting such event or condition and the
action, if any, that the Company or its ERISA Affiliate proposes to
take with respect thereto (and a copy of any report or notice required
to be filed with or given to the PBGC by the Company or an ERISA
Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section
4043(c) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which the PBGC has not by regulation
waived the requirement of Section 4043(a) of
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ERISA that it be notified within 30 days of the occurrence of
such event (provided that a failure to meet the minimum
funding standard of Section 412 of the Code or Section 302 of
ERISA, including, without limitation, the failure to make on
or before its due date a required installment under Section
412(m) of the Code or Section 302(e) of ERISA, shall be a
reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code); and any request
for a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of
a notice of intent to terminate any Plan or any action taken
by the Company or an ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Company or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by the Company
or any ERISA Affiliate of notice from a Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section
4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against the Company or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding is
not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if the Company or an ERISA
Affiliate fails to timely provide security to the Plan in
accordance with the provisions of said Sections;
(f) within 45 days after the end of each quarterly fiscal
period of the Company, a Quarterly Officer's Report as at the end of
such period;
(g) promptly after the Company knows or has reason to believe
that any Default has occurred, a notice of such Default describing the
same in reasonable
78
detail and, together with such notice or as soon thereafter as
possible, a description of the action that the Company has taken or
proposes to take with respect thereto; and
(h) from time to time such other information regarding the
financial condition, operations, business or prospects of the Company
or any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as any Lender or the Administrative Agent may
reasonably request.
The Company will furnish to the Administrative Agent and the other Agents, at
the time it furnishes each set of financial statements pursuant to paragraph (a)
or (b) above, a certificate of a Senior Officer (i) to the effect that no
Default has occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing the action
that the Company has taken or proposes to take with respect thereto) and (ii)
setting forth in reasonable detail the computations necessary to determine
whether the Company is in compliance with Sections 8.07(e), 8.07(f), 8.09 and
8.10 hereof, and a calculation of the Debt Ratio and Senior Debt Ratio, as of
the end of the respective quarterly fiscal period or fiscal year. The
Administrative Agent shall promptly, upon delivery by the Company, deliver to
each Lender the documents provided for in this Section 8.01.
8.02 Litigation. The Company will promptly give to the
Administrative Agent and the other Agents notice of all legal or arbitral
proceedings, and of all proceedings by or before any governmental or regulatory
authority or agency, and any material development in respect of such legal or
other proceedings, affecting the Company or any of its Subsidiaries or any of
their Franchises, except proceedings that, if adversely determined, could not
(either individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect. Without limiting the generality of the foregoing, the
Company will give to the Administrative Agent and the other Agents (i) notice of
the assertion of any Environmental Claim by any Person against, or with respect
to the activities of, the Company or any of its Subsidiaries and notice of any
alleged violation of or non-compliance with any Environmental Laws or any
permits, licenses or authorizations, other than any Environmental Claim or
alleged violation that, if adversely determined, could not (either individually
or in the aggregate) reasonably be expected to have a Material Adverse Effect
and (ii) copies of any notices received by the Company or any of its
Subsidiaries under any Franchise of a material default by the Company or
Subsidiary in the performance of its obligations thereunder.
79
8.03 Existence, Etc. The Company will, and will cause each of
its Restricted Subsidiaries (except in the case of clause (c) below which shall
apply to all Subsidiaries) to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this Section 8.03 shall prohibit any transaction expressly
permitted under Section 8.05 hereof);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
if failure to comply with such requirements could (either individually
or in the aggregate) have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles consistently applied; and
(f) permit representatives of any Lender or the Administrative
Agent, during normal business hours, to examine, copy and make extracts
from its books and records, to inspect any of its Properties, and to
discuss its business and affairs with its officers, all to the extent
reasonably requested by such Lender or the Administrative Agent (as the
case may be).
8.04 Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in the
amounts customarily maintained by such corporations, provided that the Company
will in any event maintain (with respect to itself and each of its Restricted
Subsidiaries) casualty insurance and insurance against claims for damages with
respect to defamation, libel, slander, privacy or other similar injury to person
or reputation (including misappropriation of personal likeness), in such amounts
as are then customary for Persons engaged in the same or similar business
similarly situated (such insurance to cover, with
80
respect to any business acquired pursuant to any Acquisition, claims arising out
of events occurring prior to the date of such acquisition), and shall designate
the Administrative Agent as loss payee with respect to any such casualty
insurance covering tangible Property.
8.05 Prohibition of Fundamental Changes.
(a) Mergers and Consolidations, Etc. The Company will not, nor
will it permit any of its Restricted Subsidiaries to, enter into any transaction
of merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution); provided that, subject to
Section 8.14 hereof, and so long as after giving effect thereto no Default shall
have occurred and be continuing hereunder, (i) any Subsidiary of the Company may
be merged into or consolidated with the Company or any Subsidiary Guarantor so
long as the Company or a Subsidiary Guarantor is the continuing or surviving
party, (ii) any Subsidiary of the Company may liquidate or dissolve into the
Company or any Subsidiary Guarantor and (iii) the Company and its Restricted
Subsidiaries may enter into the transactions permitted under clause (iv) of
paragraph (b) below.
(b) Acquisitions. The Company will not, nor will it permit any
of its Restricted Subsidiaries to, acquire any business or Property from or
capital stock of, or be a party to any acquisition of, any Person except:
(i) the Scheduled Acquisitions;
(ii) purchases of equipment, programming rights and other
Property to be sold or used in the ordinary course of business;
(iii) Capital Expenditures; and
(iv) the Company and its Wholly Owned Restricted Subsidiaries
may acquire any CATV System, and the related assets (any such CATV
System being hereinafter referred to as an "Acquired System"), whether
by way of an exchange of CATV Systems, the purchase of assets or stock,
by merger or consolidation or otherwise, so long as:
(A) the aggregate Purchase Price of all such
acquisitions (other than CATV Systems acquired pursuant to
Scheduled Acquisitions) shall not exceed the Permitted
Acquisition Amount and the aggregate Purchase Price of any
individual such acquisition (other than a CATV System acquired
pursuant to Scheduled Acquisitions) shall not exceed
$150,000,000;
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(B) such acquisition (if by purchase of stock or
other ownership interests) shall be effected in such manner so
that the acquired entity becomes a Wholly Owned Subsidiary of
the Company;
(C) no later than (1) thirty days prior to the
consummation of such acquisition (or such earlier date as
shall be five Business Days after the execution and delivery
thereof), the Company shall have delivered to the
Administrative Agent executed counterparts of the respective
Acquisition Agreement pursuant to which such acquisition is to
be consummated (and forms, to the extent agreed to, of any
other agreements, including any management, non-compete,
employment, option or other material agreements to be executed
in connection with the closing thereunder), any schedules to
such agreements or instruments and (promptly upon their
becoming available) all other material ancillary documents to
be executed or delivered in connection therewith, (2) promptly
following request therefor, copies of such other information
or documents relating to such acquisition as the
Administrative Agent, or the Majority Lenders (through the
Administrative Agent), shall have requested, and (3) promptly
following the consummation of such acquisition, certified
copies of the agreements, instruments and documents referred
to in the foregoing clause (1) as shall have been executed and
delivered in connection therewith;
(D) the agreements, instruments and other documents
referred to in the foregoing clause (C) shall, except to the
extent otherwise consented to by the Majority Lenders, provide
that:
(1) the entire amount of the consideration
payable by the Company and its Restricted
Subsidiaries in connection with such acquisition
(other than (x) customary post-closing adjustments,
escrow and purchase price holdback and indemnity
obligations, (y) Indebtedness incurred in connection
with such acquisition that is permitted under Section
8.07(f) hereof and (z) Other Equity Interests issued
to the relevant Seller or Sellers in connection with
such acquisition in accordance with Section 8.13
hereof) shall be payable on the date of such
acquisition,
(2) neither the Company nor any of its
Restricted Subsidiaries shall, in connection with
such acquisition, assume or remain liable in respect
of (x) any Indebtedness of the Seller or Sellers of
such Acquired System (or the entity owning such
Acquired System) except for Indebtedness permitted
under Section 8.07(f) hereof or (y) other
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obligations of the Seller or Sellers of such Acquired
System, except for obligations incurred by the
respective Seller in the ordinary course of business
in operating such CATV System and that are necessary
or desirable to the continued operation of such CATV
System (and, in the event such Acquired System (or
the entity owning such Acquired System) is obligated
in respect of any Indebtedness or other obligations
not permitted under the foregoing subclauses (x) or
(y), then concurrently with such acquisition any such
Indebtedness or other obligations shall be released
as to the assets or entity being so acquired) and
(3) all Property to be acquired in
connection with such acquisition (or that is owned by
the Seller of such Acquired System on the date of
such acquisition) shall be free and clear of any and
all Liens, except to the extent permitted by Section
8.06 hereof (and in the event any such Property is
subject to any Lien not permitted by this clause (3)
then concurrently with such acquisition such Lien
shall be released);
(E) to the extent applicable, the Company shall have
complied with the provisions of Sections 8.17 and 8.19 hereof,
including, without limitation, (1) delivery to the
Administrative Agent of the certificates evidencing the
capital stock or other ownership interests of any new
Restricted Subsidiary acquired pursuant to such acquisition,
accompanied by undated stock or other powers executed in blank
and (2) delivery to the Administrative Agent of the
agreements, instruments, opinions of counsel and other
documents required under Section 8.17 hereof;
(F) immediately prior to such acquisition and after
giving effect thereto, no Default shall have occurred or be
continuing;
(G) after giving effect to such acquisition the
Company shall be in compliance with Section 8.10 hereof (the
determination of such compliance to be calculated on a pro
forma basis), as at the end of and for the period of four
fiscal quarters most recently ended prior to the date of such
acquisition for which financial statements of the Company and
its Restricted Subsidiaries are available, under the
assumption that such acquisition shall have occurred, and any
Indebtedness in connection therewith shall have been incurred,
at the beginning of the applicable period, and under the
assumption that interest for such period had been equal to the
actual weighted average interest rate in effect for the Loans
hereunder on the date of such acquisition, and the
83
Company shall have delivered to the Administrative Agent a
certificate of a Senior Officer showing such calculations in
reasonable detail to demonstrate such compliance;
(H) in connection with such acquisition, if requested
by the Administrative Agent, or the Majority Lenders (through
the Administrative Agent), the Company shall have delivered to
the Administrative Agent an Acquisition Environmental Survey,
in form and substance reasonably satisfactory to the Majority
Lenders reflecting that the Acquired System will not be
subject to any material environmental liabilities;
(I) to the extent requested by the Administrative
Agent, or the Majority Lenders (through the Administrative
Agent), the Company shall have delivered evidence satisfactory
to the Administrative Agent and the Majority Lenders that the
Company and its Restricted Subsidiaries will not become
liable, contingently or otherwise, in respect of any material
tax or ERISA liability of the Seller of the Acquired System as
a result of such acquisition; and
(J) the Company shall have delivered to the
Administrative Agent (which shall promptly forward copies
thereof to each Lender) a revised Part A of Schedule III
hereto, and revised Schedules IV and VII hereto, such that
after giving effect to such acquisition, the representations
set forth in Sections 7.15(a), 7.17, 7.18, 7.19 and 7.20
hereof (assuming that each reference to the Effective Date
therein referred to the date such acquisition is consummated
(after giving effect thereto)) shall be true and complete as
of such date.
(c) Dispositions. The Company will not, nor will it permit any
of its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or a substantial
part of its business or Property, whether now owned or hereafter acquired
(including, without limitation, receivables and leasehold interests), but
excluding:
(i) obsolete or worn-out Property, tools or equipment no
longer used or useful in its business,
(ii) any equipment, programming rights or other Property sold
or disposed of in the ordinary course of business and on ordinary
business terms,
84
(iii) any such conveyance, sale, lease, transfer or other
disposition by any Restricted Subsidiary of the Company to the Company
or to any other Restricted Subsidiary of the Company, and
(iv) dispositions of one or more CATV Systems (whether for
cash or for Disposition Investments, and including dispositions in
exchange for other CATV Systems), so long as the aggregate fair market
value of the CATV Systems disposed of in all such dispositions shall
not exceed $150,000,000.
8.06 Limitation on Liens. The Company will not, nor will it
permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon any of its Property, whether now owned or hereafter
acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B
of Schedule II hereto, and Liens on cash and cash equivalents securing
obligations of the Company in respect of Interest Rate Protection
Agreements, so long as the aggregate fair market value of the cash and
cash equivalents subject to such Liens does not exceed $3,000,000;
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or the affected
Restricted Subsidiaries, as the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that
are being contested in good faith and by appropriate proceedings and
Liens securing judgments but only to the extent for an amount and for a
period not resulting in an Event of Default under Section 9(j) hereof;
(e) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, statutory obligations,
surety and appeal bonds, performance bonds (including, without
limitation, performance bonds required pursuant to the
85
terms of any Franchise) and other obligations of a like nature incurred
in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto that, in the aggregate, are not material in amount, and that do
not interfere with the ordinary conduct of the business of the Company
or any of its Restricted Subsidiaries with respect to any CATV System
or CATV Systems that in the aggregate provide service to more than 5%
of Subscribers of the Company and its Restricted Subsidiaries
(determined as at any date);
(h) Liens upon real and/or tangible personal Property acquired
after the date hereof (by purchase, construction or otherwise) by the
Company or any of its Restricted Subsidiaries, each of which Liens
either (A) existed on such Property before the time of its acquisition
and was not created in anticipation thereof or (B) was created solely
for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, the cost (including the cost of
construction) of such Property; provided that (i) no such Lien shall
extend to or cover any Property of the Company or such Restricted
Subsidiary other than the Property so acquired and improvements thereon
and (ii) the principal amount of Indebtedness secured by any such Lien
shall at no time exceed the fair market value (as determined in good
faith by a Senior Officer) of such Property at the time it was acquired
(by purchase, construction or otherwise); and
(i) Liens on the Investments permitted under Section 8.08(k).
8.07 Indebtedness. The Company will not, nor will it permit
any of its Restricted Subsidiaries to, create, incur or suffer to exist any
Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof and listed in
Part A of Schedule II hereto (excluding, however, following the making
of the initial Loans hereunder, Indebtedness to be repaid with the
proceeds of such Loans, as indicated on said Schedule II);
(c) Indebtedness of the Company and FrontierVision Capital in
respect of Subordinated Indebtedness in an aggregate original principal
amount not exceeding $200,000,000, and subordinated Guarantees of such
Subordinated Indebtedness by
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Restricted Subsidiaries of the Company pursuant to the Senior
Subordinated Debt Documents;
(d) Indebtedness of Restricted Subsidiaries of the Company to
the Company or to other Restricted Subsidiaries of the Company;
(e) Indebtedness of the Company and its Restricted
Subsidiaries in respect of letters of credit or performance bonds
required pursuant to the terms of Franchises or other agreements to
which the Company or any of its Restricted Subsidiaries may be parties,
so long as the aggregate amount thereof does not exceed $50,000,000 at
any one time outstanding; and
(f) additional Indebtedness of the Company and its Restricted
Subsidiaries (including, without limitation, Capital Lease Obligations
and other Indebtedness secured by Liens permitted under Sections
8.06(h) hereof) up to but not exceeding $25,000,000 at any one time
outstanding.
Anything in this Agreement to the contrary notwithstanding,
the Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly Guarantee any Indebtedness of FrontierVision Holdings or
FrontierVision Holdings Capital Corporation if, as a result thereof, the Company
or any of its Restricted Subsidiaries would become obligated under the Senior
Discount Debt Indenture to Guarantee the obligations of FrontierVision Holdings
and FrontierVision Holdings Capital Corporation in respect of the Senior
Discount Debt.
8.08 Investments. The Company will not, nor will it permit any
of its Restricted Subsidiaries to, make or permit to remain outstanding any
Investments except:
(a) Investments outstanding on the date hereof and identified
in Schedule III hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) escrow or deposit accounts established in connection with
the Scheduled Acquisitions or Subsequent Acquisitions, so long as the
funds held in such accounts are held in the form of cash or Permitted
Investments;
(e) Investments by the Company and its Restricted Subsidiaries
in the Company and its Restricted Subsidiaries;
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(f) Investments constituting Subsequent Acquisitions by the
Company and its Restricted Subsidiaries made in accordance with Section
8.05(b)(iv) hereof;
(g) Interest Rate Protection Agreements entered into in the
ordinary course of the Company's financial planning and not for
speculative purposes (including Interest Rate Protection Agreements
entered into in accordance with Section 8.12 hereof);
(h) loans to employees of the Company or any of its Restricted
Subsidiaries or Affiliates in an aggregate amount (as to all such
employees) up to $5,000,000 at any one time outstanding;
(i) Investments (collectively, "Disposition Investments")
received in connection with any Disposition by the Company or any of
its Restricted Subsidiaries permitted hereunder and representing all or
a part of the non-cash portion of the consideration received by the
Company and its Restricted Subsidiaries pursuant to such Disposition,
provided that (i) the aggregate amount of Disposition Investments
received in connection with any single Disposition shall not exceed 25%
of the fair market value of the consideration received in connection
therewith, and the aggregate amount of Disposition Investments received
in connection with all Dispositions shall not exceed $75,000,000 and
(ii) the respective certificates and notes evidencing such Disposition
Investments are delivered in pledge to the Administrative Agent
pursuant to the Security Agreement;
(j) the Guarantees referred to in Section 8.07(c) hereof; and
(k) additional Investments (including, without limitation,
Investments in Unrestricted Subsidiaries) in an aggregate amount up to
but not exceeding $25,000,000 at any one time outstanding or, following
the date upon which the Debt Ratio shall have been less than 5.00 to 1
as at the last day of two or more consecutive fiscal quarters in an
aggregate amount up to but not exceeding $50,000,000, it being
understood that the Company shall not be required to pledge any of such
Investments as collateral security pursuant to the Security Documents.
For purposes of the foregoing clause (k), the aggregate amount
of an Investment at any one time shall be deemed to be equal to (A) the
aggregate amount of cash, together with the aggregate fair market value of
property, loaned, advanced, contributed, transferred or otherwise invested that
gives rise to such Investment minus (B) the aggregate amount of dividends,
distributions or other payments received in cash in respect of such Investment,
provided that the amount of an Investment shall not in any event be reduced by
reason of any write-off of such Investment.
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8.09 Restricted Payments. The Company will not, nor will it
permit any of its Restricted Subsidiaries to, make any Restricted Payment at any
time, except that so long as at the time thereof and after giving effect thereto
no Default shall have occurred and be continuing, the Company may:
(a) make Restricted Payments to its Partners during any fiscal
quarter in an amount equal to the Tax Payment Amount for the
immediately preceding fiscal quarter, so long as (i) at least fifteen
days prior to making any such Restricted Payment, the Company shall
have delivered to the Administrative Agent and the other Agents
notification of the amount of the Restricted Payment to be made during
such fiscal quarter and (ii) on or prior to April 12 of each fiscal
year the Company shall have delivered to the Administrative Agent and
the other Agents a statement from the Company's independent certified
public accountants setting forth a detailed calculation of the
aggregate Tax Payment Amount for the prior fiscal year and showing the
amount of each individual Restricted Payment made during such fiscal
year and all prior Restricted Payments made pursuant to this Section
8.09;
(b) after the earlier of (i) December 31, 2001 or (ii) the
date upon which the Debt Ratio shall have been less than 5.00 to 1 as
at the last day of two or more consecutive fiscal quarters (except for
periods after the Debt Ratio shall be greater than 5.00 to 1, unless
the Debt Ratio shall again be less than 5.00 to 1 as at the last day of
two or more consecutive fiscal quarters), the Company may make
Restricted Payments in an amount necessary to enable FrontierVision
Holdings and FrontierVision Holdings Capital Corporation to make
payments in respect of the Senior Discount Debt;
(c) make Restricted Payments to its Partners in cash to enable
FrontierVision Holdings to pay out-of-pocket accounting fees, legal
fees and the like in an aggregate amount not exceeding $200,000 during
any fiscal year; and
(d) make Restricted Payments to its Partners in cash in an
aggregate amount up to but not exceeding $25,000,000 during the term of
this Agreement, provided that to the extent the aggregate amount of
such Restricted Payments shall exceed $5,000,000, such Restricted
Payment shall not be made unless the Debt Ratio as at the last day of
the two most recent fiscal quarters shall have been less than 5.00 to
1,
it being understood that the amount of Restricted Payments that may be made
pursuant to any of the above clauses (a) through (d) shall be exclusive of the
amount of Restricted Payments that may be made pursuant to any of the other of
the above clauses (a) through (d). Nothing herein shall be deemed to prohibit
the payment of dividends, distributions or other amounts
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by any Restricted Subsidiary of the Company to the Company or to any other
Restricted Subsidiary of the Company.
8.10 Certain Financial Covenants.
(a) Senior Debt Ratio. The Company will not permit the Senior
Debt Ratio (determined in accordance with Section 8.10(e) hereof) to exceed the
following respective ratios at any time during the following respective periods:
Period Ratio
From the Effective Date
through and including
June 29, 1999 5.50 to 1
From June 30, 1999
through and including
December 30, 1999 5.25 to 1
From December 31, 1999
through and including
December 30, 2000 5.00 to 1
From December 31, 2000
through and including
December 30, 2001 4.50 to 1
From December 31, 2001
and at all times
thereafter 4.00 to 1
(b) Debt Ratio. The Company will not permit the Debt Ratio
(determined in accordance with Section 8.10(e) hereof) to exceed the following
respective ratios at any time during the following respective periods:
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Period Ratio
From the Effective Date
through and including
June 29, 1999 6.75 to 1
From June 30, 1999
through and including
December 30, 1999 6.50 to 1
From December 31, 1999
through and including
December 30, 2000 6.25 to 1
From December 31, 2000
through and including
December 30, 2001 5.50 to 1
From December 31, 2001
and at all times
thereafter 5.00 to 1
(c) Interest Coverage Ratio. The Company will not permit the
Interest Coverage Ratio (determined in accordance with Section 8.10(e) hereof)
to be less than the following respective ratios at any time during the following
respective periods:
Period Ratio
From the Effective Date
through and including
June 29, 1999 1.50 to 1
From June 30, 1999
through and including
December 30, 1999 1.75 to 1
From December 31, 1999
and at all times
thereafter 2.00 to 1
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(d) Fixed Charges Ratio. The Company will not permit the Fixed
Charges Ratio (determined in accordance with Section 8.10(e) hereof) to be less
than the following respective ratios at any time during the following respective
periods:
Period Ratio
From the Effective Date
through and including
December 31, 1998 1.00 to 1
From January 1, 1999
and at all times
thereafter 1.05 to 1
(e) Computations of Ratios. Solely for purposes of computing
the Senior Debt Ratio, Debt Ratio, Interest Coverage Ratio and Fixed Charges
Ratio for purposes of this Section 8.10:
(i) Indebtedness shall be deemed to exclude obligations in
respect of undrawn letters of credit, performance bonds and similar
instruments issued or accepted by banks and other financial
institutions in the ordinary course of business of the Company and its
Restricted Subsidiaries; and
(ii) at any time when proceeds of a Disposition are held by
the Administrative Agent in the Collateral Account, the amount of Loans
outstanding hereunder at such time shall be deemed to be net of the
balance of the cash and investments held in the Collateral Account at
such time.
8.11 [INTENTIONALLY OMITTED]
8.12 Interest Rate Protection Agreements. The Company will
within 90 days of the Effective Date (to the extent necessary after taking into
account the Interest Rate Protection Agreements entered into pursuant to the
requirements of Section 8.12 of the Existing Credit Agreement) enter into, and
thereafter maintain in full force and effect, one or more Interest Rate
Protection Agreements with one or more of the Lenders (and/or with a bank or
other financial institution having capital, surplus and undivided profits of at
least $500,000,000), as to a notional principal amount that (taken together with
all existing Interest Rate Protection Agreements and the fixed interest rate on
the Subordinated Indebtedness) will equal 50% of the then outstanding aggregate
principal amount of all Indebtedness of the Company and its Subsidiaries; such
Interest Rate Protection Agreements shall cover the three-year period commencing
on the Effective Date, so that the Company effectively limits,
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in a manner satisfactory to the Majority Lenders, the weighted interest rate of
the Loans to an interest rate satisfactory to the Majority Lenders.
8.13 Subordinated Indebtedness; Other Equity Interests.
(a) The Company may, after the date of this Agreement, issue
limited partnership interests:
(1) to one or more Sellers as all or part of the Purchase
Price of CATV Systems acquired in Subsequent Acquisitions;
(2) to officers and employees of the Company and its
Restricted Subsidiaries; and
(3) to other Persons for cash,
in each case provided that (i) the agreements, instruments and other documents
evidencing or representing such limited partnership interests expressly provide
that no payments of any Restricted Payments in respect thereof may be made at
any time prior to the payment in full in cash of the principal of and interest
on, and all other amounts owing in respect of, the Loans and other obligations
hereunder and under the other Loan Documents, (ii) none of the Company's
Restricted Subsidiaries is contingently or otherwise obligated in respect
thereof, (iii) such limited partnership interests shall be pledged to the
Administrative Agent for the benefit of the Lenders to secure the obligations of
the Company hereunder and under the other Basic Documents and to secure the Pari
Passu Obligations and (iv) both immediately prior thereto and after giving
effect to the issuance thereof no Default shall have occurred and be continuing
(and the Administrative Agent shall have received a certificate of a Senior
Officer to such effect), all on terms and conditions, and pursuant to
documentation, in form and substance satisfactory the Majority Lenders.
(b) The Company will not, nor will it permit any of its
Restricted Subsidiaries to, purchase, redeem, retire or otherwise acquire for
value, or set apart any money for a sinking, defeasance or other analogous fund
for the purchase, redemption, retirement or other acquisition of, or make any
voluntary payment or prepayment of the principal of or interest on, or any other
amount owing in respect of, any Subordinated Indebtedness, except for regularly
scheduled payments or prepayments of principal and interest in respect thereof
required pursuant to the instruments evidencing such Subordinated Indebtedness.
The Company will not, nor will it permit any of its Restricted Subsidiaries to,
purchase, redeem, retire or otherwise acquire for value, or set apart any money
for a sinking, defeasance or other analogous fund for the purchase, redemption,
retirement or other acquisition of, or make any Restricted Payment or other
payment in respect of, any Other Equity Interest.
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(c) The Company will not, nor will it permit any of its
Restricted Subsidiaries to, purchase, redeem, retire or otherwise acquire for
value, or set apart any money for a sinking, defeasance or other analogous fund
for the purchase, redemption, retirement or other acquisition of, or make any
voluntary payment or prepayment of the principal of or interest on, or any other
amount owing in respect of, any Senior Discount Debt, except for regularly
scheduled payments or prepayments of principal and interest in respect thereof
required pursuant to the instruments evidencing such Senior Discount Debt to the
extent as permitted under Section 8.09(b) hereof.
8.14 Lines of Business. The Company will not, nor will it
permit any of its Restricted Subsidiaries to, engage to any substantial extent
in any line or lines of business activity other than the business of owning and
operating CATV Systems and related businesses.
8.15 Transactions with Affiliates. Except as expressly
permitted by this Agreement, the Company will not, nor will it permit any of its
Restricted Subsidiaries to, directly or indirectly: (a) make any Investment in
an Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; (d) make any contribution towards, or
reimbursement for, any Federal income taxes payable by any Partner (or the
holders of any direct or indirect ownership interest in any Partner) in respect
of income of the Company; or (e) enter into any other transaction directly or
indirectly with or for the benefit of an Affiliate (including, without
limitation, Guarantees and assumptions of obligations of an Affiliate); provided
that, notwithstanding the foregoing:
(x) any Affiliate who is an individual may serve as a
director, officer or employee of the Company or any of its Restricted
Subsidiaries and receive reasonable compensation for his or her
services in such capacity,
(y) the Company and its Restricted Subsidiaries may enter into
transactions (other than extensions of credit by the Company or any of
its Restricted Subsidiaries to an Affiliate) providing for the leasing
of Property, the rendering or receipt of services (other than
investment banking services, unless the advisory committee or board of
directors, as the case may be, of FrontierVision LP shall have approved
such services) or the purchase or sale of equipment, programming
rights, advertising time and other Property in the ordinary course of
business if the monetary or business consideration arising therefrom
would be substantially as advantageous to the Company and its
Restricted Subsidiaries as the monetary or business consideration that
would obtain in a comparable transaction with a Person not an Affiliate
and
(z) any Lender (and any Control Affiliate of a Lender) may
extend credit to the Company and its Restricted Subsidiaries, enter
into Interest Rate Protection Agreements with the Company and its
Restricted Subsidiaries or provide other services (other than
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investment banking services, which shall be governed by clause (y)
above) to the Company and its Restricted Subsidiaries in the ordinary
course of business of such Lender (and such Control Affiliate), in each
case to the extent that the Company and the respective Restricted
Subsidiary are permitted to engage in such transaction hereunder and
the monetary or business consideration arising therefrom would be
substantially as advantageous to the Company and its Restricted
Subsidiaries as the monetary or business consideration that would
obtain in a comparable transaction with a Person not an Affiliate.
8.16 Use of Proceeds. The Company will use the proceeds of the
Loans hereunder (i) to finance the Scheduled Acquisitions and Subsequent
Acquisitions, (ii) to finance payments of fees, commissions and expenses in
connection with the Acquisitions, (iii) to pay the principal of and interest on,
and all other amounts owing in respect of the UVC Notes on the Effective Date
and (iv) for general business purposes (in compliance with all applicable legal
and regulatory requirements, including, without limitation, Regulations G, T, U
and X and the Securities Act of 1933 and the Securities Exchange Act of 1934 and
the regulations thereunder); provided that (i) any borrowing of Revolving Credit
Loans hereunder that would constitute a utilization of any Reserved Commitment
Amount shall be applied solely to make Subsequent Acquisitions permitted under
Section 8.05(b)(iv) hereof, or to make prepayments of Loans under Section
2.09(d)(y)(B) hereof and (ii) neither the Administrative Agent nor any Lender
shall have any responsibility as to the use of any of the proceeds of any Loans
hereunder.
8.17 Certain Obligations Respecting Restricted Subsidiaries.
(a) Subsidiary Guarantors. In the event that the Company or
any of its Restricted Subsidiaries shall form or acquire any Subsidiary after
the Effective Date (after obtaining any necessary consent of the Lenders), then
(unless such new Subsidiary is an Unrestricted Subsidiary) the Company shall
cause, and shall cause its Restricted Subsidiaries to cause, such Subsidiary to:
(i) execute and deliver to the Administrative Agent a
Subsidiary Guarantee Agreement in the form of Exhibit F hereto (and,
thereby, to become a "Subsidiary Guarantor", and an "Obligor" hereunder
and a "Securing Party" under the Security Agreement);
(ii) deliver the shares of its stock accompanied by undated
stock powers executed in blank to the Administrative Agent, and to take
other such action, to the extent required under Section 8.19 hereof
(including, without limitation, executing and delivering such Uniform
Commercial Code financing statements and Mortgages covering the
Property owned or leased by such Restricted Subsidiary), as shall be
necessary to create and perfect valid and enforceable first priority
Liens (other than perfection of
95
security interests in fixtures (under and as defined in the Uniform
Commercial Code) and Motor Vehicles (under and as defined in the
Security Agreement) and subject to Liens permitted under Section 8.06
hereof) on substantially all of the Property of such new Subsidiary as
collateral security for the obligations of such new Subsidiary under
the Subsidiary Guarantee Agreement, and
(iii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by each Credit Party pursuant to Section 6.01 hereof on
the Effective Date or as the Administrative Agent shall have reasonably
requested.
(b) Ownership of Subsidiaries. The Company will, and will
cause each of its Restricted Subsidiaries to, take such action from time to time
as shall be necessary to ensure that each of its Restricted Subsidiaries is a
Wholly Owned Subsidiary. In the event that any additional shares of stock or
other ownership interests shall be issued by any Restricted Subsidiary, the
Company agrees forthwith to deliver to the Administrative Agent pursuant to the
Security Agreement the certificates evidencing such shares of stock or other
ownership interests, accompanied by undated stock or other powers executed in
blank and to take such other action as the Administrative Agent shall request to
perfect the security interest created therein pursuant to the Security
Agreement.
(c) Certain Restrictions. Other than the Senior Subordinated
Debt Documents, the Company will not permit any of its Restricted Subsidiaries
to enter into, after the date hereof, any indenture, agreement, instrument or
other arrangement that, directly or indirectly, prohibits or restrains, or has
the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the incurrence or payment of Indebtedness, the granting of
Liens, the declaration or payment of dividends, the making of loans, advances or
Investments or the sale, assignment, transfer or other disposition of Property.
(d) FrontierVision Capital. FrontierVision Capital will own no
Property, will have no Indebtedness (other than its Guarantee of Indebtedness
hereunder and Indebtedness in respect of the Subordinated Indebtedness), will
have no operations (other than de minimis operations incidental to its
activities in connection with the foregoing) and, in furtherance of the
foregoing, will not make any expenditures or incur any liabilities other than
those consistent with and reasonably necessary in the conduct of its business as
contemplated by this Section 8.17(d).
8.18 Modifications of Certain Documents. The Company will not
consent to any modification, supplement or waiver of any of the
provisions of
(i) any Senior Subordinated Debt Document or any other
agreement, instrument or other document evidencing or relating to
Subordinated Indebtedness (other
96
than a supplement to the Senior Subordinated Debt Indenture executed in
connection with a subordinated Guarantee of Subordinated Indebtedness
by Restricted Subsidiaries of the Company) or any Senior Discount Debt
Document,
(ii) any Scheduled Acquisition Agreement either to increase
the aggregate consideration payable by the Company thereunder or any
other provision of such Agreements (or of any agreement executed in
connection therewith) to the extent the same would materially adversely
affect the Lenders or the Administrative Agent (or the rights of the
Lenders or the Administrative Agent under any of the Loan Documents),
or
(iii) the Partnership Agreement or, following the execution
and delivery thereof, any Acquisition Agreement for any Subsequent
Acquisition (or any agreements executed in connection with any
Subsequent Acquisition) to the extent the same would materially
adversely affect the Lenders or the Administrative Agent (or the rights
of the Lenders or the Administrative Agent under any of the Loan
Documents),
without in each case, the prior consent of the Administrative Agent (with the
approval of the Majority Lenders).
8.19 Certain Obligations Respecting the Collateral.
(a) The Company will from time to time use reasonable efforts
to obtain consents of municipal franchising authorities necessary to create and
perfect a valid and enforceable first priority Lien on the Franchises from time
to time held by the Company and its Restricted Subsidiaries, so that to the
maximum extent practicable the Lien of the Administrative Agent created therein
pursuant to the Security Agreement will be such a valid and enforceable first
priority Lien on all of the Franchises (other than Excluded Franchises) of the
Company and its Restricted Subsidiaries.
(b) In the event that after the Effective Date, the Company or
any of its Restricted Subsidiaries shall acquire any real property interests,
whether owned or leased (other than an Excluded Real Property), the Company
will, and will cause such Restricted Subsidiary to, promptly (and in any event
within 30 days of the acquisition thereof) execute and deliver to the
Administrative Agent a Mortgage (in recordable form and in such number of copies
as the Administrative Agent shall have requested) covering such Property,
together with any necessary consents to such Mortgages by the respective
lessors, to the extent that the respective leasehold property shall be material
and the Administrative Agent or the Majority Lenders shall have requested the
Company to obtain such consents.
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Section 9. Events of Default. If one or more of the following
events (herein called "Events of Default") shall occur and be continuing:
(a) The Company shall default in the payment when due (whether
at stated maturity or upon mandatory or optional prepayment) of any
principal of or interest on any Loan, any fee or any other amount
payable by it hereunder or under any other Loan Document; or
(b) The Company or any of its Restricted Subsidiaries shall
default in the payment when due of any principal of or interest on any
of its other Indebtedness aggregating $5,000,000 or more; or any event
specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness shall occur if the
effect of such event is to cause, or (with the giving of any notice or
the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset
to a level so that securities evidencing such Indebtedness trade at a
level specified in relation to the par value thereof; or the Company
shall default in the payment when due of any amount aggregating
$500,000 or more under any Interest Rate Protection Agreement; or any
event specified in any Interest Rate Protection Agreement shall occur
if the effect of such event is to cause, or (with the giving of any
notice or the lapse of time or both) to permit, termination or
liquidation payment or payments aggregating $5,000,000 or more to
become due; or
(c) FrontierVision Holdings or FrontierVision Holdings Capital
Corporation shall default in the payment when due of any principal of
or interest on any note evidencing Senior Discount Debt; or any event
specified in any note, agreement, indenture or other document
evidencing or relating to such Senior Discount Debt shall occur if the
effect of such event is to cause, or (with the giving of any notice or
the lapse of time or both) to permit the holder or holders of the notes
evidencing such Senior Discount Debt (or a trustee or agent on behalf
of such holder or holders) to cause, such notes to become due, or to be
prepaid in full (whether by redemption, purchase, offer to purchase or
otherwise), prior to their stated maturity; or
(d) Any representation, warranty or certification made or
deemed made herein or in any other Loan Document (or in any
modification or supplement hereto or thereto) by any Obligor, or any
certificate furnished to any Lender or the Administrative Agent
pursuant to the provisions hereof or thereof, shall prove to have been
98
false or misleading as of the time made or furnished in any material
respect; or any representation or warranty made in any of the Scheduled
Acquisition Agreements shall prove to have been false or misleading as
of the time made or furnished in any material respect that could
reasonably be expected to result in a Material Adverse Effect; or
(e) Any of the following shall occur: (i) the Company shall
default in the performance of any of its obligations under any of
Sections 8.01(g), 8.05, 8.06, 8.07, 8.08, 8.09, 8.10, 8.12, 8.13, 8.15,
8.17 or 8.18 hereof; (ii) any Securing Party shall default in the
performance of any of its obligations under Section 5.02 of the
Security Agreement; (iii) any Partner Pledgor shall default in the
performance of its obligations under Section 5.02 of the Partner Pledge
Agreement; (iv) any Stock Pledgor shall default in the performance of
its obligations under Section 4.02 of the Stock Pledge Agreement; or
(v) the Company shall default in the performance of its obligations
hereunder, or any Obligor shall default in the performance of its
obligations under any other Loan Document to which it is a party, and
such default shall continue unremedied for a period of thirty or more
days after notice thereof to the Company by the Administrative Agent or
any Lender (through the Administrative Agent); or
(f) The Company or any of its Restricted Subsidiaries, or any
of its General Partners, shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(g) The Company or any of its Restricted Subsidiaries, or any
of its General Partners, shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial
part of its Property, (ii) make a general assignment for the benefit of
its creditors, (iii) commence a voluntary case under the Bankruptcy
Code, (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment
of debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(h) A proceeding or case shall be commenced, without the
application or consent of the Company or any of its Restricted
Subsidiaries, or any of its General Partners, in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment of its
debts, (ii) the appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of the Company, any such Restricted
Subsidiary or General Partners (as the case may be) or of all or any
substantial part of its Property or (iii) similar relief in respect of
the Company, any such Restricted Subsidiary or General Partner (as the
case may be) under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and
such proceeding or case shall continue undismissed, or an order,
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judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or more
days; or an order for relief against the Company, any such Restricted
Subsidiary or General Partner shall be entered in an involuntary case
under the Bankruptcy Code; or
(i) The Company or any of its General Partners shall be
terminated, dissolved or liquidated (as a matter of law or otherwise)
or proceedings shall be commenced by any Person (including the Company
or any such General Partner) seeking the termination, dissolution or
liquidation of the Company or General Partner; or
(j) A final judgment or judgments for the payment of money of
$5,000,000 or more in the aggregate (exclusive of judgment amounts
fully covered by insurance where the insurer has admitted liability in
respect of such judgment) or of $12,000,000 or more in the aggregate
(regardless of insurance coverage) shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against the Company or any of its Subsidiaries, or any of its General
Partners, and the same shall not be discharged (or provision shall not
be made for such discharge), or a stay of execution thereof shall not
be procured, within 30 days from the date of entry thereof and the
Company, the relevant Subsidiary or General Partner (as the case may
be) shall not, within said period of 30 days, or such longer period
during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such
appeal; or
(k) An event or condition specified in Section 8.01(e) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan
and, as a result of such event or condition, together with all other
such events or conditions, the Company or any ERISA Affiliate shall
incur or in the opinion of the Majority Lenders shall be reasonably
likely to incur a liability to a Plan, a Multiemployer Plan or the PBGC
(or any combination of the foregoing) that, in the determination of the
Majority Lenders, would (either individually or in the aggregate) have
a Material Adverse Effect; or
(l) A reasonable basis shall exist for the assertion against
the Company or any of its Subsidiaries, or any predecessor in interest
of the Company or any of its Subsidiaries or Affiliates, of (or there
shall have been asserted against the Company or any of its
Subsidiaries) an Environmental Claim that, in the judgment of the
Majority Lenders is reasonably likely to be determined adversely to the
Company or any of its Subsidiaries, and the amount thereof (either
individually or in the aggregate) is reasonably likely to have a
Material Adverse Effect (insofar as such amount is payable by the
Company or any of its Subsidiaries but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor); or
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(m) Any one or more of the following events shall occur and be
continuing:
(i) FrontierVision Holdings shall cease to
either (x) own partnership interests in the Company
representing at least 99.9% of the aggregate partnership
interests in the Company not constituting Other Equity
Interests or (y) be the sole general partner of the Company;
or at any time FrontierVision and holders of Other Equity
Interests shall cease to be the sole limited partners of the
Company, or FrontierVision LP shall cease to own, directly or
indirectly through one or more Wholly-Owned Subsidiaries, all
of the equity interests in FrontierVision Holdings; or
(ii) either James Vaughn or John S. Koo shall, for
any reason, cease to be actively involved in the day to day
management and operation of the Company and its Subsidiaries
(and Persons with equivalent knowledge and experience in the
cable television industry reasonably acceptable to the
Majority Lenders are not appointed to replace one or both of
the them within 90 days thereof); or
(iii) prior to a Qualified Public Offering, either
(x) the Initial Equityholders shall cease to own,
collectively, on a fully-diluted basis (in other words, giving
effect to the exercise of any warrants, options and conversion
and other rights), equity interests representing at least 51%
of the aggregate fair market value (or, if greater, the
aggregate liquidation value) of the equity interests of all
classes of FrontierVision LP or (y) James Vaughn or John S.
Koo shall sell, transfer, hypothecate or otherwise dispose of
more than 50% of their direct or indirect economic interest in
FrontierVision LP (other than any transfer to the spouse of
either of such individuals, to his immediate family members,
or to trusts for the benefit of such spouse or immediate
family members); or
(iv) after a Qualified Public Offering either (x) any
person or group (within the meaning of Rule 13d-5 under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") and Section 13(d) and 14(d) of the Exchange Act (other
than the Initial Equityholders) becomes, directly or
indirectly, in a single transaction or in a related series of
transactions by way of merger, consolidation or other business
combination or otherwise, the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) of more than 30% of the
equity interest of FrontierVision LP on a fully-diluted basis
(in other words, giving effect to the exercise of any
warrants, options and conversion and other rights) or (y)
James Vaughn or John S. Koo shall sell, transfer, hypothecate
or otherwise dispose of more than 50% of their direct or
indirect economic interest in FrontierVision LP (other than
any transfer to the spouse of either of such individuals, to
his
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immediate family members, or to trusts for the benefit of such
spouse or immediate family members); or
(n) Except for Franchises that cover in the aggregate fewer
than 5% of the Subscribers of the Company and its Restricted
Subsidiaries (determined as at the last day of the most recent fiscal
quarter for which a Quarterly Officers' Report shall have been
delivered), one or more Franchises relating to the CATV Systems of the
Company and its Restricted Subsidiaries shall be terminated or revoked
such that the Company or the respective Restricted Subsidiary is no
longer able to operate such Franchises and retain the revenue received
therefrom; or the Company or the respective Restricted Subsidiary or
the grantors of such Franchises shall fail to renew such Franchises at
the stated expiration thereof such that the Company or the respective
Restricted Subsidiary is no longer able to operate such Franchises and
retain the revenue received therefrom; or
(o) The Liens created by the Security Documents shall at any
time not constitute a valid Lien on substantially all of the collateral
intended to be covered thereby, or shall not constitute a perfected
Lien (or, with respect to any Properties acquired in any Acquisition,
shall not constitute a perfected Lien within five Business Days after
the consummated of such Acquisition) on substantially all of such
collateral, to the extent perfection by filing, registration,
recordation or possession is required herein or therein, on
substantially all of the Property of the Company and its Restricted
Subsidiaries as contemplated herein and in the other Loan Documents, in
favor of the Administrative Agent, free and clear of all other Liens
(other than Liens permitted under Section 8.06 hereof or under the
respective Security Documents) or, except for expiration in accordance
with its terms, any of the Security Documents shall for whatever reason
be terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by the Company;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
paragraph (g) or (h) of this Section 9 with respect to the Company or
FrontierVision, the Administrative Agent may and, upon request of the Majority
Lenders, will, by notice to the Company, terminate the Commitments and/or
declare the principal amount then outstanding of, and the accrued interest on,
the Loans and all other amounts payable by the Company hereunder (including,
without limitation, any amounts payable under Section 5.05 hereof) to be
forthwith due and payable, whereupon such amounts shall be immediately due and
payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Company; and (2) in the case of
the occurrence of an Event of Default referred to in paragraph (g) or (h) of
this Section 9 with respect to the Company or FrontierVision, the Commitments
shall automatically be terminated and the principal amount then outstanding of,
and the accrued interest on, the Loans and all other amounts payable by the
Company hereunder (including, without limitation, any amounts payable under
Section 5.05 hereof) shall
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automatically become immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by the Company.
Section 10. The Agents.
10.01 Appointment, Powers and Immunities. Each Lender hereby
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the other Loan Documents with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and of the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 10.05 and the first sentence of Section 10.06 hereof
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be
a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement
or in any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any other Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or any other document referred to
or provided for herein or therein or for any failure by the Company or
any other Person to perform any of its obligations hereunder or
thereunder;
(c) shall not, except to the extent expressly instructed by
the Majority Lenders with respect to collateral security under the
Security Documents, be required to initiate or conduct any litigation
or collection proceedings hereunder or under any other Loan Document;
and
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other Loan Document or under
any other document or instrument referred to or provided for herein or
therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
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10.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including, without limitation, any thereof by telephone,
telecopy, telegram or cable) reasonably believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Administrative Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or thereunder in accordance with instructions
given by the Majority Lenders or, if provided herein, in accordance with the
instructions given by the Majority Revolving Credit Lenders, the Majority
Facility A Term Loan Lenders, the Majority Facility B Term Loan Lenders, the
Majority Incremental Facility Lenders of a Series, or all of the Lenders as is
required in such circumstance, and such instructions of such Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders.
10.03 Defaults. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or the Company specifying
such Default and stating that such notice is a "Notice of Default". In the event
that the Administrative Agent receives such a notice of the occurrence of a
Default, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall (subject to Section 10.07 hereof) take
such action with respect to such Default as shall be directed by the Majority
Lenders or, if provided herein, the Majority Revolving Credit Lenders, the
Majority Facility A Term Loan Lenders, the Majority Facility B Term Loan Lenders
or the Majority Incremental Facility Lenders of a Series, provided that, unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable in the best interest of the Lenders except to the extent that this
Agreement expressly requires that such action be taken, or not be taken, only
with the consent or upon the authorization of the Majority Lenders, the Majority
Revolving Credit Lenders, the Majority Facility A Term Loan Lenders, the
Majority Facility B Term Loan Lenders, the Majority Incremental Facility Lenders
of a Series, or all of the Lenders.
10.04 Rights as a Lender. With respect to its Commitments and
the Loans made by it, Chase (and any successor acting as Administrative Agent)
in its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. Chase (and any successor acting as Administrative Agent)
and its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other
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business with the Company (and any of its Subsidiaries or Affiliates) as if it
were not acting as the Administrative Agent, and Chase (and any such successor)
and its affiliates may accept fees and other consideration from the Company for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
10.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 11.03 hereof,
but without limiting the obligations of the Company under said Section 11.03)
ratably in accordance with the aggregate principal amount of the Loans held by
the Lenders (or, if no Loans are at the time outstanding, ratably in accordance
with their respective Commitments), for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against the Administrative Agent (including by any Lender)
arising out of or by reason of any investigation in any way relating to or
arising out of this Agreement or any other Loan Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and
expenses that the Company is obligated to pay under Section 11.03 hereof, but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Administrative Agent.
10.06 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and its Subsidiaries and decision to enter into this Agreement and that
it will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or under any other Loan
Document. The Administrative Agent shall not be required to keep itself informed
as to the performance or observance by the Company of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the Properties or books of the Company or any of
its Subsidiaries. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or under the Security Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of the Company or any of its Subsidiaries (or any of their
affiliates) that may come into the possession of the Administrative Agent or any
of its affiliates.
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10.07 Failure to Act. Except for action expressly required of
the Administrative Agent hereunder and under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 10.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
10.08 Resignation or Removal of Administrative Agent. Subject
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Company, and the Administrative Agent may be
removed at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right (after
consultation with the Company) to appoint a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, that shall be a bank that has an office in New York, New
York with a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 10 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
10.09 Consents under Other Loan Documents. Except as otherwise
provided in Section 11.04 hereof with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Majority Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the Loan Documents, provided that, without the prior consent of each Lender, the
Administrative Agent shall not (except as provided herein or in the Security
Documents) release any collateral or otherwise terminate any Lien under any
Security Document providing for collateral security, agree to additional
obligations being secured by such collateral security (unless the Lien for such
additional obligations shall be junior to the Lien in favor of the other
obligations secured by such Security Document, in which event the Administrative
Agent may consent to such junior Lien provided that it obtains the consent of
the Majority Lenders thereto), alter the relative priorities of the obligations
entitled to the benefits of the Liens created under the Security Documents or
release any guarantor under any Security Document from its guarantee obligations
thereunder, except that no such consent shall be required, and the
Administrative Agent
106
is hereby authorized (and, the Administrative Agent hereby agrees with the
Company) to, release any Lien covering Property (and release any such guarantor)
that is the subject of either a disposition of Property permitted hereunder or a
disposition to which the Majority Lenders have consented.
10.10 The Syndication Agent and Documentation Agent. Except as
expressly provided herein, neither the Syndication Agent nor the Documentation
Agent shall have any rights or obligations under this Agreement or any of the
other Loan Documents except (in the case of the Documentation Agent) in its
capacity as a "Lender" hereunder.
10.11 Control Affiliates of Lenders. Each Lender hereby agrees
with the Administrative Agent that, to the extent any of such Lender's Control
Affiliates shall be entitled to the benefits of any of the collateral security
or guaranties provided pursuant to any of the Security Documents, such Lender
will cause such Control Affiliate to perform and be bound by the provisions of
this Section 10 as if such Control Affiliate constituted a Lender hereunder and
had appointed the Administrative Agent as its agent for purposes of the Security
Documents; in taking any action hereunder at the instruction or authorization of
any Lender (including any such action taken at the instruction or authorization
of the Majority Lenders), the Administrative Agent shall be entitled to
conclusively presume that the instruction or authorization of a Lender
constitutes a like instruction or authorization of each Control Affiliate of
such Lender entitled to the benefits of the Security Documents.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the Administrative
Agent or any Lender to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
11.02 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at 1777 South Harrison Street,
Suite P-200, Denver, Colorado 80210, attention of John S. Koo, Senior
Vice President and Chief Financial Officer (Telecopy No. 303-757-6105)
with a copy to Edwards & Angell, 101 Federal Street, Boston,
Massachusetts 02110, attention of Stephen O.
Meredith, Esq. (Telecopy No. 617-439-4170);
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(b) if to the Administrative Agent, to The Chase Manhattan
Bank, 1 Chase Manhattan Plaza, 8th Floor, New York, New York 10081,
attention Loan and Agency Services Group (Telecopy No. 212-552-5658),
with a copy to The Chase Manhattan Bank, 270 Park Avenue, New York, New
York 10017, Attention of Thomas G. Malone and David G. Staples
(Telecopy No. 212-270-1848 or 212-270-4584); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
11.03 Expenses, Etc. The Company agrees to pay or reimburse
each of the Lenders and the Administrative Agent for: (a) all reasonable
out-of-pocket costs and expenses of the Agents (including, without limitation,
the reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy, special New
York counsel to Chase) in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement and the other Loan Documents and the
making of the Loans hereunder and (ii) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of this Agreement or any
of the other Loan Documents (whether or not consummated); (b) all reasonable
out-of-pocket costs and expenses of the Lenders and the Administrative Agent
(including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (i) any Default and any enforcement or collection
proceedings resulting therefrom, including, without limitation, all manner of
participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section
11.03; (c) all transfer, stamp, documentary or other similar taxes, assessments
or charges levied by any governmental or revenue authority in respect of this
Agreement or any of the other Loan Documents or any other document referred to
herein or therein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection of
any security interest contemplated by any Security Document or any other
document referred to therein; and (d) all costs, expenses and other charges in
respect of title insurance procured with respect to the Liens created pursuant
to the Mortgages.
The Company hereby agrees to indemnify the Administrative
Agent, the Syndication Agent and each Lender and their respective directors,
officers, employees, attorneys and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages or expenses incurred
by any of them (including, without limitation, any and all losses,
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liabilities, claims, damages or expenses incurred by the Administrative Agent to
any Lender, whether or not the Administrative Agent or any Lender is a party
thereto) arising out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation or other
proceedings) relating to the Loans hereunder or any actual or proposed use by
the Company or any of its Subsidiaries of the proceeds of any of the Loans
hereunder, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims, damages
or expenses incurred by reason of the gross negligence or willful misconduct of
the Person to be indemnified). Without limiting the generality of the foregoing,
the Company will indemnify the Administrative Agent and each Lender from, and
hold the Administrative Agent and each Lender harmless against, any losses,
liabilities, claims, damages or expenses described in the preceding sentence
(including any Lien filed against any Property covered by the Mortgages or any
part of the Mortgage Estate thereunder in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
damage or expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising under any Environmental Law
as a result of the past, present or future operations of the Company or any of
its Subsidiaries (or any predecessor in interest to the Company or any of its
Subsidiaries), or the past, present or future condition of any site or facility
owned, operated or leased at any time by the Company or any of its Subsidiaries
(or any such predecessor in interest), or any Release or threatened Release of
any Hazardous Materials at or from any such site or facility, excluding any such
Release or threatened Release that shall occur during any period when the
Administrative Agent or any Lender shall be in possession of any such site or
facility following the exercise by the Administrative Agent or any Lender of any
of its rights and remedies hereunder or under any of the Security Documents, but
including any such Release or threatened Release occurring during such period
that is a continuation of conditions previously in existence, or of practices
employed by the Company and its Subsidiaries, at such site or facility.
11.04 Amendments, Etc. Except as otherwise expressly provided
in this Agreement, any provision of this Agreement may be modified or
supplemented only by an instrument in writing signed by the Company and the
Majority Lenders, or by the Company and the Administrative Agent acting with the
consent of the Majority Lenders, and any provision of this Agreement may be
waived by the Majority Lenders or by the Administrative Agent acting with the
consent of the Majority Lenders; provided that: (a) no modification, supplement
or waiver shall, unless by an instrument signed by all of the Lenders or by the
Administrative Agent acting with the consent of all of the Lenders: (i)
increase, or extend the term of any of the Commitments, or extend the time or
waive any requirement for the reduction or termination of any of the
Commitments, (ii) extend the date fixed for the scheduled payment of principal
of or interest on any Loan or any fee hereunder, (iii) reduce the amount of any
such payment of principal, (iv) reduce the rate at which interest is payable
thereon or any fee is payable hereunder, (v) alter the manner in which payments
or prepayments of principal, interest or other
109
amounts hereunder shall be applied as between the Lenders or Classes of Loans,
(vi) alter the terms of this Section 11.04, (vii) modify the definition of the
term "Majority Lenders", "Majority Revolving Credit Lenders", "Majority Facility
A Term Loan Lenders", "Majority Facility B Term Loan Lenders" or "Majority
Incremental Facility Lenders" or modify in any other manner the number or
percentage of the Lenders required to make any determinations or waive any
rights hereunder or to modify any provision hereof, or (viii) waive any of the
conditions precedent set forth in Section 6.01 hereof; and (b) any modification
or supplement of Section 10 hereof, or of any of the rights or duties of the
Administrative Agent hereunder, shall require the consent of the Administrative
Agent.
Anything in the Agreement to the contrary notwithstanding, no
waiver or modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Company to satisfy a
condition precedent to the making of a Revolving Credit Loan or Incremental
Facility Loan of any Series shall be effective against the Revolving Credit
Lenders or Incremental Facility Lenders of such Series for purposes of the
Revolving Credit Commitments and Incremental Facility Commitments of such Series
unless the Majority Revolving Credit Lenders and Majority Incremental Facility
Lenders of such Series shall have concurred with such waiver or modification.
11.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11.06 Assignments and Participations.
(a) The Company may not assign any of its rights or
obligations hereunder without the prior consent of all of the Lenders and the
Administrative Agent.
(b) Each Lender may assign any of its Loans and its
Commitments (but only with the consent of each of the Administrative Agent, the
Syndication Agent and the Company, which consents shall not be unreasonably
withheld or delayed); provided that:
(i) no such consent by such Agents shall be required in the
case of any assignment to another Lender;
(ii) except to the extent such Agents and the Company shall
otherwise consent, any such partial assignment (other than to another
Lender) shall be in an amount at least equal to $5,000,000;
(iii) each such assignment by a Lender of its Revolving Credit
Loans or Revolving Credit Commitment shall be made in such manner so
that the same portion of
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its Revolving Credit Loans and Revolving Credit Commitment is
assigned to the respective assignee;
(iv) each such assignment by a Lender of its Facility A Term
Loans or Facility A Term Loan Commitment shall be made in such manner
so that the same portion of its Facility A Term Loans and Facility A
Term Loan Commitment is assigned to the respective assignee;
(v) each such assignment by a Lender of its Facility B Term
Loans or Facility B Term Loan Commitment shall be made in such manner
so that the same portion of its Facility B Term Loans and Facility B
Term Loan Commitment is assigned to the respective assignee;
(vi) each such assignment by a Lender of its Incremental
Facility Loans of any Series or Incremental Facility Commitment of any
Series shall be made in such manner so that the same portion of its
Incremental Facility Loans and Incremental Facility Commitment of such
Series is assigned to the respective assignee; and
(vii) upon each such assignment, the assignor and assignee
shall deliver to the Company and each of such Agents an Assignment and
Acceptance in the form of Exhibit A hereto and the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; and
(viii) any consent of the Company otherwise required under
this paragraph (b) shall not be required if an Event of Default has
occurred and is continuing.
Upon execution and delivery by the assignor and the assignee to the Company and
the Administrative Agent of an Assignment and Acceptance, and upon consent
thereto by such Agents to the extent required above, the assignee shall have, to
the extent of such assignment (unless otherwise consented to by the Company and
such Agents), the obligations, rights and benefits of a Lender hereunder holding
the Commitment(s) and Loans (or portions thereof) assigned to it and specified
in such Assignment and Acceptance (in addition to the Commitment(s) and Loans,
if any, theretofore held by such assignee) and the assigning Lender shall, to
the extent of such assignment, be released from the Commitment(s) (or portion(s)
thereof) so assigned. Upon each such assignment the assigning Lender shall pay
the Administrative Agent an assignment fee of $3,500.
(c) A Lender may sell or agree to sell to one or more other
Persons (each a "Participant") a participation in all or any part of any Loans
held by it, or in its Commitments, provided that such Participant shall not have
any rights or obligations under this Agreement or any other Loan Document (the
Participant's rights against such Lender in respect of such
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participation to be those set forth in the agreements executed by such Lender in
favor of the Participant). All amounts payable by the Company to any Lender
under Section 5 hereof in respect of Loans held by it, and its Commitments,
shall be determined as if such Lender had not sold or agreed to sell any
participations in such Loans and Commitments, and as if such Lender were funding
each of such Loan and Commitments in the same way that it is funding the portion
of such Loan and Commitments in which no participations have been sold. In no
event shall a Lender that sells a participation agree with the Participant to
take or refrain from taking any action hereunder or under any other Loan
Document except that such Lender may agree with the Participant that it will
not, without the consent of the Participant, agree to (i) increase or extend the
term of such Lender's Commitments or extend the amount or date of any scheduled
reduction of such Commitments pursuant to Section 2.03 hereof, (ii) extend the
date fixed for the payment of principal of or interest on the related Loan or
Loans or any portion of any fee hereunder payable to the Participant, (iii)
reduce the rate at which interest is payable thereon, or any fee hereunder
payable to the Participant, to a level below the rate at which the Participant
is entitled to receive such interest or fee or (iv) consent to any modification,
supplement or waiver hereof or of any of the other Loan Documents to the extent
that the same, under Section 10.09 or 11.04 hereof, requires the consent of each
Lender.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 11.06, any Lender may
(without notice to the Company, the Agents or any other Lender and without
payment of any fee) assign and pledge all or any portion of its Loans to secure
obligations of such Lender, including any such assignment or pledge to a Federal
Reserve Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank and any Lender may assign all or
any portion of its rights under this Agreement and its Loans to an affiliate. No
such assignment or pledge shall release the assigning Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning the
Company or any of its Subsidiaries in the possession of such Lender from time to
time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan
held by it hereunder to the Company or any of its Affiliates or Subsidiaries
without the prior consent of each Lender.
(g) The Administrative Agent, acting for this purpose as an
agent of the Company, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
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Register shall be conclusive, and the Company, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Company and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(h) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
11.07 Survival. The obligations of the Company under Sections
5.01, 5.05, 5.06 and 11.03 hereof, and the obligations of the Lenders under
Section 10.05 hereof, shall survive the repayment of the Loans and the
termination of the Commitments and, in the case of any Lender that may assign
any interest in its Commitments or Loans hereunder, shall survive the making of
such assignment, notwithstanding that such assigning Lender may cease to be a
"Lender" hereunder. In addition, each representation and warranty made, or
deemed to be made by a notice of any Loan, herein or pursuant hereto shall
survive the making of such representation and warranty, and no Lender shall be
deemed to have waived, by reason of making any Loan, any Default that may arise
by reason of such representation or warranty proving to have been false or
misleading, notwithstanding that such Lender or the Administrative Agent may
have had notice or knowledge or reason to believe that such representation or
warranty was false or misleading at the time such Loan was made.
11.08 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
11.09 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
11.10 Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with, the law of the
State of New York. The Company hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
the Supreme Court of the State of New York sitting in New York County (including
its Appellate Division), and of any other appellate court in the
113
State of New York, for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. The Company
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any objection that it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
11.11 Waiver of Jury Trial. EACH OF THE COMPANY, THE AGENTS
AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
11.12 Treatment of Certain Information; Confidentiality.
(a) The Company acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Company or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender and the Company hereby authorizes each Lender to share
any information delivered to such Lender by the Company and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Lender to
enter into this Agreement, to any such subsidiary or affiliate, it being
understood that any such subsidiary or affiliate receiving such information
shall be bound by the provisions of paragraph (b) below as if it were a Lender
hereunder. Such authorization shall survive the repayment of the Loans and the
termination of the Commitments.
(b) Each of the Lenders and the Agents agree (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking or other
lending practices, any non-public information supplied to it by any Obligor
pursuant to this Agreement or any other Loan Document to which it is party that
is identified by such Obligor as being confidential at the time the same is
delivered to the Lenders or the Agents, provided that nothing herein shall limit
the disclosure of any such information (i) after such information shall have
become public (other than through a violation of this Section 11.12), (ii) to
the extent required by statute, rule, regulation or judicial process, (iii) to
counsel for any of the Lenders or the Agents, (iv) to bank examiners (or any
other regulatory authority, including the NAIC, having jurisdiction over any
Lender or the Agents), or to auditors or accountants, (v) to the Agents or any
other Lender (or to Chase Securities, Inc. or J.P. Morgan Securities Inc.), (vi)
in connection with any litigation to which any one or more of the Lenders or the
Agents is a party, or in connection with the enforcement of rights or remedies
hereunder or under any other Loan Document, (vii) to a subsidiary or affiliate
of such Lender as provided in paragraph (a) above
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(viii) or to any Person who evaluates, approves, structures or administers the
Loans on behalf of a Lender and who is subject to this confidentiality provision
or (ix) to any assignee or participant (or prospective assignee or participant)
so long as such assignee or participant (or prospective assignee or participant)
first executes and delivers to the respective Lender a Confidentiality Agreement
for the benefit of the Company substantially in the form of Exhibit I hereto (or
executes and delivers to such Lender an acknowledgement to the effect that it is
bound by the provisions of this Section 11.12(b), which acknowledgement may be
included as part of the respective assignment or participation agreement
pursuant to which such assignee or participant acquires an interest in the Loans
hereunder); provided, further, that in no event shall any Lender or the
Administrative Agent be obligated or required to return any materials furnished
by the Company. The obligations of each Lender under this Section 11.12 shall
supersede and replace the obligations of such Lender under the confidentiality
letter in respect of this financing signed and delivered by such Lender to the
Company prior to the date hereof; in addition, the obligations of any assignee
that has executed a Confidentiality Agreement in the form of Exhibit I hereto
shall be superseded by this Section 11.12 upon the date upon which such assignee
becomes a Lender hereunder pursuant to Section 11.06(b) hereof.
11.13 Limitation of Liability. Anything herein or in any of
the other Loan Documents to the contrary notwithstanding, the Lenders and the
Agents shall have no recourse to the assets of any of the direct or indirect
general or limited partners of the Company (including, without limitation,
FrontierVision Holdings, except to the extent that FrontierVision Holdings has
pledged its assets pursuant to the Security Documents, to which it is a party,
and FrontierVision LP) with respect to the obligations of the Company under this
Agreement or any of the other Loan Documents.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
FRONTIERVISION OPERATING
PARTNERS, L.P.
By: FrontierVision Holdings, L.P., as general partner
of FrontierVision Operating Partners, L.P.
By: Frontiervision Partners, L.P., as general
partner of FrontierVision Holdings, L.P.
By: FVP GP, L.P., as general partner of
FrontierVision Partners, L.P.
By: FrontierVision Inc., as general
partner of FVP GP, L.P.
By____________________________
Title:
By its signature below each Subsidiary Guarantor (i) consents
to this Agreement and confirms that the obligations of the Company under this
Agreement and under the Notes (if any) and in respect of Pari Passu Obligations
are entitled to the benefits of the Subsidiary Guarantee Agreement executed by
each Subsidiary Guarantor, respectively, (and shall constitute "Guaranteed
Obligations" (as defined in such Subsidiary Guarantee Agreement) under and for
all purposes of such Subsidiary Guarantee Agreement and (ii) together with the
Administrative Agent (acting with the consent of the Majority Lenders under the
Existing Credit Agreement) agrees that references in such Subsidiary Guarantee
Agreement to the "Credit Agreement" shall be deemed to be references to this
Agreement.
FRONTIERVISION CAPITAL FRONTIERVISION CABLE NEW ENGLAND, INC.
CORPORATION
By____________________________ By____________________________
Title: Title:
116
LENDERS
THE CHASE MANHATTAN BANK MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By_________________________ By_________________________
Title: Title:
CIBC INC.
By_________________________
Title:
BANK OF MONTREAL, CHICAGO BRANCH FIRST NATIONAL BANK OF CHICAGO
By_________________________ By_________________________
Title: Title:
FIRST UNION NATIONAL BANK THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
By_________________________
By_________________________ Title:
Title:
UNION BANK OF CALIFORNIA FLEET NATIONAL BANK
By_________________________ By_______________________
Title: Title:
117
CO_PERATIEVE CENTRALE ABN AMRO BANK N.V.
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By_________________________ By_______________________
Title: Title:
BANKBOSTON, N.A. THE BANK OF NEW YORK
By_________________________ By________________________
Title: Title:
DRESDNER BANK AG CREDIT LYONNAIS
NEW YORK AND GRAND CAYMAN BRANCHES
By_________________________
Title: By_________________________
Title:
By_________________________
Title:
MELLON BANK, N.A. BANQUE PARIBAS
By_________________________ By_________________________
Title: Title:
By_________________________
Title:
118
PNC BANK, NATIONAL ASSOCIATION ROYAL BANK OF CANADA
By_________________________ By_________________________
Title: Title:
CITIZENS BANK OF RHODE ISLAND BANQUE NATIONALE DE PARIS
By_________________________ By_________________________
Title: Title:
By_________________________
Title:
U.S. BANK NATIONAL ASSOCIATION, CRESTAR BANK
DBA COLORADO NATIONAL BANK
By_________________________ By_________________________
Title: Title:
FIRST HAWAIIAN BANK THE FUJI BANK, LIMITED
By_________________________ By_________________________
Title: Title:
119
GENERAL ELECTRIC CAPITAL CORPORATION INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By_________________________ By_________________________
Title: Title:
THE MITSUBISHI TRUST & BANKING THE SUMITOMO BANK, LIMITED
CORPORATION
By_________________________
Title: By_________________________
Title:
SUNTRUST BANK, CENTRAL FLORIDA, N.A. NATEXIS BANQUE BFCE
By_________________________
Title: By_________________________
Title:
By_________________________
Title:
KZH HOLDING CORPORATION III VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By_________________________
By_________________________ Title:
Title:
PILGRIM AMERICA PRIME RATE TRUST MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By_________________________ By_________________________
Title: Title:
120
OCTAGON CREDIT INVESTORS LOAN THE TRAVELERS INSURANCE COMPANY
PORTFOLIO (A UNIT OF THE CHASE
MANHATTAN BANK)
By_________________________ By_________________________
Title: Title:
CREDIT AGRICOLE INDOSUEZ PFL LIFE INSURANCE COMPANY
By_________________________ By_________________________
Title: Title:
By_________________________
Title:
ROYALTON COMPANY
BY: PACIFIC INVESTMENT MANAGEMENT COMPANY AS ITS
INVESTMENT ADVISOR
By_________________________
Title:
121
THE CHASE MANHATTAN BANK, J.P. MORGAN SECURITIES INC.,
as Administrative Agent as Syndication Agent
By_________________________ By_________________________
Title: Title:
CIBC INC.,
as Documentation Agent
By_________________________
Title: