EXECUTION COPY
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EXHIBIT NO. 10.25
$12,000,000
SENIOR SUBORDINATED LOAN AGREEMENT
among
THE HELICON GROUP, L.P.,
and
VARIOUS LENDERS
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Dated as of January 5, 1999
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SENIOR SUBORDINATED LOAN AGREEMENT, dated as of January 5,
1999, among THE HELICON GROUP, L.P., a limited partnership organized and
existing under the laws of the State of Delaware (the "Borrower") and the
financial institutions party hereto from time to time (each a "Lender" and,
collectively, the "Lenders"). Unless otherwise defined herein, all capitalized
terms used herein and defined in Section 8 are used herein as therein defined.
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders lend to
the Borrower $12,000,000 for the purposes specified herein; and
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Lenders are willing to make loans to the Borrower in an aggregate
amount of $12,000,000;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF LOANS.
1.01 THE LOANS. Subject to and upon the terms and conditions
set forth herein, each Lender severally agrees to make, on the Initial Funding
Date and on the Subsequent Funding Date, a loan in Dollars (each a "Loan" and,
collectively, the "Loans") to the Borrower in a principal amount not to exceed
such Lender's Commitment immediately prior to the incurrence of such Loans. Any
amount of any Loan prepaid or repaid may not be reborrowed.
1.02 NOTICE OF BORROWING. The Borrower shall give each Lender
at the address specified opposite its signature below, prior to 12:00 Noon (New
York time) on the Business Day preceding the applicable Funding Date, a written
notice (or telephonic notice promptly confirmed in writing) of the proposed
Borrowing of Loans. Such notice (the "Notice of Borrowing") shall be irrevocable
and shall be given by the Borrower in the form of EXHIBIT A, appropriately
completed to specify (i) the aggregate principal amount of the Loan to be made
pursuant to the proposed Borrowing, and (ii) the applicable Funding Date (which
shall be a Business Day).
1.03 DISBURSEMENT OF FUNDS. No later than 12:00 Noon (New York
time) on the applicable Funding Date, each Lender will make to the Borrower an
amount equal to such Lender's pro rata portion of the applicable Borrowing, by
wire transfer to an account to be designated by the Borrower, in Dollars and
immediately available funds.
1.04 NOTES. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made to it by each Lender, shall be evidenced by
a promissory note substantially in the form of EXHIBIT B, with blanks
appropriately completed in conformity herewith (each, a "Note" and,
collectively, the "Notes").
(b) The Note issued to each Lender shall (i) be executed by
the Borrower, (ii) be payable to the order of such Lender or its registered
assigns and be dated the Initial Funding Date, (iii) be in the stated principal
amount equal to the Commitment of such Lender and be payable in the principal
amount of the Loan evidenced thereby, (iv) mature on the Maturity Date,
(v) bear interest as provided in Section 1.05 and (vi) be subject to voluntary
repayment and mandatory repayment as provided in Section 2.02 and (vii) be
entitled to the benefits of this Agreement and the Subordinated Guaranty.
(c) Each Lender will note on its internal records the amount
of each Loan made or acquired by it and each payment in respect thereof and
will, prior to any transfer of any Note, endorse on the reverse side thereof the
outstanding principal amount of the Loan evidenced thereby. Failure to make any
such notation shall not affect the Borrower's obligations in respect of the
Loans.
1.05 INTEREST. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Loan from the date such Loan is
made until the maturity thereof (whether by acceleration or otherwise), at a
rate which shall at all times be equal to 11.5% per annum.
(b) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to 17.5%
with such interest to be payable on demand.
(c) Accrued and unpaid interest shall be payable quarterly in
arrears on each Quarterly Payment Date, on any repayment (on the amount repaid),
at maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(d) All computations of interest hereunder shall be made in
accordance with Section 10.07(b).
1.06 INCREASED COSTS, ETC. If any Lender shall have determined
that after the date hereof, the adoption or effectiveness of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender or any corporation
controlling such Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or such other corporation's capital or assets as a consequence
of such Lender's Commitment or Commitments hereunder or its obligations
hereunder to a level below that which such Lender or such other corporation
could have achieved but for such adoption, effectiveness, change or compliance
(taking into consideration such Lender's or such other corporation's policies
with respect to capital adequacy), then from time to time, upon written demand
by such Lender, accompanied by the notice referred to in the second to last
sentence of this Section 1.06, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such other
corporation for such reduction. In determining such additional amounts, each
Lender will act reasonably and in good faith and will use reasonable averaging
and attribution methods. Each Lender, upon determining that any additional
amounts will be payable pursuant to this Section 1.06, will give prompt written
notice thereof to the Borrower, which notice shall set forth in reasonable
detail the basis of the calculation of such additional amounts, although the
failure to give any such notice shall not release or diminish the Borrower's
obligations to pay additional amounts pursuant to this
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Section 1.06 upon the subsequent receipt of such notice. A Lender's reasonable
good faith determination of compensation owing under this Section 1.06 shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto.
1.07 FEES. The Borrower agrees to pay to each Lender, (a)
quarterly in arrears on each Quarterly Payment Date and on the date of each
reduction or termination of the Subsequent Commitment, a fee computed at a rate
for each day equal to 1.50% per annum of the Subsequent Commitment of such
Lender and (b) such other fees as may be agreed to in writing between the
Borrower and any Lender.
SECTION 2. COMMITMENTS; REPAYMENT; PREPAYMENTS; PAYMENTS;
TAXES.
2.01 TERMINATION OF COMMITMENTS; PAYMENT OF LOANS . (a) The
Total Commitment (and the Commitment of each Lender hereunder) shall terminate
(i) on the Expiration Date unless the Initial Funding Date has occurred on or
before such date or (ii) on March 1, 1999.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 2.01, the Total Commitment (and the Commitment of each
Lender) shall be reduced on each of the Initial Funding Date and the Subsequent
Funding Date by an amount equal to the amount of Loans made on such date.
(c) The unpaid principal amount of the Loans plus all accrued
and unpaid interest thereon and all other amounts owed hereunder with respect
thereto shall be paid in full in cash on the Maturity Date.
2.02 MANDATORY AND VOLUNTARY PREPAYMENTS. (a) The Borrower
may, upon not less than three Business Days' and not more than five Business
Days' prior written notice to the Lenders (which notice shall be irrevocable),
at any time and from time to time, prepay the Loans in whole or in part,
PROVIDED, HOWEVER, that (i) each partial prepayment pursuant to this Section
2.02(a) shall be in an aggregate principal amount of at least $1,000,000 and, if
greater, in integral multiples thereof, and (ii) no such prepayment shall be
made unless (x) there is no Senior Debt outstanding and all commitments under
the Senior Debt Documents have been terminated or (y) the Senior Debt Documents
do not prohibit such payments or the Required Banks thereunder or requisite
holders thereunder (in the case of the Senior Indenture) have consented to such
payment. In connection with any voluntary prepayment or mandatory prepayment,
the Borrower shall prepay the Loan at the prepayment price set forth below (the
"Redemption Price") (plus all accrued interest):
% of Principal
Prepayment Date During the Period Being Paid
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From the Initial Funding Date to but not including 106%
November 30, 1999
From November 30, 1999 to but not including November 103%
30, 2000
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From November 30, 2000 and at any time thereafter 100%
(b) All prepayments (whether voluntary or mandatory) shall
include payment of accrued interest on the principal amount of the Loans so
prepaid and shall be applied to payment of accrued interest before application
to principal. Any payment of the Loans as a result of an Event of Default (or
the acceleration of the Loans resulting therefrom) (including a Change in
Control) and all mandatory prepayments (including, without limitation, payments
pursuant to Section 2.02(c)) shall be deemed a voluntary prepayment for the
purposes of this Section 2 and shall be paid at the Redemption Price specified
in Section 2.02(a) as if such payment had been voluntary. All prepayments which
are applied to principal will be applied on a PRO RATA basis to all Loans.
(c) The Borrower will apply, or cause its applicable
Subsidiaries to apply, the following amounts FIRST to the permanent reduction of
the then outstanding Senior Debt and any commitments thereunder to make loans,
or issue letters of credit (in each such case, only if required under the terms
of the Senior Debt Documents) and NEXT, to the extent not required by the terms
of the Senior Debt Documents to be used to prepay the Senior Debt in permanent
reduction thereof, to the Obligations in the manner set forth in Section
2.02(b):
(i) on the date of the receipt thereof by the Borrower or any
Subsidiary of the Borrower, the Borrower shall repay, in accordance
with Section 2.02(b), an amount equal to 100% of the cash proceeds (net
of underwriting discounts and commissions and all other reasonable
costs associated with such transaction) from any sale or issuance after
the Effective Date of equity of the Borrower or any Subsidiary of the
Borrower or the incurrence of any Indebtedness by the Borrower or any
Subsidiary of the Borrower other than Indebtedness permitted to be
incurred pursuant to Section 6.04 as said Section is in effect on the
Effective Date;
(ii) on each date after the Effective Date on which the Borrower
or any Subsidiary of the Borrower receives Net Sale Proceeds from any
sale or other disposition of assets (including capital stock and
securities other than capital stock or securities the proceeds from the
sale of which are recaptured pursuant to Section 2.02(c)(i)), an amount
equal to 100% of such Net Sale Proceeds excluding Net Sale Proceeds of
(A) sales of inventory in the ordinary course of business, (B) up to
$7,000,000 from the sale of ISP Assets so long as the proceeds from
such sale are first applied to repay all Indebtedness secured by the
ISP Assets and any excess thereof is used to purchase within 180 days
of the receipt thereof assets used in the Borrower's cable systems
business and/or Helicon Network Solutions, (C) sales of cable assets
for cash, of up to 800 subscribers, to be effected during the period
beginning on the Initial Borrowing Date and ending on December 31, 1999
and (D) other sales of assets permitted pursuant to Section 6.02 hereof
as said Section is in effect on the Effective Date.
2.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to each Lender not later than 12:00 Noon (New York time) on the
date when due and shall be made in Dollars and in
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immediately available funds at the address specified opposite such Lender's
signature below. Whenever any payment to be made hereunder or under any Note
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable at the applicable rate
during such extension.
2.04 NET PAYMENTS. (a) All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 2.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income of a Lender pursuant to the laws of the
jurisdiction or any political subdivision or taxing authority thereof or therein
in which the principal office or applicable lending office of such Lender is
located) and all interest, penalties or similar liabilities with respect thereto
(collectively, "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due hereunder or under any
Note, after withholding or deduction for or on account of any Taxes, will not be
less than the amount provided for herein or in such Note. If any amounts are
payable in respect of Taxes pursuant to the preceding sentence, then the
Borrower shall be obligated to reimburse each Lender, upon the written request
of such Lender, for taxes imposed on or measured by the net income of such
Lender pursuant to the laws of the jurisdiction or any political subdivision or
taxing authority thereof or therein in which the principal office or applicable
lending office of such Lender is located as such Lender shall determine are
payable by such Lender in respect of such amounts so paid to or on behalf of
such Lender pursuant to the preceding sentence and in respect of any amounts
paid to or on behalf of such Lender pursuant to this sentence. The Borrower will
furnish to each Lender within 45 days after the date of the payment of any Taxes
due pursuant to applicable law certified copies of tax receipts evidencing such
payment by the Borrower. The Borrower agrees to indemnify and hold harmless each
Lender, and reimburse such Lender upon its written request, for the amount of
any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Borrower on or prior to the Effective Date, or in the case of a Lender that is
an assignee or transferee of an interest under this Agreement pursuant to
Section 10.04 (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) two accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001 (or successor forms)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form 4224 or 1001 pursuant to clause (i) above, (x) a certificate
substantially in the form of EXHIBIT C (any such certificate, a "Section
2.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such
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Lender's entitlement to a complete exemption from United States withholding tax
with respect to payments of interest to be made under this Agreement and under
any Note. In addition, each Lender agrees that from time to time after the
Effective Date, when a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material respect, it will
deliver to the Borrower two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001, or Form W-8 and a Section
2.04(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower of its inability to deliver any such Form or Certificate, in
which case such Lender shall not be required to deliver any such Form or
Certificate pursuant to this Section 2.04(b). Notwithstanding anything to the
contrary contained in Section 2.04(a), but subject to the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that
such Lender has not provided to the Borrower U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or withholding and (y)
the Borrower shall not be obligated pursuant to Section 2.04(a) hereof to
gross-up payments to be made to a Lender in respect of income or similar taxes
imposed by the United States if (I) such Lender has not provided to the Borrower
the Internal Revenue Service Forms required to be provided to the Borrower
pursuant to this Section 2.04(b) or (II) in the case of a payment, other than
interest, to a Bank described in clause (ii) above, to the extent that such
forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 2.04, the Borrower agrees to pay additional amounts
and to indemnify each Lender in the manner set forth in Section 2.04(a) (without
regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any amounts deducted or withheld by it as described
in the immediately preceding sentence as a result of any changes after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of income or similar Taxes.
SECTION 3. CONDITIONS PRECEDENT TO LOANS.
3.01 CONDITIONS PRECEDENT TO LOANS ON THE INITIAL FUNDING
DATE. The obligation of each Lender to make its Loan on the Initial Funding Date
is subject to (a) the condition precedent that the Effective Date shall have
occurred and (b) the satisfaction of the following additional conditions
precedent:
(a) OFFICER'S CERTIFICATE. On the Initial Funding Date, each
Lender shall have received a certificate, dated the Initial Funding Date, signed
by the Chief Executive Officer, Chief Financial Officer, President or any Vice
President of the Borrower stating that all of the conditions specified in
clauses (g), (l) and (o) of this Section 3.01 and clauses (a), (c) and (d) of
Section 3.02 have been satisfied on such date; PROVIDED such certificate shall
not be required to include a certification as to acceptability of any matters to
the Lenders described in said Sections.
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Each such certificate shall be in the form of EXHIBIT D with appropriate
insertions, together with all exhibits referred to in such certificate, and the
foregoing shall be acceptable to the Lenders.
(b) OPINIONS OF COUNSEL. On the Initial Funding Date, each
Lender shall have received (i) from Richard A. Hainbach, counsel to the Borrower
and its Subsidiaries, an opinion addressed to the Lenders and dated the Initial
Funding Date covering the matters set forth in EXHIBIT E and (ii) from counsel
rendering such opinions, reliance letters addressed to each Lender and dated the
Initial Funding Date with respect to all legal opinions delivered in connection
with the Transaction, with such legal opinions to be in form and substance
satisfactory to each Lender.
(c) CORPORATE DOCUMENTS; PROCEEDINGS. (i) On the Initial
Funding Date, each Lender shall have received a certificate, dated the Initial
Funding Date, signed by the Chief Executive Officer, Chief Financial Officer,
President or any Vice President of each Loan Party, and attested to by the
Secretary or any Assistant Secretary of such Loan Party, in the form of EXHIBIT
F with appropriate insertions, together with copies of the Certificate of
Incorporation and By-Laws or partnership agreement (or equivalent organizational
documents) of such Loan Party and the resolutions of such Loan Party referred to
in such certificate, and the foregoing shall be acceptable to the Required
Lenders in their sole discretion.
(ii) All corporate and legal proceedings and all instruments
and agreements relating to the transactions contemplated by this Agreement, the
other Loan Documents and the other Documents shall be satisfactory in form and
substance to the Lenders, and each Lender shall have received all information
and copies of all material documents and papers, including records of corporate
proceedings, governmental approvals, good standing certificates and bring-down
telegrams, if any, which such Lender may have requested in connection therewith,
such documents and papers where appropriate to be certified by proper corporate
or governmental authorities.
(d) CAPITALIZATION. On the Initial Funding Date, after giving
effect to the Transaction, the ownership and capital structure (including,
without limitation, the terms of the capital stock, options, warrants or other
securities issued or to be issued by the Borrower and the Subsidiaries of the
Borrower) shall be in form and substance satisfactory to the Lenders.
(e) SENIOR DEBT DOCUMENTS. On or prior to the Initial Funding
Date, there shall have been delivered to the Lenders true and complete copies of
the Senior Debt Documents and all schedules, annexes and exhibits thereto
(certified as such by an appropriate officer of the Borrower), and all of the
foregoing shall be in form and substance satisfactory to the Lenders. The Credit
Agreement shall, to the extent necessary, have been amended in accordance with
its terms to permit the transactions contemplated hereby. Each Lender shall have
received from Richard A. Hainbach, counsel to the Borrower and its Subsidiaries,
an opinion addressed to each such Lender, dated the Initial Funding Date,
stating that the consummation of the Transaction does not conflict with or
result in any breach of any of the terms, covenants, conditions or provisions
of, constitute a default under, result in creation or imposition of, any Lien on
the property or assets of the Borrower or any of its Subsidiaries pursuant to
any of the Senior Debt Documents. On the Initial Funding Date, there shall have
been delivered to the Lenders a certificate, dated the Initial Funding Date,
signed by the Chief Financial Officer of the Borrower certifying that the
incurrence of the Indebtedness hereunder does not breach any of the terms or
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conditions of any of the Senior Debt Documents and, in particular, certifying,
and providing the detailed computations with respect thereto, that the Pro Forma
Debt Coverage Ratio (as defined in the Senior Indenture) for the Issuers (as
defined in the Senior Indenture) and their Restricted Subsidiaries (as defined
in the Senior Indenture) would be less than 7.50 to 1.00.
(f) FEES, ETC. On the Initial Funding Date, the Borrower shall
have paid in full to each Lender all costs, fees and expenses (including,
without limitation, all legal fees and expenses) payable to such Lender to the
extent then due pursuant hereto or as otherwise agreed between the Borrower and
such Lender.
(g) APPROVALS. All necessary governmental and third party
approvals in connection with the Transaction (other than the Acquisition) and
the transactions contemplated by the Loan Documents and otherwise referred to
herein or therein and all necessary and material governmental and third party
approvals in connection with the Acquisition and the transactions contemplated
by the Acquisition Documents shall have been obtained and remain in effect, and
all applicable waiting periods shall have expired without any action being taken
by any competent authority which restrains, prevents or imposes, in the sole
judgment of the Lenders, adverse conditions upon the consummation of the
Transaction or the other transactions contemplated by the Documents and
otherwise referred to herein or therein. There shall not exist any judgment,
order, injunction or other restraint issued or filed or a hearing seeking
injunction relief or other restraint pending or notified prohibiting or imposing
materially adverse conditions upon the consummation of the Transaction, the
transactions contemplated by the Documents, or the making of the Loans.
(h) FINANCIAL STATEMENTS; PROJECTIONS; MANAGEMENT LETTER
REPORTS. (A) On or prior to the Initial Funding Date, the Lenders shall have
received the consolidated balance sheets of the Borrower at December 31, 1995,
December 31, 1996, December 31, 1997 and September 30, 1998 and the related
statements of income and cash flows and changes in shareholders' equity of the
Borrower for the fiscal years or nine-month period, as the case may be, ended as
of said dates, all of which financial statements shall be prepared in accordance
with generally accepted accounting principles consistently applied, subject, in
the case of the nine-month statements, to normal year-end audit adjustments and
the absence of footnotes, and shall (x) be in form and substance satisfactory to
the Required Lenders and (y) not disclose any material adverse differences in
the business, properties, assets, liabilities, results of operations, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole from that previously disclosed to the Lenders.
(B) On the Initial Funding Date, the Lenders shall have
received detailed consolidated financial projections, certified by the Chief
Financial Officer of the Borrower, for the Borrower and its Subsidiaries, which
include the projected results of the Borrower, after giving effect to the
Transaction and the other transactions contemplated herein, for the period
commencing on January 1, 1999 and ending after the Maturity Date (the
"Projections"), which Projections, and the supporting assumptions and
explanations thereto, and the accounting practices and procedures to be utilized
by the Borrower following the Initial Funding Date, shall be satisfactory in
form and substance to the Required Lenders.
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(C) On or prior to the Initial Funding Date, the Lenders shall
have received a copy of any "management letter" received by the Borrower or any
of its Subsidiaries from its certified public accountants.
(D) On or prior to the Initial Funding Date, the Lenders shall
have received a detailed budget for the $4,000,000 of capital expenditures
proposed to be used in connection with the Acquisition.
(i) SUBORDINATED GUARANTY. On the Initial Funding Date, HCC
shall have duly authorized, executed and delivered a Subordinated Guaranty in
the form of EXHIBIT G (as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof, the "Subordinated Guaranty"), and
the Subordinated Guaranty shall be in full force and effect.
(j) PLANS; SHAREHOLDERS' AGREEMENTS; MANAGEMENT AGREEMENTS;
EMPLOYMENT AGREEMENTS; COLLECTIVE BARGAINING AGREEMENTS; DEBT AGREEMENTS;
AFFILIATE CONTRACTS; TAX SHARING AGREEMENTS AND MATERIAL CONTRACTS. On or prior
to the Initial Funding Date, there shall have been delivered to any Lender who
requests same in writing true and correct copies, certified as true and complete
by an appropriate officer of the Borrower of:
(i) all Plans (and for each Plan that is required to file an
annual report on Internal Revenue Service Form 5500-series, a copy of
the most recent such report (including, to the extent required, the
related financial statements and opinions and other supporting
statements, certifications, schedules and information) and any other
"employee benefit plans," as defined in Section 3(3) of ERISA, and any
other material agreements, plans or arrangements, with or for the
benefit of current or former employees of the Borrower or any of its
Subsidiaries or any ERISA Affiliate (collectively, the "Employee
Benefit Plans");
(ii) all agreements entered into by the Borrower or any
Subsidiary of the Borrower governing the terms and relative rights of
its capital stock or stock equivalents and any agreements entered into
by shareholders relating to any such entity with respect to their
capital stock (collectively, the "Shareholders' Agreements");
(iii) all agreements with members of, or with respect to the,
management of the Borrower or any Subsidiary of the Borrower other than
Employment Agreements (collectively, the "Management Agreements");
(iv) all collective bargaining agreements applying or relating
to any employee of the Borrower or any Subsidiary of the Borrower
(collectively, the "Collective Bargaining Agreements");
(v) all agreements evidencing or relating to Indebtedness of
the Borrower or any Subsidiary of the Borrower whether or not such
agreement is to remain outstanding after giving effect to the
incurrence of Loans on the Initial Funding Date (collectively, the
"Debt Agreements");
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(vi) all tax sharing, tax allocation and other similar
agreements entered into by the Borrower or any Subsidiary of the
Borrower (collectively, the "Tax Sharing Agreements");
(vii) all contracts, agreements or understandings entered into
between the Borrower or any of its Subsidiaries on the one hand, and
any of its Affiliates, on the other hand (collectively, the "Affiliate
Contracts"); and
(viii) all material contracts and licenses of the Borrower or any
of its Subsidiaries that are to remain in effect after giving effect to
the consummation of the Transaction, as set forth on SCHEDULE 4.24
hereto (collectively, the "Material Contracts");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Collective Bargaining Agreements, Debt Agreements, Tax Sharing
Agreements, Affiliate Contracts and Material Contracts shall be in form and
substance satisfactory to the Required Lenders and shall be in full force and
effect on the Initial Funding Date.
(k) INSURANCE ANALYSES. On the Initial Funding Date, the
Borrower shall cause to be delivered to the Lenders, evidence (including,
without limitation, certificates with respect to each insurance policy listed on
SCHEDULE 5.03) of insurance, complying with the requirements of Section 5.03,
with respect to the business and properties of the Borrower and its
Subsidiaries, in scope, form and substance satisfactory to the Required Lenders
and stating that such insurance shall not be canceled or reissued without 30
days' prior written notice by the insurer to the Lenders.
(l) CONSUMMATION OF THE ACQUISITION. On or prior to the
Initial Funding Date, there shall have been delivered to the Lenders true and
complete copies of all Acquisition Documents, and all terms and provisions of
such Acquisition Documents shall be in form and substance satisfactory to the
Required Lenders and shall not have been amended without the consent of the
Required Lenders. The Acquisition, including all of the terms and conditions
thereof, shall have been duly approved by the board of directors and (if
required by applicable law) the shareholders and/or any other organizational
bodies of the parties thereto, and all Acquisition Documents shall have been
duly executed and delivered by the parties thereto and shall be in full force
and effect. The representations and warranties set forth in the Acquisition
Documents shall be true and complete in all material respects as if made on and
as of the Initial Funding Date. Each of the conditions precedent to the
Borrower's obligations to consummate the Acquisition as set forth in the
Acquisition Documents shall have been satisfied to the satisfaction of the
Required Lenders or waived with the consent of the Required Lenders, and the
Acquisition shall have been consummated in accordance with all applicable law
and the Acquisition Documents (without giving effect to any amendment or
modification thereof or waiver with respect thereto unless consented to by the
Required Lenders).
(n) NOTES. On the Initial Funding Date, there shall have been
delivered to each Lender the appropriate Note, in each case executed by the
Borrower and in the amount, maturity and as otherwise provided herein.
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(o) OPERATING CASH FLOW. The Lenders shall be satisfied that
the pro forma annualized revenue and Operating Cash Flow of the Borrower for the
fiscal quarter ended on September 30, 1998 exceeds $49,500,000 and $25,100,000,
respectively.
(p) SUBORDINATION AGREEMENT. On the Initial Funding Date, the
Borrower shall and shall cause Helicon Corp. to have duly authorized, executed
and delivered a Subordination Agreement in the form of EXHIBIT I (as amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof, the "Subordination Agreement"), and the Subordination Agreement
shall be in full force and effect.
3.02 CONDITIONS PRECEDENT TO ALL LOANS. The obligation of each
Lender to make its Loan (including Loans made on the Initial Funding Date) is
subject, at the time to the satisfaction of the following conditions:
(a) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
the incurrence of the Loans and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Loan Documents shall be true and complete in
all material respects with the same effect as though such representations and
warranties had been made on such Funding Date, unless stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and complete in all material respects as of such earlier date.
(b) NOTICE OF BORROWING. Prior to the making of the Loans,
each Lender shall have received a Notice of Borrowing from the Borrower pursuant
to Section 1.02.
(c) LITIGATION. On such Funding Date, no litigation by any
entity (private or governmental) shall be pending or threatened with respect to
this Agreement, any other Document or any documentation executed in connection
herewith or with respect to the Transaction, or which any Lender shall determine
could reasonably be expected to have a materially adverse effect on the
Transaction or on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Borrower and the Subsidiaries of the Borrower taken as a whole
(after giving effect to the Transaction).
(d) MATERIAL ADVERSE CHANGE, ETC. Since December 31, 1997,
nothing shall have occurred (and the Lenders shall have become aware of no facts
or conditions not previously known) which the Lenders shall determine (i) could
reasonably be expected to have a material adverse effect on the rights or
remedies of the Lenders, or on the ability of any Loan Party to perform its
obligations to the Lenders under this Agreement or any other Loan Document, (ii)
could reasonably be expected to have a material adverse effect on the
performance, business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of any Loan Party
and any of its Subsidiaries taken as a whole (after giving effect to the
Transaction), (iii) reasonably indicates the inaccuracy in any material respect
of the information previously provided to any Lender in connection with its
analysis of the transactions contemplated hereby or reasonably indicates that
the information previously provided omitted to disclose any material
information.
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(e) SENIOR DEBT DOCUMENTS. On the Subsequent Funding Date,
each Lender shall have received from Richard A. Hainbach, counsel to the
Borrower and its Subsidiaries, an opinion addressed to each such Lender, dated
the Subsequent Funding Date, stating that the consummation of the Transaction
does not conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, constitute a default under, result in creation or
imposition of, any Lien on the property or assets of the Borrower or any of its
Subsidiaries pursuant to any of the Senior Debt Documents and, there shall have
been delivered to the Lenders a certificate, dated the Subsequent Funding Date,
signed by the Chief Financial Officer of the Borrower certifying that the
incurrence of the Indebtedness hereunder does not breach any of the terms or
conditions of any of the Senior Debt Documents and, in particular, certifying,
and providing the detailed computations with respect thereto, that the Pro Forma
Debt Coverage Ratio (as defined in the Senior Indenture) for the Issuers (as
defined in the Senior Indenture) and their Restricted Subsidiaries (as defined
in the Senior Indenture) would be less than 7.50 to 1.00.
SECTION 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In
order to induce the Lenders to enter into this Agreement and to make the Loans,
the Borrower makes the following representations, warranties and agreements as
to itself and its Subsidiaries on and as of the Initial Funding Date and on and
as of the Subsequent Funding Date, all of which representations, warranties and
agreements shall survive the execution and delivery of this Agreement and the
other Loan Documents and the Subsequent Funding Date, with the occurrence of the
Subsequent Funding Date being deemed to constitute a representation and warranty
that the matters specified in this Section 4 are true and correct on and as of
such date.
4.01 STATUS. Each of the Borrower and its Subsidiaries (i) is
a duly organized and validly existing corporation (or a limited liability
company or partnership, as applicable) in good standing under the laws of the
jurisdiction of its organization, (ii) has the power and authority to own its
property and assets and to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly qualified and is authorized to do
business and is in good standing in each jurisdiction where the ownership,
leasing or operation of property or the conduct of its business requires such
qualifications except for failures to be so qualified which, in the aggregate,
could not reasonably be expected to have a material adverse effect on the
performance, business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole.
4.02 POWER AND AUTHORITY. Each Loan Party has the corporate or
other power to execute, deliver and perform the terms and provisions of each of
the Documents to which it is party and has taken all necessary corporate or
other action to authorize the execution, delivery and performance by it of each
of such Documents. Each Loan Party has duly executed and delivered each of the
Documents to which it is party, and each of such Document constitutes its legal,
valid and binding obligation enforceable in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law).
4.03 NO VIOLATION. Neither the execution, delivery or
performance by any Loan Party of the Documents to which it is a party, nor
compliance by it with the terms and provisions thereof, (i) will contravene any
provision of any applicable law, statute, rule or regulation or any
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order, writ, injunction or decree of any court or governmental instrumentality
applicable to it, (ii) will conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien (except pursuant to the Senior Debt Documents) upon any of the property
or assets of any Loan Party or any of its Subsidiaries pursuant to the terms of
any indenture, mortgage, deed of trust, credit agreement or loan agreement, or
any other agreement, contract or instrument to which any of them are a party or
by which any of their property or assets is bound or to which any of them may be
subject or (iii) will violate any provision of the Certificate of Incorporation,
By-Laws or partnership agreement (or similar organizational documents) of any
Loan Party or any of its Subsidiaries.
4.04 GOVERNMENTAL APPROVALS. (a) No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made on or prior to the Initial Funding
Date and are in full force and effect), or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to authorize,
or is required in connection with, (i) the execution, delivery and performance
of any Loan Document, (ii) the legality, validity, binding effect or
enforceability of any such Loan Document or (iii) the Transaction (other than
the Acquisition) and (b) no material order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made on or prior to the Initial Funding Date
and are in full force and effect), or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (i) the execution, delivery and performance of any
Acquisition Document, (ii) the legality, validity, binding effect or
enforceability of any Acquisition Document or (iii) the Acquisition.
4.05 FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
LIABILITIES; PROJECTIONS; ETC. (a)(i) The financial statements of the Borrower
and its Subsidiaries delivered pursuant to Section 3.01(h), have been examined
or reviewed by the accountants referred to therein, who delivered unqualified
opinions in respect thereto and (ii) the PRO FORMA (after giving effect to the
Transaction and the related financing thereof) consolidated balance sheet of the
Borrower as at the Initial Funding Date, copies of all of which financial
statements referred to in the preceding clauses (i) and (ii) have heretofore
been furnished to each Lender, present fairly the financial position of the
respective entities at the dates of said statements and the results of
operations for the period covered thereby (or, in the case of the PRO FORMA
balance sheet, present a good faith estimate of the pro FORMA financial
condition of the Borrower and its Subsidiaries (after giving effect to the
Transaction) on a consolidated basis at the date thereof), subject, in the case
of the unaudited financial statements, to normal year-end audit adjustments and
the absence of footnotes. All such financial statements have been prepared in
accordance with generally accepted accounting principles and practices
consistently applied except to the extent provided in the notes to said
financial statements and, in the case of the unaudited interim financial
statements, subject to normal year end adjustments (none of which, individually
or in the aggregate, would be material) and the absence of footnotes. Since
December 31, 1997, there has been no material adverse change in the performance,
business, assets, nature of assets, liabilities, operations, properties,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole.
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(b) On and as of the Initial Funding Date, on a PRO FORMA
basis after giving effect to the Transaction and all other transactions
contemplated by the Documents and to all Indebtedness (including, without
limitation, the Loans) being incurred in connection with the Transaction, and
Liens created, and to be created, by the Borrower or the Subordinated Guarantor
in connection therewith: (a) the sum of the assets (including all contribution
and subrogation rights and other intangible assets), at a fair valuation, of the
Borrower or the Subordinated Guarantor will exceed its debts; (b) the Borrower
or the Subordinated Guarantor has not incurred or does not intend to, or does
not believe that it will, incur debts beyond its ability to pay such debts as
such debts mature; and (c) the Borrower or the Subordinated Guarantor will have
sufficient capital with which to conduct its business. For purposes of this
Section 4.05(b) "debt" means any liability on a claim, and "claim" means (i)
right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, subordinated, disputed,
undisputed, secured or unsecured.
(c) Except as fully reflected in the financial statements and
the notes related thereto described in Section 4.05(a) or as disclosed on
SCHEDULE 4.21, there were as of the Initial Funding Date (and after giving
effect to the Transaction and the other transactions contemplated hereby and by
the Documents) no liabilities or obligations with respect to the Borrower or any
of its Subsidiaries of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) which, either individually or in
aggregate, could reasonably be expected to be material to the Borrower and its
Subsidiaries taken as a whole. As of the Initial Funding Date, neither the
Borrower nor any of its Subsidiaries knows of any basis for the assertion
against the Borrower or any of its Subsidiaries of any liability or obligation
of any nature whatsoever that is not fully reflected in the financial statements
and the notes related thereto described in Section 4.05(a) which, either
individually or in the aggregate, could reasonably be expected to be material to
the Borrower and its Subsidiaries taken as a whole. As of the Initial Funding
Date (and after giving effect to the Transaction) neither the Borrower nor any
of its Subsidiaries will have any outstanding Indebtedness or preferred stock
other than (i) the Loans, (ii) the Senior Debt and (iii) the Existing
Indebtedness.
(d) On and as of the Initial Funding Date, the Projections
have been prepared in good faith by the Borrower and there are no statements or
conclusions in any of the Projections which are based upon or include
information known to the Borrower to be misleading or which fail to take into
account material information regarding the matters reported therein. On the
Initial Funding Date, the Borrower believes that the Projections were reasonable
and attainable (although actual results may differ from the Projections and no
representation is made that the Projections will in fact be attained).
4.06 LITIGATION. There are no actions, suits or proceedings
pending or, to the best knowledge of the Borrower and its Subsidiaries,
threatened (i) with respect to any Document or the transactions contemplated
thereby, or (ii) that are reasonably likely to materially and adversely affect
the performance, business, assets, nature of assets, liabilities, operations,
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properties, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole.
4.07 TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf of
the Borrower or any of its Subsidiaries in writing to any Lender (including,
without limitation, all information contained in the Documents) for purposes of
or in connection with this Agreement, the other Loan Documents or any
transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of the
Borrower and any of its Subsidiaries in writing to any Lender will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any material fact
necessary to make such information (taken as a whole) not misleading at such
time in light of the circumstances under which such information was provided.
There is no fact known to the Borrower which is reasonably likely to have a
material adverse effect on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, which has not
been disclosed herein or in such other documents, certificates and statements
furnished to the Lenders for use in connection with the transactions
contemplated hereby.
4.08 USE OF PROCEEDS; MARGIN REGULATIONS. (a) All proceeds of
the Loans shall be used by the Borrower to (i) finance the Acquisition, (ii)
fund the development of Helicon Network Solutions and (iii) pay the Transaction
Fees and Expenses.
(b) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor the
use of the proceeds thereof will violate or be inconsistent with the provisions
of Regulation T, U or X of the Board of Governors of the Federal Reserve System.
4.09 TAX RETURNS AND PAYMENTS. The Borrower and each of its
Subsidiaries has timely filed or caused to be timely filed (including pursuant
to any valid extensions of time for filing) with the appropriate taxing
authority, all material returns, statements, forms and reports for taxes (the
"Returns") required to be filed by or with respect to the income, properties or
operations of the Borrower or such Subsidiary of the Borrower. The Returns
accurately reflect in all material respects all liability for taxes of the
Borrower or such Subsidiary of the Borrower as a whole for the periods covered
thereby. Each of the Borrower and its Subsidiaries has paid all material taxes
payable by it which have become due other than those contested in good faith and
for which adequate reserves have been established in accordance with generally
accepted accounting principles. There is no material action, suit, proceeding,
investigation, audit, or claim now pending or, to the best knowledge of the
Borrower and any of its Subsidiaries, threatened by any authority regarding any
taxes relating to the Borrower or any of its Subsidiaries. As of the Initial
Funding Date, neither the Borrower nor any of its Subsidiaries has entered into
an agreement or waiver or has been requested to enter into an agreement or
waiver extending any statute of limitations relating to the payment or
collection of taxes of the Borrower or any of its Subsidiaries, or is aware of
any circumstances that would cause the taxable years or other taxable periods of
the Borrower or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations. Neither the Borrower nor any of its
Subsidiaries has provided, with respect
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to itself or property held by it, any consent under Section 341 of the Code.
Neither the Borrower nor any of its Subsidiaries has incurred, or will incur,
any material tax liability in connection with the Transaction or any other
transactions contemplated hereby (it being understood that the representation
contained in this sentence does not cover any future tax liabilities of the
Borrower or any of its Subsidiaries arising as a result of the operation of
their businesses in the ordinary course of business).
4.10 COMPLIANCE WITH ERISA. SCHEDULE 4.10 sets forth each
Plan; each Plan (and each related trust, insurance contract or fund) is in
substantial compliance with its terms and with all applicable laws, including,
without limitation, ERISA and the Code; each Plan (and each related trust, if
any) which is intended to be qualified under Section 401(a) of the Code has
received a determination letter from the Internal Revenue Service to the effect
that it meets the requirements of Sections 401(a) and 501(a) of the Code;
neither the Borrower nor any Subsidiary of the Borrower nor any ERISA Affiliate
has ever maintained or contributed to (or had an obligation to contribute to)
any Plan subject to Section 302 or Title IV of ERISA or Section 412 of the Code;
all contributions required to be made with respect to a Plan have been timely
made; neither the Borrower nor any Subsidiary of the Borrower nor any ERISA
Affiliate has incurred any material liability (including any indirect,
contingent or secondary liability) to or on account of a Plan pursuant to
Section 409, or 502(i) or 502(l), of ERISA or Section 4975 of the Code or
expects to incur any such liability under any of the foregoing sections with
respect to any Plan; no condition exists which presents a material risk to the
Borrower or any Subsidiary of the Borrower or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; no action, suit, proceeding, hearing, audit or investigation
with respect to the administration, operation or the investment of assets of any
Plan (other than routine claims for benefits) is pending, expected or
threatened; each group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) which covers or has covered employees or former
employees of the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
has at all times been operated in compliance with the provisions of Part 6 of
subtitle B of Title I of ERISA and Section 4980B of the Code; and the Borrower
and its Subsidiaries may cease contributions to or terminate any employee
benefit plan maintained by any of them without incurring any material liability.
4.11 REPRESENTATIONS AND WARRANTIES IN DOCUMENTS. All
representations and warranties set forth in the Documents and their
corresponding annexes, exhibits and schedules are true in all material respects
at the time as of which such representations and warranties were made and on the
Initial Funding Date.
4.12 PROPERTIES. All Real Property owned by the Borrower or
any of its Subsidiaries and all material Leasehold Properties leased by the
Borrower or its Subsidiaries, in each case as of the Initial Funding Date, and
the nature of the interest therein, is correctly set forth in SCHEDULE 4.12.
Each of the Borrower and its Subsidiaries has good and merchantable title to all
properties owned by it, (including all Real Property reflected in SCHEDULE 4.12
and in the financial statements (including the consolidated PRO FORMA balance
sheet referred to in Section 4.05(a)) (except as sold or otherwise disposed of
since the dates of such financial statements in the ordinary course of business
or as permitted by Section 6.02), free and clear of all Liens, other than (i) as
referred to in such financial statements (including said consolidated PRO FORMA
balance
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sheet) or in the notes thereto, (ii) as otherwise permitted by Section 6.01 or
(iii) the mortgage on the Borrower's office building in Danville, Vermont
securing the Borrower's obligations to Passumpsic Savings Bank. Substantially
all of the assets of the Borrower and its Subsidiaries on a consolidated basis
are owned by the Borrower.
4.13 CAPITALIZATION. On the Initial Funding Date, after giving
effect to the Transaction, the partnership interests of the Borrower shall be as
set forth on SCHEDULE 4.13. No partner of the Borrower is in default of any of
its obligations under the Borrower's partnership agreement. All of such
outstanding interests have been duly and validly issued, are fully paid and
nonassessable and are free of preemptive rights.
4.14 SUBSIDIARIES. On the Initial Funding Date, the
corporations, limited liability companies and partnerships listed on SCHEDULE
4.14 are the only Subsidiaries of the Borrower. SCHEDULE 4.14 correctly sets
forth, as of the Initial Funding Date, the percentage ownership (direct and
indirect) of the Borrower in each class of capital stock (or other equity
interests) of such Subsidiaries and also identifies the direct owner thereof. On
the Initial Funding Date, no Subsidiary of the Borrower has assets with a book
value or a fair market value of more than $10,000 except Helicon Network
Solutions which has assets with a book value of not less than $100,000.
4.15 COMPLIANCE WITH STATUTES, ETC. Each of the Borrower and
each of its Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except with respect to each of the
foregoing such noncompliance as could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the performance,
business, assets, nature of assets, liabilities, operations, properties,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole.
4.16 INVESTMENT COMPANY ACT. Neither the Borrower 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.
4.17 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower
nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
4.18 ENVIRONMENTAL MATTERS. (a) Each of the Borrower and each
of its Subsidiaries is in compliance with, in all respects, all applicable
Environmental Laws and the requirements of any permits issued under such
Environmental Laws except such noncompliances which, in the aggregate, could not
reasonably be expected to have a material adverse effect on the performance,
business, assets, nature of assets, liabilities, operations, properties,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole. There are no past, pending or, to the best
knowledge of the Borrower, threatened material Environmental Claims against the
Borrower or any of its Subsidiaries or any Real Property currently owned or
operated by the Borrower or any of its Subsidiaries. There are no facts,
circumstances,
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conditions or occurrences concerning the business or operations of the Borrower
or any of its Subsidiaries or any Real Property owned or operated at any time by
the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower any
property adjoining any such Real Property that could reasonably be expected (i)
to form the basis of an Environmental Claim against the Borrower or any of its
Subsidiaries or any Real Property owned or operated by the Borrower or any of
its Subsidiaries or (ii) to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such Real
Property under any Environmental Law except such Environmental Claims and
restrictions which individually or in the aggregate could not reasonably be
expected to have a material adverse effect on the performance, business, assets,
nature of assets, liabilities, operations, properties, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
(b) Neither the Borrower nor any of its Subsidiaries has, at
any time, generated, used, treated, stored, transported or released Hazardous
Materials on, to or from any Real Property at any time owned, leased or at any
time operated by the Borrower or any of its Subsidiaries; except for such
Hazardous Material of a type and in a quantity used in the normal course of
business of the Borrower or its Subsidiaries, which Hazardous Material is being
held, used, stored and disposed of, in all material respects, in compliance with
applicable Environmental Laws.
4.19 LABOR RELATIONS. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a material adverse effect on the Borrower and its Subsidiaries
taken as a whole. There is (i) no significant unfair labor practice complaint
pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, threatened against any of them, before the National
Labor Relations Board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, threatened against any of them and (ii) no
significant strike, labor dispute, slowdown or stoppage pending against the
Borrower or any of its Subsidiaries or, to the best knowledge of the Borrower,
threatened against the Borrower or any of its Subsidiaries.
4.20 PATENTS, LICENSES, FRANCHISES AND FORMULAS. (a) The
Borrower, together with its Subsidiaries, has a license to use or otherwise has
the right to use all the material patents, patent applications, trademarks,
service marks, trade names, trade secrets, copyrights, proprietary information,
computer programs, data bases, licenses, franchises and formulas, or rights with
respect to the foregoing (including, without limitation, those necessary to the
operation of the CATV Systems) (collectively, "Intellectual Property"), free and
clear of pending or threatened Liens, except for Liens existing under or by
reason of the Senior Debt Documents, and has obtained all licenses and other
rights of whatever nature, necessary for the present conduct of its business,
without any known conflict with the rights of others which, or the failure to
obtain which, as the case may be, could reasonably be expected to have a
material adverse effect on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole.
(b) The Borrower, together with its Subsidiaries, has the
right to practice under and use all of its Intellectual Property.
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(c) Neither the Borrower nor any of its Subsidiaries has
knowledge of any claim by any third party contesting the validity,
enforceability, use or ownership of the Intellectual Property, or of any
existing state of facts that would support a claim that use by the Borrower or
any of its Subsidiaries of any such Intellectual Property has infringed or
otherwise violated any Intellectual Property right of any other Person and that
to the best knowledge of the Borrower and its Subsidiaries no claim is
threatened except for such claims that could not individually or in the
aggregate reasonably be expected to have a material adverse affect on the
performance, business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole.
4.21 EXISTING INDEBTEDNESS. SCHEDULE 4.21 sets forth a true
and complete list of all Indebtedness (other than the Loans) of the Borrower and
each of its Subsidiaries as of the Initial Funding Date after giving effect to
the Transaction and the other transactions contemplated hereby (the "Existing
Indebtedness"), in each case showing the aggregate amount thereof and the name
of the respective obligor and any other entity which directly or indirectly
guaranteed such debt. None of the Existing Indebtedness was incurred in
connection with, or in contemplation of, the Transaction.
4.22 RESTRICTIONS ON OR RELATING TO SUBSIDIARIES. There does
not exist any encumbrance or restriction on the ability of (i) the Borrower or
any Subsidiary thereof to pay dividends or make any other distributions on its
capital stock or any other interest or participation in its profits, or to pay
any Indebtedness, (ii) any Subsidiary of the Borrower to make loans or advances
to any other Subsidiary of the Borrower or (iii) the Borrower or any Subsidiary
thereof to transfer any of its properties or assets to the Borrower or any
Subsidiary thereof, except for such encumbrances or restrictions existing under
or by reason of (w) applicable law, (x) this Agreement and the other Loan
Documents, (y) customary provisions restricting subletting or assignment of any
lease governing a leasehold interest of the Borrower or any of its Subsidiaries,
and (z) Senior Debt.
4.23 THE TRANSACTION. All aspects of the Transaction have been
effected in accordance with the Documents and all applicable law. At the time of
consummation thereof, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to consummate the
Transaction shall have been obtained, given, filed or taken and are in full
force and effect (or effective judicial relief with respect thereto has been
obtained). Additionally, at the time of consummation thereof, there does not
exist any judgment, order or injunction prohibiting or imposing material adverse
conditions upon the consummation of the Transaction, and there does not exist
any judgment, order or injunction prohibiting or imposing any material adverse
condition upon the Loans or the performance by the Borrower or any of its
Subsidiaries of its obligations under the Documents.
4.24 MATERIAL CONTRACTS. All Material Contracts of the
Borrower and each of its Subsidiaries as of the Initial Funding Date are listed
on SCHEDULE 4.24 hereto.
4.25 YEAR 2000 REPROGRAMMING. All Information Systems and
Equipment are either Year 2000 Compliant, or any reprogramming, remediation, or
any other corrective action, including the internal testing of all such
Information Systems and Equipment, will be completed
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by September 30, 1999. Further, to the extent that such
reprogramming/remediation and testing action is required, the cost thereof, as
well as the cost of the reasonably foreseeable consequences of failure to become
Year 2000 Compliant, to the Borrower and its Subsidiaries (including, without
limitation, reprogramming errors and the failure of other systems or equipment)
could not reasonably be expected to (x) result in a Default or an Event of
Default or (y) have a material adverse effect on the performance, business,
assets, nature of assets, liabilities, operations, properties, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole.
4.26 FCC AND COPYRIGHT MATTERS. Each of the Borrower and its
Subsidiaries (a) has duly and timely filed all cable television registration
statements and other filings that are required to be filed by the Borrower and
each of its Subsidiaries under the Communications Act, the failure to file of
which could reasonably be expected to have a Material Adverse Effect, and (b) is
complying in all material respects with the Communications Act, including,
without limitation, the rules, regulations and published policies of the FCC
relating to the transmission of television, cable and microwave signals, a
violation of which could reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any of its Subsidiaries has any knowledge that
it has not recorded or deposited with and paid to the United States Copyright
Office, the Register of Copyrights and the Copyright Royalty Tribunal all
material notices, statements of account, royalty fees and other documents and
instruments required under the Copyright Act, and, to the knowledge of the
Borrower, neither the Borrower nor any of its Subsidiaries is liable in any
material respect to any Person for copyright infringement under the Copyright
Act as a result of its business operations. Each of the Borrower and its
Subsidiaries has filed or caused to be filed with the FCC all reports,
applications, documents, instruments and information required to be filed
pursuant to all FCC rules, regulations and requests the failure to file of which
could reasonably be expected to have a Material Adverse Effect.
4.27 NO EMPLOYMENT AGREEMENTS. On the Initial Funding Date,
neither the Borrower nor any of its Subsidiaries shall be party to or bound by,
or have any direct, indirect or contingent obligations under, any employment
agreement or other agreement relating to the services of any director, officer
or employee of the Borrower or any such Subsidiary.
SECTION 5. AFFIRMATIVE COVENANTS. The Borrower covenants and
agrees that on and after the Effective Date and until the Loans and Notes,
together with interest, and all other Obligations, are paid in full and for so
long as the Commitment is outstanding:
5.01 INFORMATION COVENANTS. The Borrower shall furnish to each
Lender:
(a) MONTHLY REPORTS. Within 30 days after the end of each
fiscal month the consolidated and consolidating monthly cash flow, the
number of homes passed and the number of subscribers broken down by
system for the period from the beginning of the current fiscal year to
the end of such month, all in form and substance reasonably
satisfactory to the Lenders.
(b) QUARTERLY FINANCIAL STATEMENTS. On the earlier to occur of
(x), the date of the filing of the Borrower's Form 10-Q Report with the
SEC for or (y) the date occurring 45 days after the close of, each of
the first three quarterly accounting periods in each fiscal
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year of the Borrower, the consolidated and consolidating balance sheets
of the Borrower and its Subsidiaries as at the end of such quarterly
period and the related consolidated and consolidating statements of
earnings and stockholders' equity and statement of cash flows for such
quarter, in each case for such quarterly period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
period, in each case setting forth comparative figures for the related
periods in the prior fiscal year and comparable budgeted figures for
such period, all of which shall be certified by the chief financial
officer or controller of the Borrower, subject to normal year-end audit
adjustments and shall be accompanied by a management discussion and
analysis of the results of operations and financial condition with
respect to such period.
(c) ANNUAL FINANCIAL STATEMENTS. On the earlier to occur of
(x) the date of the filing of the Borrower's Form 10-K Report with the
SEC for or (y) the date occurring 90 days after the close, of each
fiscal year of the Borrower, the consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as at the end of such
fiscal year and the related consolidated and consolidating statements
of earnings and stockholders' equity and statement of cash flows for
such fiscal year and setting forth comparative figures for the
preceding fiscal year and comparable budgeted figures for such period
and certified, (x) in the case of the consolidating statements by the
chief financial officer of the Borrower and (y) in the case of the
consolidated financial statements of the Borrower and its Subsidiaries,
by any of the "big five" or other independent certified public
accountants of recognized national standing reasonably acceptable to
the Required Lenders, together with a signed opinion of such accounting
firm (which opinion shall not be qualified in any respect) stating that
in the course of its regular audit of the financial statements of the
Borrower, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm obtained no knowledge
of any Default or Event of Default or default or event of default under
any Senior Debt Document which has occurred and is continuing or, if in
the opinion of such accounting firm such a Default or Event of Default
or default or event of default under any Senior Debt Document has
occurred and is continuing, a statement as to the nature thereof and
shall be accompanied by a management discussion and analysis of the
results of operations and financial condition with respect to such
period.
(d) MANAGEMENT LETTERS. Promptly after the receipt thereof by
the Borrower or any Subsidiary of the Borrower, a copy of any
"management letter" received by the Borrower or such Subsidiary from
its certified public accountants.
(e) BUDGETS. As soon as available but in no event later than
60 days after the first day of each fiscal year of the Borrower, a copy
of the plan and forecast (including a projected consolidated income
statement and funds flow statement) of the Borrower for such fiscal
year.
(f) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Section 5.01(a), (b) and (c), a
certificate of the chief financial officer, of the Borrower to the
effect that no Default or Event of Default or default or event of
default under any Senior Debt Document has occurred and is continuing
or, if any Default or Event of Default or default or event of default
under any Senior Debt
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Document has occurred and is continuing, specifying the nature and
extent thereof, which certificate, in the case of certificates
delivered pursuant to Section 5.01(b) or (c), shall set forth the
calculations required to establish whether the Borrower was in
compliance with the provisions of Sections 6.02, 6.04, 6.06 through
6.08, inclusive, at the end of such fiscal quarter or year, as the case
may be.
(g) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any
event within two Business Days after an officer of any of the Borrower
or its Subsidiaries obtains knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or Event of Default
or default or event of default under any Senior Debt Document, (ii) any
litigation or governmental investigation or proceeding pending (x)
against any of the Borrower or its Subsidiaries which could reasonably
be expected to materially and adversely affect the performance,
business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole or (y) with respect to
any Document, (iii) the receipt by the Borrower or any Subsidiary of
the Borrower of any notice from any Governmental Authority of the
expiration without renewal, termination, material modification or
suspension of, or institution of any proceedings to terminate,
materially modify, or suspend, any CATV Franchise, FCC License or other
license granted by any Governmental Authority now or hereafter held by
the Borrower or any Subsidiary the lack of which could reasonably be
expected to have a Material Adverse Effect, and (iv) any other event
which could reasonably be expected to materially and adversely affect
the performance, business, assets, nature of assets, liabilities,
operations, properties, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole.
(h) OTHER REPORTS AND FILINGS. Promptly upon transmission
thereof, copies of any financial information, proxy materials and other
information and reports, if any, which any of the Borrower or its
Subsidiaries (x) has filed with the Securities and Exchange Commission
or any successor thereto (the "SEC") or (y) has delivered to holders
of, or any agent or trustee with respect to, Indebtedness (including
the holders of any Senior Debt) of the Borrower or such Subsidiary of
the Borrower in its capacity as such a holder, agent, or trustee.
(i) ENVIRONMENTAL MATTERS. Promptly upon, and in any event
within two Business Days after an officer of the Borrower or any of its
Subsidiaries obtains knowledge thereof, notice of any of the following
environmental matters: (i) any pending or threatened material
Environmental Claim against the Borrower or any of its Subsidiaries,
any Real Property owned or operated by the Borrower or any of its
Subsidiaries; (ii) any condition or occurrence on or arising from any
Real Property owned or operated at any time by any of the Borrower or
any of its Subsidiaries that (A) could reasonably be anticipated to
result in a material noncompliance by the Borrower or such Subsidiary
of the Borrower with any applicable Environmental Law, or (B) could
reasonably be anticipated to form the basis of a material Environmental
Claim against the Borrower or such Subsidiary of the Borrower or any
Real Property owned or operated by the Borrower or such Subsidiary of
the Borrower; (iii) any condition or occurrence on any Real Property
owned or operated by the Borrower or any of its Subsidiaries or any
property
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adjoining such Real Property that could reasonably be anticipated to
cause such Real Property to be subject to any material restrictions on
the ownership, occupancy, use or transferability of such Real Property
under any Environmental Law; and (iv) the taking of any removal or
remedial action in response to a material Release or material
threatened Release or the actual or alleged presence of any Hazardous
Material on or from any Real Property owned or operated at any time by
the Borrower or any of its Subsidiaries in each case as required by any
Environmental Law or any governmental or other administrative agency.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and the response of the Borrower or such Subsidiary of the
Borrower thereto. In addition, Borrower will provide the Lenders with
copies of all material non-privileged communications with any
government or governmental agency relating to Environmental Claims, all
material communications with any person relating to material
Environmental Claims, and such detailed reports of any material
Environmental Claim as may reasonably be requested by the Required
Lenders.
(j) SENIOR DEBT DOCUMENT NOTICES. Simultaneously upon delivery
under any Senior Debt Document, a copy of any notice of default
furnished by any party pursuant to any Senior Debt Document.
(k) FCC AUTHORIZATIONS AND CORRESPONDENCE. Promptly upon the
request of any Lender copies of all material amendments or renewals of
material franchises, licenses, consents, approvals and authorizations
granted or issued by any Governmental Authority, necessary and
appropriate to operate the CATV Systems and of any other material
communications between the Borrower or any Subsidiary and the FCC or
any other Governmental Authority having jurisdiction over the Borrower
or such Subsidiary.
(l) OTHER INFORMATION. From time to time, such other
information or documents (financial or otherwise) with respect to the
Borrower or any of its Subsidiaries, as any Lender may reasonably
request.
5.02 BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries, in conformity with United States
generally accepted accounting principles and all requirements of law, shall be
made of all dealings and transactions in relation to its business and
activities. The Borrower shall, and shall cause each of its Subsidiaries to,
permit officers and designated representatives of any Lender to visit and
inspect, under guidance of officers of the Borrower or such Subsidiaries, any of
the properties of the Borrower or its Subsidiaries, and to examine the books of
account the Borrower or its Subsidiaries and discuss the affairs, finances and
accounts of the Borrower or its Subsidiaries with, and be advised as to the same
by, its and their officers, all at such reasonable times and intervals and to
such reasonable extent as such Lender may request.
5.03 MAINTENANCE OF PROPERTY, INSURANCE. SCHEDULE 5.03 sets
forth a true and complete listing of all insurance maintained by the Borrower
and each of its Subsidiaries as of the Effective Date. The Borrower will, and
will cause each of its Subsidiaries to, (i) keep all material property useful
and necessary in its business in good working order and condition
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(ordinary wear and tear excepted), (ii) maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks as are described on SCHEDULE 5.03 and
(iii) furnish to each Lender, upon written request, full information as to the
insurance carried.
5.04 CORPORATE FRANCHISES. The Borrower shall, and shall cause
each of its Subsidiaries to, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises licenses and patents; PROVIDED, HOWEVER, that nothing in this
Section 5.04 shall prevent the withdrawal of any such Person of its
qualification as a foreign corporation in any jurisdiction where such withdrawal
could not reasonably be expected to have a material adverse effect on the
performance, business, assets, nature of assets, liabilities, properties,
operations, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole.
5.05 COMPLIANCE WITH STATUTES, ETC. The Borrower shall, and
shall cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property except such noncompliance as could
not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole.
5.06 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) The Borrower
shall, and shall cause each of its Subsidiaries to, comply, in all material
respects, with all Environmental Laws applicable to the ownership or use of all
the Real Property, and shall promptly pay, or cause its Subsidiaries to promptly
pay all costs and expenses incurred in such compliance, and will keep or cause
to be kept the Borrower's or its Subsidiaries' interest in all owned Real
Properties free and clear of any Liens imposed pursuant to such Environmental
Laws imposed in connection with their ownership or use. Neither the Borrower nor
any of its Subsidiaries will generate, use, treat, store, release or dispose of,
or permit the generation, use, treatment, storage, Release or disposal of
Hazardous Materials on any Real Property, or transport or permit the
transportation of Hazardous Materials to or from any Real Property other than in
the normal course of business in compliance with applicable law. If required to
do so under any applicable directive or order of any governmental agency, the
Borrower agrees to undertake, and cause each of its Subsidiaries to undertake,
any clean up, removal, remedial or other action necessary to remove and clean up
any Hazardous Materials from any Real Property owned, leased or operated by the
Borrower or any of its Subsidiaries in accordance with, in all material
respects, such orders and directives of all governmental authorities, except to
the extent that the Borrower or such Subsidiary is contesting such order or
directive in good faith and by appropriate proceedings and for which adequate
reserves have been established to the extent required by GAAP; provided that it
will not constitute a breach of this Section 5.06 if a Person other than the
Borrower and its Subsidiaries takes such action on behalf of the Borrower and
its Subsidiaries.
(b) At the request of the Required Lenders at any time and
from time to time during the existence of this Agreement: (i) if an Event of
Default exists under this Agreement, (ii) upon the reasonable belief by the
Required Lenders that the Borrower or any of its Subsidiaries has breached any
representation or covenant herein with respect to any
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environmental matters and such breach is continuing, or (iii) in the event
notice is provided under Section 5.01(i) herein, the Borrower shall provide, at
its sole cost and expense, an environmental site assessment report concerning
any of its or its Subsidiaries' Real Property, prepared by an environmental
consulting firm approved by the Required Lenders, indicating the presence or
Release, if any, of Hazardous Materials on or from any of the Real Property and
the potential cost of any removal or remedial action required by any
Environmental Laws in connection with any Hazardous Materials on such Real
Property. If the Borrower fails to provide the same after 30 days' notice or as
soon thereafter as is reasonably possible, the Required Lenders may order the
same, and the Borrower shall grant and hereby grants to the Lenders and their
agents access to such Real Property and specifically grants to the Lenders an
irrevocable non-exclusive license to undertake such an assessment all at the
Borrower's expense, which assessments, if obtained, will be provided to the
Borrower.
5.07 ERISA. As soon as possible and, in any event, within ten
(10) days after the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate knows or has reason to know of the occurrence of any of the following,
the Borrower will deliver to each of the Lenders a certificate of the chief
financial officer of the Borrower setting forth the full details as to such
occurrence and the action, if any, that the Borrower, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed by the Borrower, such Subsidiary,
the Plan administrator or such ERISA Affiliate to or with any governmental
agency, or a Plan participant and any notice received by the Borrower, such
Subsidiary or ERISA Affiliate from any government agency, or a Plan participant,
the Plan administrator with respect thereto that any contribution required to be
made with respect to a Plan has not been timely made; that the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate will or may incur any
liability (including any indirect, contingent, or secondary liability) with
respect to a Plan under Section 4975 of the Code or Section 409 or 502(i) or
502(l) of ERISA or with respect to a group health plan (as defined in Section
607(l) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code; or that the Borrower or any Subsidiary of the Borrower may incur any
material liability pursuant to any employee welfare benefit plan (as defined in
Section 3(l) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any Plan.
The Borrower will deliver to each of the Lenders a complete copy of the annual
report (on Internal Revenue Service Form 5500-series) of each Plan (including,
to the extent required, the related financial statements and opinions and other
supporting statements, certifications, schedules and information) required to be
filed with the Internal Revenue Service. In addition to any certificates or
notices delivered to the Lenders pursuant to the first sentence hereof, copies
of annual reports and any records, documents or other information required to be
furnished to any government agency, and any material notices received by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate with respect to
any Plan shall be delivered to the Lenders no later than ten (10) days after the
date such annual report has been filed with the Internal Revenue Service or such
records, documents and/or information has been furnished to any government
agency or such notice has been received by the Borrower, the Subsidiary or the
ERISA Affiliate, as applicable.
5.08 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will
cause its, and each of its Subsidiaries', fiscal years to end on December 31 of
each year and each of its, and each of
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its Subsidiaries', four fiscal quarters to end on March 31, June 30, September
30 and December 31 of each year.
5.09 PAYMENT OF TAXES. The Borrower shall, and shall cause
each of its Subsidiaries to, pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties would
otherwise attach thereto, and all lawful claims which, if unpaid, might become a
lien or charge upon any properties of any of its Subsidiaries not otherwise
permitted under Section 6.01; PROVIDED, HOWEVER, that neither the Borrower nor
any of its Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper
proceedings if it has maintained adequate reserves with respect thereto in
accordance with generally accepted accounting principles.
5.10 USE OF PROCEEDS, MARGIN REGULATIONS. (a) The Borrower
shall use all proceeds of the Loans as provided in Section 4.08(a).
(b) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor the
use of the proceeds thereof will violate or be inconsistent with the provisions
of the Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
5.11 YEAR 2000 COMPLIANCE. The Borrower will ensure that its
Information Systems and Equipment are at all times after September 30, 1999 Year
2000 Compliant, except insofar as the failure to do so could not reasonably be
expected to have a Material Adverse Effect, and shall notify each Lender
promptly upon detecting any failure of the Information Systems and Equipment to
be Year 2000 Compliant. In addition, the Borrower shall provide each Lender with
such information about its year 2000 computer readiness (including, without
limitation, information as to contingency plans, budgets and testing results) as
such Lender shall reasonably request.
5.12 OBSERVATION OF BOARD OF DIRECTORS. In the event that any
holder of debt securities or equity securities of the Borrower (other than
Theodore Baum, Ruth Baum or David Baum) is granted the right to attend any Board
of Directors meeting or meeting of a similar body of the Borrower or its general
partner, then PCF shall be entitled to designate one individual (the "Observer")
to attend all such meetings. The Observer shall be entitled to receive all
reports, presentations and materials, as if the Observer were a member of the
Board of Directors, all at the expense of the Borrower. The Borrower agrees to
give the Observer prior written notice of all meetings of the Board of Directors
of the Borrower promptly after the scheduling thereof and in any event no later
than five (5) Business Days prior to such meeting, or if such meeting is
scheduled less than five (5) Business Days in advance, on the date preceding the
date for which such meeting has been scheduled.
5.13 INTELLECTUAL PROPERTY RIGHTS. The Borrower will, and will
cause each of its Subsidiaries to maintain in full force and effect all
Intellectual Property rights necessary or appropriate to the business of the
Borrower or any Subsidiary of the Borrower and take no action (including,
without limitation, the licensing of Intellectual Property), or fail to take an
action, as
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the case may be, in connection with such Intellectual Property rights which
could reasonably be expected to result in a material adverse effect on the
performance, business, assets, nature of assets, liabilities, properties,
operations, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole. The Borrower shall, and shall cause each of
its Subsidiaries to, diligently prosecute all pending applications filed in
connection with seeking the Intellectual Property rights and take all other
reasonable actions necessary for the protection and maintenance of the
Intellectual Property rights necessary or appropriate to the business of the
Borrower or any Subsidiary of the Borrower at all times from and after the
Initial Funding Date other than any such actions the failure of which, in the
aggregate, could not reasonably be expected to have a material adverse effect on
the performance, business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole.
5.14 OWNERSHIP OF SUBSIDIARIES. The Borrower shall, at all
times, unless otherwise expressly permitted by Section 6.02, indirectly own,
except as set forth on SCHEDULE 4.14, 100% of the capital stock and stock
equivalents of each of the Subsidiaries; provided that if the Borrower
indirectly owns less than 99% of the capital stock and stock equivalents of any
such Subsidiary on the Effective Date, the Borrower shall maintain, at least,
its percentage of the capital stock and stock equivalents of such Subsidiary as
of the Effective Date as is set forth on SCHEDULE 4.14.
5.15 CORPORATE SEPARATENESS. HPIAC and the Borrower will take,
and will cause each of their respective Subsidiaries to take, all such action as
is necessary to keep the operations of the Borrower and its Subsidiaries
separate and apart from those of HPIAC and its Subsidiaries including, without
limitation, ensuring that all customary corporate formalities, including the
maintenance of corporate records and holding regular meetings of members and
directors are followed. No bank account of the Borrower or any of its
Subsidiaries shall be commingled with any bank account of HPIAC or any of its
Subsidiaries. Any financial statements distributed to any creditors of HPIAC or
any of its Subsidiaries shall clearly establish the corporate separateness of
such Persons from the Borrower and its Subsidiaries. None of HPIAC or any of its
Subsidiaries shall take any action, or conduct its affairs in a manner, which is
likely to result in the corporate existence of the Borrower or any of its
Subsidiaries on the one hand and of HPIAC or any of its Subsidiaries on the
other hand being disregarded, or in the assets and liabilities of the Borrower
or any of its Subsidiaries being substantively consolidated with those of HPIAC
or any of its Subsidiaries in a bankruptcy, reorganization or other insolvency
proceeding. Notwithstanding anything to the contrary contained in this Section
5.15, with respect to the Boone, NC System, the Borrower may keep its operations
together with HPIAC, including, without limitation, keeping monthly collections
from customers in one central lockbox.
5.16 CONDUCT OF BUSINESS; MAINTENANCE OF LICENSES. The
Borrower will and will cause each Subsidiary to: (i) carry on and conduct its
business in the ordinary course in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted; (ii)
do all things necessary to remain duly organized, validly existing and in good
standing as a domestic limited liability company, partnership, or corporation in
its jurisdiction of organization and maintain all requisite authority to conduct
its business in each jurisdiction in
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which the failure to maintain such authority could reasonably be expected to
have a Material Adverse Effect; (iii) preserve its tax status as a limited
partnership under the Code and other applicable law; and (iv) do all things
necessary to renew, extend and continue in effect all permits, licenses and
authorizations which may at any time and from time to time be necessary to
operate the CATV Systems in compliance with all applicable laws and regulations,
the failure to comply with which could reasonably be expected to have a Material
Adverse Effect.
SECTION 6. NEGATIVE COVENANTS. The Borrower hereby covenants
that on and after the Effective Date and until the Loans and Notes, together
with interest and all other Obligations incurred hereunder and thereunder, have
been paid in full and the Commitment is no longer outstanding:
6.01 LIENS. The Borrower shall not, and shall not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
or with respect to any of their respective property or assets (real or personal,
tangible or intangible), whether now owned or hereafter acquired, or sell any
such property or assets subject to an understanding or agreement, contingent or
otherwise, to repurchase such property or assets (including sales of accounts
receivable with recourse to the Borrower or any of its Subsidiaries), or assign
any right to receive income or permit the filing of any financing statement
under the UCC or any other similar notice of Lien under any similar recording or
notice statute; PROVIDED, HOWEVER, that the provisions of this Section 6.01
shall not prevent the Borrower or any of its Subsidiaries from creating,
incurring, assuming or permitting Liens set forth in Section 7.2(i) through
7.2(ix) of the Credit Agreement as in effect on the date hereof without giving
effect to any waivers thereto (Liens described in said Section 7.2 of the Credit
Agreement are herein referred to as "Permitted Liens").
6.02 CONSOLIDATION, MERGER, PURCHASE OR SALE OF ASSETS, ETC.
The Borrower shall not, and shall not permit any of its Subsidiaries to, (i)
wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of
merger or consolidation, (iii) convey, sell, lease or otherwise dispose of (or
agree to do any of the foregoing at any future time) all or any part of its
property or assets, including without limitation assets consisting of capital
stock of a Subsidiary thereof or stock equivalents, (iv) enter into any
partnerships, joint ventures or sale-leaseback transactions, or (v) purchase,
lease or otherwise acquire (in one or a series of related transactions) any part
of the property or assets of any Person, or make or maintain any loan, extension
of credit or advance to any Person, or own or purchase or otherwise acquire any
capital stock or equity interests or obligations of or other securities of any
Person, or otherwise make any other investment or capital contribution in any
Person, except that the following shall be permitted:
(A) purchases or other acquisitions by the Borrower and its
Subsidiaries of inventory, materials and equipment in the ordinary
course of business;
(B) capital expenditures permitted by the Credit Agreement (as
in effect on the date hereof);
(C) so long as there shall exist no Default or Event of
Default, the Borrower and its Subsidiaries may sell assets so long as
the amount of Net Sale Proceeds from such sales in any one fiscal year
does not exceed $200,000 in the aggregate and such proceeds
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are used, or irrevocably committed to be used, to purchase, within 360
days from the date of sale, assets to be used in the business of the
Borrower or its Subsidiaries;
(D) the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business so long as
such leases are not Capitalized Lease Obligations;
(E) the Borrower and its Subsidiaries may make and maintain
investments (1) consisting of receivables owing to any of them
(including, without limitation, through the indirect acquisition
thereof through a security interest), if created or acquired in the
ordinary course of business and payable or dischargeable in accordance
with customary terms, (2) in cash and Cash Equivalents, (3) in Rate
Hedging Agreements entered into pursuant to the requirements of the
Credit Agreement (as in effect on the date hereof), (4) consisting of
loans and advances in the ordinary course of business and consistent
with past practices to their respective employees for moving, travel
and emergency expenses and other similar expenses, so long as the
aggregate principal amount thereof at any one time outstanding
(determined without regard to any write-downs or write-offs of such
loans and advances) shall not exceed $200,000 and (5) consisting of
purchases or acquisitions of securities of trade creditors or customers
received in any plan of reorganization or similar arrangement on the
bankruptcy or insolvency of such trade creditors or customers or
received in settlement of delinquent obligations of, and other disputes
with, suppliers arising in the ordinary course of business;
(F) the Borrower and its Subsidiaries may sell inventory in
the ordinary course of business;
(G) the Transaction may be consummated in accordance with the
Documents;
(H) Dividends may be paid to the extent permitted by Section
6.03;
(I) each of the Borrower and its Subsidiaries may enter into
licensing arrangements with respect to Intellectual Property, in
accordance with customary past practice of the Borrower or such
Subsidiary (as the case may be);
(J) the Borrower may make investments consisting of capital
contributions in or purchases of the equity of Wholly-Owned
Subsidiaries to the extent the aggregate amount of such capital
contributions in and equity purchases of (without giving effect to any
write-downs or write-offs with respect thereto) all such Wholly-Owned
Subsidiaries does not exceed $100,000; provided, however, in the case
of Helicon Network Solutions the aggregate amount of such capital
contributions and equity purchases (without giving effect to any
write-downs or write-offs with respect thereto) shall not exceed
$7,000,000;
(K) so long as there shall exist no Default or Event of
Default (both before and after giving effect thereto), the sale of ISP
Assets so long as such assets are sold for cash and for fair market
value and the proceeds from such sale (a) of up to $7,000,000 are first
applied to repay all Indebtedness secured by the ISP Assets that was
paid as consideration in connection with the purchase of the ISP Assets
and, at the Borrower's option, to repay
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other Existing Indebtedness secured by the ISP Assets and any excess
thereof is used to purchase within 180 days of the receipt thereof
assets used in the Borrower's cable systems business and/or Helicon
Network Solutions and (b) in excess of $7,000,000 are applied in
accordance with Section 2.02(c);
(L) so long as there shall exist no Default or Event of
Default (both before and after giving effect thereto) the Borrower and
its Subsidiaries may sell for cash for a fair market value of at least
$1,200 per subscriber cable assets of up to 800 subscribers during the
period beginning on the Initial Funding Date and ending on December 31,
1999 so long as the proceeds therefrom are used to purchase within 180
days of receipt thereof assets used in the Borrower's cable systems
business;
(M) the Borrower and its Subsidiaries may make consulting
payments to Messrs. Thomas Gimbel, Gregory A. Kriser and Herbert
Roberts as long as the aggregate amount thereof does not exceed
$150,000 in any one fiscal year of the Borrower and there shall exist
no Default or Event of Default both before and after giving effect to
such payments; and
(N) so long as there shall exist no Default or Event of
Default (both before and after giving effect thereto) the Borrower and
its Subsidiaries may swap cable assets of up to 1,000 subscribers for
cable assets of other subscribers with a fair market value at least
equal to the fair market value of the cable assets being swapped by the
Borrower and its Subsidiaries at any time on or after the Effective
Date.
6.03 DIVIDENDS. The Borrower will not, nor will the Borrower
permit any of its Subsidiaries to, declare or pay any Dividends with respect to
the Borrower or any of its Subsidiaries, except any Dividends expressly
permitted pursuant to the terms of the Credit Agreement as in effect on the date
hereof.
6.04 INDEBTEDNESS. The Borrower shall not, nor shall it permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Loan Documents;
(ii) Senior Debt;
(iii) any Indebtedness of the Borrower expressly permitted
pursuant to the terms of the Credit Agreement as in effect on the date
hereof;
(iv) Indebtedness of the Borrower as set forth on SCHEDULE
4.21, including any refinancing, renewal or extension (other than
Indebtedness) thereof so long as the amount of Indebtedness is not
increased;
(v) Indebtedness of the Borrower evidenced by Capitalized
Lease Obligations and purchase money Indebtedness secured by Liens on
the assets purchased with the proceeds of such Indebtedness; PROVIDED
that the aggregate amount of Indebtedness evidenced by
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Capitalized Lease Obligations under all Capital Leases entered into
after the Initial Funding Date when aggregated with the amount of
purchase money Indebtedness incurred after the Initial Funding Date
shall not exceed $250,000; and
(vi) so long as there exist no Default or Event of Default at
the time of incurrence thereof (and after giving effect thereto),
additional Indebtedness of the Borrower in an aggregate principal
amount incurred after the date hereof not to exceed $250,000;
6.05 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any of its Subsidiaries to, be party to any transaction with an
Affiliate unless the terms and conditions relating thereto are as favorable to
the Borrower as those which would be obtainable at the time in a comparable
arms-length transaction with a Person other than an Affiliate, or permit any of
its Subsidiaries so to do; PROVIDED, HOWEVER, notwithstanding the foregoing, the
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any transaction or series of related transactions, whether or not in the
ordinary course of business with HPIAC, Helicon Corp. or any of their
Subsidiaries except as set forth on SCHEDULE 6.05. In no event may any
management, closing or similar fees be paid or payable by the Borrower or any of
its Subsidiaries to any Person except that so long as there shall exist no
Default or Event of Default up to $150,000 in any one fiscal year of the
Borrower of consulting payments to executives of the Borrower shall be permitted
as set forth in Section 6.02 (M) hereof and so long as there shall exist no
Default or Event of Default (both before after giving effect to such payments),
payments in accordance with the Management Contract may be made so long as in no
event shall such payments exceed 5% of the Borrower's Gross Revenues (as defined
in the Management Contract); provided that any management fees payable pursuant
to the Management Contract which are not permitted to be paid in accordance with
the provisions hereof may be permitted to be deferred to a date after the
payment in full in cash of all Obligations and shall be subordinated pursuant to
the Subordination Agreement.
6.06 LEVERAGE RATIO. The Borrower will not permit the Leverage
Ratio at any time during a period set forth below to be more than the ratio set
forth opposite such period below:
Period Ratio
------ -----
Initial Funding Date through 6.55:1.00
December 31, 1999
January 1, 2000 through 6.25:1.00
June 30, 2000
July 1, 2000 and thereafter 6.00:1.00
6.07 FIXED CHARGE COVERAGE RATIO. The Borrower will not permit
the Fixed Charge Coverage Ratio for any period of four consecutive fiscal
quarters, in each case taken as one accounting period, to be less than
1.00:1.00.
6.08 CAPITAL EXPENDITURES. The Borrower will not, and it will
not permit any of its Subsidiaries to, make any Capital Expenditures, except
that the Borrower and its Subsidiaries
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may make Capital Expenditures (a) consisting of the purchase of assets with the
proceeds from asset sales described in Sections 6.02(K) and 6.02(L) and (b)
other Capital Expenditures so long as the aggregate amount thereof under this
clause (b), in any fiscal year does not exceed the amount set forth opposite
such fiscal year below:
Fiscal Year Amount
----------- ------
1999 $12,400,000
2000 $10,000,000
2001 $10,000,000
6.09 RESTRICTIONS ON ADDITIONAL SUBORDINATED INDEBTEDNESS. The
Borrower will not create or suffer to exist any Indebtedness for borrowed money
which (i) provides that it is subordinate in right of payment to any Senior
Indebtedness and (ii) is senior in right of payment to or PARI PASSU with the
Loans or other Obligations and the Borrower will not permit any of its
Subsidiaries to create or suffer to exist any Indebtedness for borrowed money
which provides that it is subordinate in right of payment to any Senior
Indebtedness.
6.10 LIMITATION ON VOLUNTARY PAYMENTS AND MODIFICATIONS;
LIMITATION ON MODIFICATIONS OF CERTIFICATE OF INCORPORATION, BY-LAWS AND CERTAIN
OTHER AGREEMENTS; ETC. The Borrower shall not, and shall not permit its
Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption (including pursuant to
any change of control provision) or acquisition for value of
(including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of
paying when due), of any Indebtedness that is not Senior Indebtedness;
(ii) amend or modify, or permit the amendment or modification of
any provision of the Existing Indebtedness or any agreement relating to
any of the foregoing except for amendments to the Credit Agreement
which do not (i) decrease the average weighted-life to maturity of
Indebtedness under the Credit Agreement by more than six (6) months
from that in effect on the date hereof (calculated as if such amendment
was entered into on the date hereof and taking into account all
previous amendments) or (ii) increase the interest rate of Indebtedness
under the Credit Agreement to a rate in excess of the maximum interest
rates calculated from time to time permitted under Section 3.1 of the
Credit Agreement as such section is in effect on the date hereof, PLUS
2%;
(iii) amend, modify or change its Certificate of Limited
Partnership, Agreement of Limited Partnership, Articles of
Incorporation (including, without limitation, by the filing or
modification of any certificate of designation) or By-Laws (or similar
organizational documents), in a manner adverse to the Lenders or any
agreement entered into by it, with respect to its capital stock,
limited partnership interests and partnership interests or other equity
interest, or enter into any new agreement with respect to its capital
stock, limited partnership interests and partnership interests or other
equity interest;
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(iv) amend, modify or change, terminate, or enter into any new
Shareholders' Agreement, except for such amendments, modifications or
changes which are not in a manner adverse to the Lenders;
(v) amend, modify or change, terminate or enter into any new
Tax Sharing Agreement or amend, modify or change the Management
Contract; or
(vi) amend, modify or change, or enter into any new Management
Agreement, Employee Benefit Plan or Employment Agreement except if the
aggregate cost to the Borrower and its Subsidiaries as a result of such
amendments, modifications, changes to such plans and agreements and new
plans and agreements is not reasonably likely to have a material
adverse effect on the performance, business, property, assets, nature
of assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole.
6.11 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES. The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Person to (i) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (ii) make loans or advances to the Borrower or any Subsidiary of
the Borrower or (iii) transfer any of its properties or assets to the Borrower,
except for such encumbrances or restrictions existing under or by reason of (v)
applicable law, (w) this Agreement and the other Loan Documents, (x) the Credit
Agreement (as in effect on the date hereof) and, (y) customary provisions
restricting subletting or assignments of any lease governing a leasehold
interest of the Borrower or any other Subsidiary of the Borrower.
6.12 LIMITATION ON ISSUANCE OF CAPITAL STOCK. (a) The Borrower
shall not permit any of its Subsidiaries to issue any capital stock (including
by way of sales of treasury stock) or other ownership interests or any options
or warrants to purchase, or securities convertible into, capital stock or other
ownership interests, except (i) for transfers and replacements of then
outstanding interests, (ii) for stock splits, stock dividends and similar
issuances which do not decrease the percentage ownership of any Person in any
class of the capital stock or other ownership interests of the Borrower or such
Subsidiary or (iii) upon the formation of any new Subsidiary as permitted by
Section 6.14.
(b) The Borrower will not issue any capital stock, except for
issuances of partnership interests for cash where in all such cases, after
giving effect to such issuance, no Default or Event of Default would exist under
Section 7.08.
(c) The Borrower will make prepayments pursuant to Section
2.02(c) with cash proceeds derived from issuance of ownership interests pursuant
to this Section 6.12.
6.13 BUSINESS AND NAME CHANGES. The Borrower will not, and
permit any of its Subsidiaries to, change (directly or indirectly) in any
material respect the nature of its business as
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conducted on the Effective Date, or alter or modify its name, structure or
status from that in effect on the Effective Date.
6.14 LIMITATION ON CREATION OF SUBSIDIARIES. The Borrower will
not, and will not permit any Subsidiary to, establish, create or acquire any new
Subsidiary except that Wholly-Owned Subsidiaries of the Borrower may be formed
to the extent required for FCC regulatory purposes and Helicon Network
Solutions.
6.15 NO FURTHER NEGATIVE PLEDGES. Except (a) as otherwise
permitted by or under the terms of the Credit Agreement (as in effect on the
date hereof) and the Senior Indenture (as in effect on the date hereof), and (b)
with respect to specific property encumbered to secure payment of particular
Indebtedness permitted to be incurred by the terms hereof, the Borrower shall
not, and shall not permit any of its Subsidiaries to, enter into any agreement
prohibiting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired.
6.16 NO PENSION PLANS. Neither the Borrower nor any of its
Subsidiaries nor any ERISA Affiliate shall maintain or contribute to (or have or
incur any obligation to contribute to) any Plan subject to Section 302 or Title
IV of ERISA or Section 412 of the Code.
SECTION 7. EVENTS OF DEFAULT. Upon the occurrence of any of
the following specified events (each, an "Event of Default"):
7.01 PAYMENTS. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note or (ii) default, and such
default shall continue unremedied for two or more Business Days, in the payment
when due of any interest on any Loan or Note or any fees or other amounts owing
by it hereunder; or
7.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by the Borrower herein or in any other Loan Document, or in any
certificate delivered pursuant hereto or thereto, shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
7.03 COVENANTS. (a) The Borrower or any of its Subsidiaries
shall (i) default in the due performance or observance by it of any term,
covenant or agreement contained in Section 5.01(g)(i), 5.08, 5.15 or 6 and (ii)
default in the due performance or observance by it of any other term, covenant
or agreement contained in this Agreement and such default shall continue
unremedied for a period of 30 days after written notice to the Borrower by any
Lender; or (b) any Loan Party shall default in the due performance or observance
by it of any term, covenant or agreement contained in any other Loan Document
after any applicable notice provided for therein has been given or any lapse of
time provided for therein has occurred; or
7.04 DEFAULT UNDER OTHER AGREEMENTS. (i) The Borrower or any
of its Subsidiaries shall default (x) in any payment of any Indebtedness (other
than the Obligations) on the stated maturity thereof or (y) default in the
observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the
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effect of which default or other event or condition is to cause any such
Indebtedness to become due prior to its stated maturity; or (ii) any
Indebtedness of the Borrower or any of its Subsidiaries (other than the
Obligations) shall be declared to be due and payable prior to the stated
maturity thereof provided that it shall not constitute an Event of Default
pursuant to this Section 7.04 unless the aggregate amount of all Indebtedness
referred to in the preceding clauses (i) and (ii) above exceeds $1,000,000 at
any one time; or
7.05 BANKRUPTCY, ETC. The Borrower or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against the Borrower or any of its Subsidiaries and the petition is not
controverted within 10 days, or is not dismissed or discharged, within 60 days,
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of the Borrower or any of its Subsidiaries, or the Borrower or any of
its Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower or any of its Subsidiaries, or there is
commenced against the Borrower or any of its Subsidiaries any such proceeding
which remains undismissed or undischarged for a period of 60 days, or the
Borrower or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding is entered;
or the Borrower or any of its Subsidiaries suffers any appointment of any
custodian or the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; the Borrower or any of its
Subsidiaries makes a general assignment for the benefit of creditors; or any
corporate action is taken by the Borrower or any of its Subsidiaries for the
purpose of effecting any of the foregoing; or
7.06 ERISA. (a) A contribution required to be made with
respect to a Plan has not been timely made, the Borrower or any Subsidiary of
the Borrower or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code or on account of a group health plan (as
defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code, or the Borrower or any Subsidiary of the Borrower has
incurred or is likely to incur liabilities pursuant to one or more employee
welfare benefit plans (as defined in Section 3(1) of ERISA) that provide
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) any applicable law, rule or regulation is adopted,
changed or interpreted, or the interpretation or administration thereof is
changed, in each case after the date hereof, by any governmental authority or
agency or by any court (a "Change in Law"), or, as a result of a Change in Law,
an event occurs following a Change in Law, with respect to or otherwise
affecting any Plan; (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; and (c) such lien, security interest or
liability, individually, and/or in the aggregate, in the opinion of the Required
Lenders, has had, or could reasonably be expected to have, a material adverse
effect upon the business, operations, condition (financial or otherwise) or
prospects of the Borrower or any Subsidiary of the Borrower; or
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7.07 JUDGMENTS. One or more judgments or decrees shall be
entered against the Borrower or any of its Subsidiaries involving in the
aggregate for the Borrower and its Subsidiaries a liability (not paid or fully
covered by a reputable insurance company) in excess of $500,000 and all such
judgments or decrees shall not be satisfied, vacated, discharged or stayed or
bonded pending appeal for any period of 30 consecutive days; or
7.08 OWNERSHIP. There shall be a Change of Control; or
7.09 LICENSES. (a) Any license, franchise, permit, right,
approval or agreement of the Borrower or any of its Subsidiaries, is not
renewed, or is suspended, revoked or terminated and the non-renewal, suspension,
revocation or termination thereof would have a Material Adverse Effect; or
(b) Any license, authorization, consent or permit (including
without limitation, any CATV Franchise or FCC License) necessary for the
ownership or essential for the operation by the Borrower or any Subsidiary of
any CATV System shall expire, and on or prior to such expiration, the same shall
not have been renewed or replaced by another license, authorization, consent or
permit authorizing substantially the same operations of such CATV System; or
(ii) any license, authorization, consent or permit (including, without
limitation, any CATV Franchise or FCC License) necessary for the ownership or
essential for the operation of any CATV System shall be canceled, revoked,
terminated, rescinded, annulled, suspended or modified in a materially adverse
respect, or shall no longer be in full force and effect, or the grant or the
effectiveness thereof shall have been stayed, vacated, reversed or set aside,
and such action shall be no longer subject to further administrative or judicial
review; or (iii) the FCC shall have issued any hearing designation order in any
non-comparative license renewal proceeding or any license revocation proceeding
involving any license necessary for the ownership or essential for the operation
of any CATV Systems; or (iv) in any comparative (multiple applicant) license
renewal proceeding involving any license necessary for the ownership or
essential for the operation of any CATV System, any administrative law judge of
the FCC (or successor to the functions of an administrative law judge of the
FCC) shall have issued an initial decision to the effect that the Borrower or
any Subsidiary lacks the qualifications to own or operate such CATV System, and
such initial decision shall not have been timely appealed or shall otherwise
have become an order that is final and no longer subject to further
administrative or judicial review, (provided, however, that none of the
foregoing events described in clause (i), (ii), (iii) or (iv) of this Section
7.09 shall constitute a Default if, assuming the final and non-appealable loss
by the Borrower or any Subsidiary of any such license, authorization, consent or
permit at the conclusion of all legal proceedings incident thereto, such loss
could not reasonably be expected to have a Material Adverse Effect); or (v) any
CATV System shall fail for any period of five consecutive calendar days to
operate and the revenue stream derived from the particular CATV System failing
to so operate is material to the revenue stream of the Borrower and the
Subsidiaries taken as a whole;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Required Lenders, shall by written notice to the
Borrower, take any or all of the following actions, without prejudice to the
rights of any Lender or the holder of any Note to enforce its claims against any
Loan Party (PROVIDED that, if an Event of Default specified in Section 7.05
shall occur with respect to the Borrower, the result which would occur upon the
giving
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of written notice by the Required Lenders to the Borrower as specified below
shall occur automatically without the giving of any such notice): (i) declare
the principal of and any accrued interest in respect of all Loans and the Notes
and all Obligations to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower and (ii) terminate all commitments.
SECTION 8. DEFINITIONS AND ACCOUNTING TERMS.
8.01 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Acquisition" shall mean the proposed purchase by the Borrower
of certain cable television systems from Frontier Vision Partners pursuant to
the Acquisition Documents.
"Acquisition Documents" shall mean and include (i) the Asset
Purchase Agreement, dated as of September 10, 1998, by and between
FrontierVision Operating Partners, L.P., a Delaware limited partnership and
Helicon Partners I, L.P., a Delaware limited partnership, (ii) the bills of sale
and all other documents executed or delivered in connection therewith and (iii)
the Assignment and Assumption Agreement, dated as of December 30, 1998, by and
between Helicon Partners I, L.P. and the Borrower (as the same may be amended,
modified, renewed or extended from time to time).
"Affiliate" shall mean, with respect to any Person, any other
Person which directly or indirectly is in control of, is controlled by, or is
under common control with, such Person. For purposes of this definition, control
of a Person shall mean the power, direct or indirect, (i) to vote 10% or more of
the securities or other interests having ordinary voting power for the election
of directors or other managing Persons thereof or (ii) to direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise. For all purposes of this Agreement, none of the Bank Agent, any Bank,
any Lender or any of its respective Affiliates, shall be considered an Affiliate
of the Borrower or any Subsidiary of the Borrower.
"Affiliate Contracts" shall have the meaning set forth in
Section 3.01(j)(vii).
"Agreement" shall mean this loan agreement, as modified,
supplemented or amended from time to time.
"Annualized Operating Cash Flow" shall mean as at any date of
determination thereof, Operating Cash Flow for the most recently ended fiscal
quarter TIMES four.
"Bank" shall mean each financial institution party to the
Credit Agreement from time to time.
"Bank Agent" shall mean the Agent under the Credit Agreement,
and shall include any successor to the Bank Agent appointed pursuant to the
terms thereof.
"Bankruptcy Code" shall have the meaning provided in Section
7.05.
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"Bankruptcy Event" shall have the meaning provided in Section
9.02.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the borrowing of Loans from all the
Lenders having Commitments on a pro rata basis on the Initial Funding Date and
the Subsequent Funding Date.
"Business Day" shall mean any day except Saturday, Sunday and
any day which shall be in New York City a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close.
"Capital Expenditures" shall mean without duplication, any
expenditures for any purchase or other acquisition of any asset which would be
classified as a fixed or capital asset on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with GAAP, excluding (i)
expenditures of insurance proceeds to rebuild or replace any asset after a
casualty loss, (ii) leasehold improvement expenditures for which the Borrower or
a Subsidiary is reimbursed promptly by the lessor and (iii) the costs of assets
acquired with Capitalized Lease Obligations.
"Capitalized Lease," as applied to any Person, shall mean any
lease of any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with generally accepted accounting principles, is accounted
for as a capital lease on the balance sheet of that Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations under Capitalized Leases, in each case taken at the amount
thereof accounted for as Indebtedness in accordance with generally accepted
accounting principles.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (PROVIDED that the full faith
and credit of the United States is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition, (ii) time deposits
and certificates of deposit of any commercial bank organized under the laws of
the United States, any State thereof or the District of Columbia having, or
which is the principal banking subsidiary of a bank holding company organized
under the laws of the United States, any State thereof, or the District of
Columbia having, capital, surplus and undivided profits aggregating in excess of
$200,000,000 and having a long-term unsecured debt rating of at least "A" or the
equivalent thereof from Standard & Poor's Corporation ("S&P") or "A2" or the
equivalent thereof from Moody's Investors Service, Inc. ("Moody's"), with
maturities of not more than twelve months from the date of acquisition by such
Person, (iii) repurchase obligations with a term of not more than 7 days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper issued by any Person incorporated in the United States and/or
tax exempt securities issued by any agency or instrumentality of any state of
the United States or subdivision thereof, in each case rated at least A-2 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's
and in each case maturing not more than 12 months after the date of acquisition
by such
-38-
Person and (v) investments in money market funds substantially all of whose
assets are comprised of securities of the types described in clauses (i) through
(iv) above.
"CATV Franchise" shall mean collectively, (i) any franchise,
license, permit, wire agreement or easement granted by any political
jurisdiction or unit or other franchising authority pursuant to which a Person
has the right to operate a CATV System, (ii) any pole attachment agreement or
underground conduit use agreement entered into in connection with the operation
of any CATV System, and (iii) any legislation, regulation, bill, ordinance,
agreement or other instrument or document setting forth all of any part of the
terms of any FCC License or franchise, license, permit, wire agreement or
easement described in clause (i) of this definition.
"CATV System" shall mean a system owned by the Borrower or any
of its Subsidiaries which transmits audio, video, digital or other signals or
information by cable, optical antennae, microwave, or satellite means, to
Persons who pay to receive such transmissions.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 et seq.
"Change in Control" shall mean Theodore B. Baum shall cease to
own, free and clear of all Liens or other encumbrances (other than Liens in
favor of the Banks), at lease 50.1% of the voting control of the Borrower either
directly or through another Person, indirectly.
"Claims" shall have the meaning provided in the definition of
"Environmental Claims."
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder. Section references to the Code are to the Code, as in effect
at the date of this Agreement, and to any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collective Bargaining Agreements" shall have the meaning set
forth in Section 3.01(j)(iv).
"Commitment" shall mean and include for each Lender, such
Lender's Initial Commitment and Subsequent Commitment.
"Communications Act" shall mean the Communications Act of
1934, as amended and in effect from time to time.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or
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payment of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; PROVIDED, HOWEVER, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Credit Agreement" shall mean the Credit Agreement, dated as
of June 26, 1997 and as amended by Amendment No. 1, dated as of January 5, 1999,
by and among the Borrower, the Bank Agent and the Banks, as such agreement may,
subject to Section 6.10, be amended, restated, extended, replaced, supplemented,
restructured or otherwise modified from time to time (in whole or in part
without limitation as to terms, extensions of maturities, increasing the amount
of borrowings or other conditions or covenants), including all related notes,
collateral documents, guarantees, instruments and agreements entered into in
connection therewith, as the same may be amended, modified, supplemented,
restated, restructured, replaced or refinanced from time to time.
"Debt Agreement" shall have the meaning set forth in Section
3.01(j)(v).
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Dividend", with respect to any Person, shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or partners or authorized or made any other distribution, payment
or delivery of property (other than capital stock of such Person) or cash to its
stockholders or partners in their capacity as stockholders or partners, or
redeemed, retired, purchased or otherwise acquired or liquidated, directly or
indirectly, for a consideration any shares of any class of its capital stock or
partnership interests outstanding on or after the Effective Date (or any options
or warrants issued by such Person with respect to its capital stock or
partnership interests), or set aside any funds for any of the foregoing
purposes, or shall have permitted any Subsidiary of such Person to purchase or
otherwise acquire for a consideration any shares of any class of the capital
stock or other ownership interests of such Person outstanding on or after the
Initial Funding Date (or any options or warrants issued by such Person with
respect to its capital stock or other ownership interests). Without limiting the
foregoing, "Dividends" with respect to any Person shall also include all cash
payments made or required to be made by such Person with respect to any stock
appreciation rights, equity incentive plans or any similar plans or setting
aside of any funds for the foregoing purposes.
"Documents" shall mean the Loan Documents, the Acquisition
Documents and any other documents executed in connection with the transactions
contemplated hereby.
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"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Effective Date" shall have the meaning provided in Section
10.10.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution, other "accredited investor" (as defined in
Regulation D of the Securities Act) other than individuals, or a "qualified
institutional buyer" as defined in Rule 144A of the Securities Act.
"Employee Benefit Plans" shall have the meaning provided in
Section 3.01(j)(i).
"Employment Agreements" shall mean any employment agreements
entered into by the Borrower or any Subsidiary of the Borrower with any officer
or director of the Borrower, or any Subsidiary of the Borrower.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any violation of, or liability under, any
Environmental Law or any permit issued, or any approval given, under any such
Environmental Law (hereafter, "Claims"), including, without limitation, (a) any
and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and (b) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged injury
or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, policy and rule of common
law now or hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or Hazardous Materials, including, without limitation, CERCLA; RCRA; the Federal
Water Pollution Control Act, as amended, 33 U.S.C. ss. 1251 et seq.; the Toxic
Substances Control Act, 15 U.S.C. ss. 7401 et seq.; the Clean Air Act, 42 U.S.C.
ss. 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. ss. 3803 et seq.; the
Oil Pollution Act of 1990, 33 U.S.C. ss. 2701 et seq.; the Occupational Safety
and Health Act, 29 U.S.C. ss. 651 et seq.; and any applicable state and local or
foreign counterparts or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement, and to any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which, together with the Borrower or any Subsidiary of
the Borrower would be deemed to be a "single employer" (i) within the meaning of
Section 414(b), (c), (m) or (o) of the Code or (ii) as a
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result of the Borrower or a Subsidiary of the Borrower being or having been a
general partner of such person.
"Event of Default" shall have the meaning provided in Section
7.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as in effect on the Effective Date.
"Existing Board of Directors" shall mean the existing board of
directors of the Borrower, consisting of Theodore Baum, Ruth Baum and David
Baum.
"Existing Indebtedness" shall have the meaning provided in
Section 4.21.
"Expiration Date" shall mean January 31, 1999.
"FCC" shall mean the Federal Communications Commission or any
other regulatory body which succeeds to the functions of the Federal
Communications Commission.
"FCC License" shall mean any community antenna relay service,
broadcast auxiliary license, business radio, microwave or special safety radio
service license issued by the FCC pursuant to the Communications Act.
"Fixed Charge Coverage Ratio" shall mean at any date of
determination thereof, the ratio of (i)(a) Operating Cash Flow, MINUS (b) the
sum of (1) Capital Expenditures (limited to maintenance Capital Expenditures
calculated as a greater of (x) the actual maintenance Capital Expenditures or
(y) $35 per subscriber for the average number of basic subscribers during the
period tested), (2) Management Fees paid and (3) cash taxes, all calculated for
the four fiscal quarter period ending on such date, or if such date is not the
last day of a fiscal quarter for the immediately preceding four fiscal quarter
period, to (ii) the aggregate amount of payments of interest, scheduled
principal payments of Indebtedness, permitted distributions and fees (excluding
any one-time structuring and closing fees) required to be made or made during
such four consecutive fiscal quarter, all calculated for the Borrower and its
Subsidiaries on a consolidated basis.
"Funding Date" shall mean and include each of the Initial
Funding Date and the Subsequent Funding Date.
"Governmental Authority" shall mean any foreign, federal,
state, municipal or other government, or any department, commission, board,
bureau, agency, public authority, or instrumentality thereof, or any court or
arbitrator.
"Hazardous Materials" means (a) petroleum or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contain,
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous waste," "restricted hazardous waste," "toxic substances,"
"toxic pollutants," "contaminants," or "pollutants," or words of similar meaning
and regulatory effect, under any applicable
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Environmental Law; and (c) any other chemical, material or substance, exposure
to which is prohibited, limited or regulated under applicable Environmental
Laws.
"HCC" shall mean Helicon Capital Corp., a corporation
organized and existing under the laws of the State of Delaware.
"Helicon Corp." shall mean Helicon Corp. a corporation
organized and existing under the laws of the State of New Jersey.
"Helicon Network Solutions" shall mean Helicon Network
Solutions, L.P., a limited partnership organized and existing under the laws of
the State of Delaware.
"HPIAC" shall mean HPI Acquisition Co. LLC.
"Indebtedness" shall mean, as to any Person, at a particular
time, all items which constitute, without duplication, (i) indebtedness for
borrowed money, (ii) indebtedness in respect of the deferred purchase price of
Real Property (other than trade payables incurred in the ordinary course of
business), (iii) indebtedness evidenced by notes, bonds, debentures or similar
instruments, (iv) obligations with respect to any conditional sale or title
retention agreement, (v) indebtedness arising under acceptance facilities and
the amount available to be drawn under all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn thereunder to
the extent such Person shall not have reimbursed their issuer in respect of the
issuer's payment thereof, (vi) all liabilities secured by any Lien on any Real
Property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof (other than carriers',
warehousemen's, mechanics', repairmen's or other like non-consensual statutory
Liens arising in the ordinary course of business), (vii) Capitalized Lease
Obligations, (viii) all obligations of such Person in respect of capital stock
subject to mandatory purchase or redemption or purchase or redemption at the
option of the holder thereof, in whole or in part, (ix) all Contingent
Obligations of such Person in respect of any of the foregoing and (x) all
obligations under any Rate Hedging Agreements or under any control disbursement
accounts, repurchase agreements, reverse repurchase agreements, caps, collars,
derivatives, currency hedge agreements or other similar types of agreements.
"Indemnified Matters" shall have the meaning provided in
Section 10.01.
"Indemnitees" shall have the meaning provided in Section
10.01.
"Information Systems and Equipment" shall mean all computer
hardware, firmware and software, as well as other information processing
systems, or any equipment continuing embedded microchips, whether directly
owned, licensed, leased, operated or otherwise controlled by the Borrower or any
of its Subsidiaries, including through third-party service providers, and which,
in whole or in part, are used, operated, relied upon, or integral to, the
Borrower's or any of its Subsidiaries' conduct of their business.
"Initial Commitment" shall mean for each Lender, the amount
set forth opposite such Lender's name on Schedule I hereto directly below the
column entitled "Initial Commitments," as the same may be (x) reduced or
terminated from time to time pursuant to
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Section 2.01 or (y) adjusted from time to time as a result of assignments to or
from such Lender pursuant to Section 10.04.
"Initial Funding Date" shall mean the first date on which
Loans are made to the Borrower pursuant to this Agreement.
"Intellectual Property" shall have the meaning provided in
Section 4.20.
"ISP Assets" shall mean assets of the Borrower, consisting of
telephone dial-up internet access and other related internet services provided
by the Borrower to approximately 17,000 internet access subscribers under the
name "Helicon Online."
"Leasehold Properties" of any Person means all right, title
and interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall have the meaning provided in the first
paragraph of this Agreement.
"Leverage Ratio" shall mean at any date of determination, the
ratio of (i) Total Debt to (ii) Annualized Operating Cash Flow.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" has the meaning specified in Section 1.01.
"Loan Documents" shall mean, collectively, this Agreement,
each Note, the Subordinated Guaranty and the Subordination Agreement.
"Loan Party" shall mean each of the Borrower, and the
Subordinated Guarantor and Helicon Corp.
"Management Agreements" shall have the meaning set forth in
Section 3.01(j)(iii).
"Management Contract" shall mean the management agreement,
dated as of November 2, 1993, by and among the Borrower and Helicon Corp., as in
effect on the date hereof.
"Management Fees" shall mean all salaries, costs and other
expenses from time to time directly or indirectly paid or payable under the
Management Contract by the Borrower or any of its Subsidiaries to any Person for
managerial services.
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"Margin Stock" shall have the meaning provided in Regulation
U.
"Material Adverse Effect" shall mean a material adverse effect
on (i) the performance, assets, liabilities, condition (financial or otherwise),
operations, business, prospects or properties of the Borrower or any of its
Subsidiaries taken as a whole, (ii) the ability of the Borrower Party to perform
its obligations under any of the Loan Documents to which it is a party or (iii)
the ability of any Lender to enforce any of the Loan Documents.
"Material Contracts" shall have the meaning provided in
Section 3.01(j)(viii).
"Maturity Date" shall mean the third anniversary of the
Initial Funding Date.
"Moody's" shall have the meaning provided in the definition of
"Cash Equivalents."
"Net Mark-to-Market Exposure" shall mean with respect to any
Person, as of any date of determination, the excess (if any) of all unrealized
losses over all unrealized profits of such Person arising from Rate Hedging
Agreements. "Unrealized losses" means the fair market value of the cost to such
person of replacing such Rate Hedging Agreement were to be terminated as of that
date), and "unrealized profits" means the fair market value of the gain to such
Person of replacing such Rate Hedging as of the date of determination (assuming
such Rate Hedging Agreement were to be terminated as of that date).
"Net Sale Proceeds" shall mean for any sale or other
disposition of assets including capital stock and securities, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from such sale, net of reasonable transaction costs (including, without
limitation, attorneys' fees), the amount of such gross cash proceeds required to
be used to permanently repay any Indebtedness which is secured by the respective
assets which were sold, and the estimated marginal increase in income taxes and
any stamp tax which will be payable by the Borrower's consolidated group as a
result of such sale.
"Note" shall have the meaning provided in Section 1.04(a).
"Notice of Borrowing" shall have the meaning provided in
Section 1.02.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to any Lender pursuant to the terms of this Agreement or any other Loan
Document, including, without limitation, all principal, interest, premium,
penalties, fees, expenses, indemnification, reimbursements, damages and any
other liabilities, together with and including any amounts received upon the
exercise of rights of rescission or other rights of action (including claims for
damages) or otherwise.
"Observer" shall have the meaning provided in Section 5.12.
"Operating Cash Flow" shall mean for any period of
determination thereof, the sum of (i) pre-tax income or deficit, as the case may
be (excluding extraordinary gains and losses), (ii) interest expense, (iii)
Management Fees expense and (iv) depreciation and
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amortization, all calculated for the Borrower and its Subsidiaries on a
consolidated basis for such period after giving effect to any acquisitions and
dispositions of assets of the Borrower and its Subsidiaries made during such
period as if made on the first day of such period.
"PCF" shall mean Paribas Capital Funding LLC, a limited
liability company organized and existing under the laws of the State of
Delaware.
"Permitted Liens" shall have the meaning provided in Section
6.01.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, limited liability company, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any pension plan, as defined in Section 3(2)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower, a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, a Subsidiary of the Borrower or
an ERISA Affiliate maintained, contributed to or had an obligation to contribute
to such plan.
"Projections" shall have the meaning provided in Section
3.01(h)(B).
"Quarterly Payment Date" shall mean the first Business Day of
each March, June, September and December of each calendar year.
"Rate Hedging Agreement" shall mean an agreement, device or
arrangement providing for payment which are related to fluctuations of interest
rates, exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross currency interest rate exchange agreement, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C.ss. 6901 et seq.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leasehold Properties.
"Redemption Price" shall have the meaning set forth in Section
2.02(a) hereof.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
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"Related Fund" shall mean, with respect to any Lender that is
a fund that invests in loans, any other fund that invests in loans and is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Release" means disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing, pouring and the like, into or upon any land or water or air, or
otherwise entering into the environment.
"Required Lenders" shall mean, at any time, Lenders the sum of
whose then outstanding Loans and Commitments represents at least a majority of
all then outstanding Commitments and Loans.
"Returns" shall have the meaning provided in Section 4.09.
"S&P" shall have the meaning provided in the definition of
"Cash Equivalents."
"SEC" shall have the meaning provided in Section 5.01(h).
"Section 2.04(b)(ii) Certificate" shall have the meaning
provided in Section 2.04(b)(ii).
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Senior Debt" shall mean all payment obligations now or
hereafter incurred pursuant to and in accordance with the terms of the Credit
Agreement and the Senior Indenture Documents (including without limitation all
principal and interest, premium, penalties, fees, expenses, indemnification,
reimbursements, damages and other liabilities payable under such documents;
PROVIDED, that in no event shall the principal amount of Senior Debt exceed
$135,000,000 (as such amount is reduced by repayments thereof after the date
hereof except for repayments in connection with refinancings)). Senior Debt
outstanding under the Credit Agreement and the Senior Indenture Documents shall
continue to constitute Senior Debt for all purposes hereof, notwithstanding that
such Senior Debt or any claim in respect thereof may be disallowed, avoided or
subordinated pursuant to any insolvency law, the Bankruptcy Code or any similar
federal or state law for the relief of debtors or other applicable insolvency
law or equitable principles as a claim for unmatured interest.
"Senior Debt Documents" shall mean collectively the Credit
Agreement and the Senior Indenture Documents.
"Senior Indebtedness" shall mean, with respect to the Borrower
and its Subsidiaries, the Senior Debt.
"Senior Indenture" shall mean the Indenture, dated as of
October 15, 1993, by and among the Borrower, Helicon Capital Corp. and Shawmut
Bank Connecticut, National Association, as trustee, as the same may be amended,
modified or supplemented in accordance with Section 6.10.
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"Senior Indenture Documents" shall mean and include the Senior
Indenture, the Senior Indenture Notes and all security agreements, pledges and
other agreements and documents executed and delivered in connection therewith,
as the same may be amended, modified or supplemented in accordance with Section
6.10.
"Senior Indenture Notes" shall mean the notes issued pursuant
to the Senior Indenture, as the same may be amended, modified or supplemented in
accordance with Section 6.10.
"Shareholders' Agreements" shall have the meaning set forth in
Section 3.01(j)(ii).
"Subordinated Guarantor" shall mean each Subsidiary of the
Borrower which has entered into the Subordinated Guaranty in accordance with
this Agreement.
"Subordinated Guaranty" shall have the meaning set forth in
Section 3.01(i) hereof.
"Subordinated Obligations" shall have the meaning set forth in
Section 9.01.
"Subordination Agreement" shall have the meaning set forth in
Section 3.01(p) hereof.
"Subsequent Commitment" shall mean for each Lender, the amount
set forth opposite such Lender's name on Schedule I hereto directly below the
column entitled "Subsequent Commitments," as the same may be (x) reduced or
terminated from time to time pursuant to Section 2.01 or (y) adjusted from time
to time as a result of assignments to or from such Lender pursuant to Section
10.04.
"Subsequent Funding Date" shall mean the one date, other than
the Initial Funding Date, on which Loans are made, and which date shall occur no
later than March 1, 1999.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through and/or one or more Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
directly or indirectly through and/or one or more Subsidiaries of such Person
has more than a 50% equity interest at the time.
"Tax Sharing Agreements" shall have the meaning set forth in
Section 3.01(j)(vi).
"Taxes" shall have the meaning provided in Section 2.04(a).
"Total Commitment" shall mean the aggregate Commitments of the
Lenders.
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"Total Debt" shall mean the sum of, without duplication, all
Indebtedness, Net Mark-to-Market Exposure and obligations under non-compete
agreements of the Borrower and its Subsidiaries on a consolidated basis.
"Transaction" shall mean collectively, (i) the incurrence of
Loans hereunder on the applicable Funding Date, (ii) the execution and delivery
of the Loan Documents on the Initial Funding Date, (iii) consummation of the
Acquisition, (iv) the payment of the Transaction Fees and Expenses in connection
therewith and (v) the amendment of the Credit Agreement to permit the
transactions contemplated hereby.
"Transaction Fees and Expenses" shall mean all fees and
expenses incurred in connection with and arising out of the Transaction and the
transactions contemplated thereby and hereby.
"Trustee" shall mean State Street Bank and Trust Company, as
trustee under the Senior Indenture.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"United States" and "U.S." shall each mean the United States
of America.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 99% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 99% equity
interest at such time.
"Year 2000 Compliant" shall mean that all Information Systems
and Equipment accurately process date data (including, but not limited to,
calculating, comparing and sequencing), before, during and after the year 2000,
as well as same and multi-century dates, or between the years 1999 and 2000,
taking into account all leap years, including the fact that the year 2000 is a
leap year, and further, that when used in combination with, or interfacing with,
other Information Systems and Equipment, shall accurately accept, release and
exchange date data, and shall in all material respects continue to function in
the same manner as it performs today and shall not otherwise impair the accuracy
or functionality of Information Systems and Equipment.
SECTION 9. SUBORDINATION
9.01 NOTES SUBORDINATE TO SENIOR INDEBTEDNESS. The Borrower
covenants and agrees, and each Lender and each other holder of any Note, if any,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Section 9, the payment of the Obligations, including pursuant
to any amendment, modification, restatement or renewal thereof (the
"Subordinated Obligations"), is hereby expressly made subordinate and subject in
right of payment as provided herein to the prior payment in full in cash or cash
equivalents of all Senior Indebtedness.
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9.02 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Borrower or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Borrower, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets or liabilities of the Borrower (collectively,
"Bankruptcy Events"), then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full in cash or cash equivalents of all amounts due
on or in respect of all Senior Indebtedness, including any interest
accrued subsequent to a Bankruptcy Event, whether or not such interest
is an allowed claim enforceable against the debtor under the United
States Bankruptcy Code, or provision satisfactory to the holders of
Senior Indebtedness shall be made for such payment in cash or cash
equivalents, before the holders of any Note are entitled to receive any
payment of any kind or character; and
(2) any payment or distribution of assets of the Borrower of
any kind or character, whether in cash, property or securities, set-off
or otherwise, to which the holders of any Note would be entitled but
for the provisions hereof shall be paid by the liquidating trustee or
agent or other Person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any such Senior Indebtedness may
have been issued, ratably according to the aggregate amounts remaining
unpaid on account of Senior Indebtedness held or represented by each,
to the extent necessary to make payment in full in cash or cash
equivalents of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section, the holder of any Note shall have received
any payment or distribution of assets of the Borrower of any kind or
character, whether in cash, property or securities before all Senior
Indebtedness is paid in full in cash or cash equivalents or payment
thereof provided for in cash or cash equivalents in a manner
satisfactory to the holders of Senior Indebtedness, then and in such
event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or
distribution of assets of the Borrower for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all Senior Indebtedness in full in cash or cash equivalents, after
giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
The consolidation of the Borrower with, or the merger of the
Borrower with or into, another Person or the liquidation or dissolution of the
Borrower following the conveyance, transfer or lease of its properties and
assets substantially as an entirety to another Person shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshaling of assets and liabilities of the Borrower for the
purposes of this Section if
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the Person formed by such consolidation or the surviving entity of such merger
or the Person which acquires by conveyance, transfer or lease such properties
and assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance, transfer or lease, comply with the
conditions set forth in the Senior Debt Documents.
9.03 SUSPENSION OF PAYMENT IN CERTAIN CIRCUMSTANCES. (a) If a
payment default under the Senior Debt Documents shall have occurred and is
continuing, no payment or distribution of any assets of the Borrower of any kind
or character shall be made by or on behalf of the Borrower to the holders of any
Note unless and until such default shall have been cured or waived or shall have
ceased to exist.
(b) If a default under the Senior Debt Documents other than a
payment default shall have occurred and is continuing, no payment or
distribution of any assets of the Borrower of any kind or character shall be
made by or on behalf of the Borrower to the holders of any Note for a period of
180 days unless and until such default shall have been cured or waived or shall
have ceased to exist.
(c) In the event that any payment prohibited by the foregoing
provisions of this Section is made to a holder of any Note, then and in such
event such payment shall be held in trust for the benefit of and shall be
promptly paid over or delivered to the holders of Senior Indebtedness remaining
unpaid (pro rata to such holders) to the extent necessary to pay in full all
amounts payable on or in connection with Senior Indebtedness in accordance with
its terms.
9.04 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full in cash or cash equivalents of all Senior
Indebtedness, the holders of any Note shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to Senior Indebtedness until the principal
of, premium, if any, and interest on any Note shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the holder of
any Note would be entitled except for the provisions hereof, and no payments
over pursuant to the provisions hereof to the holders of Senior Indebtedness by
holders of any Note, shall, as among the Borrower, its creditors other than
holders of Senior Indebtedness, and the holders of any Note, be deemed to be a
payment or distribution by the Borrower to or on account of Senior Indebtedness.
9.05 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. The
provisions hereof are intended solely for the purpose of defining the relative
rights of the holders of any Note on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing contained herein is intended to or shall
(a) impair, as among the Borrower, its creditors other than holders of Senior
Indebtedness and the holders of any Note, the obligation of the Borrower, which
is absolute and unconditional, to pay to holders of any Note all amounts due
thereon as and when the same shall become due and payable, or (b) affect the
relative rights against the Borrower of holders of any Note and creditors of the
Borrower other than the holders of Senior Indebtedness, or (c) prevent the
holders of any Note from exercising all remedies otherwise permitted by
applicable law upon default under the Notes, subject to the rights, if any,
herein of the holders of Senior Indebtedness (1) in any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Borrower referred
to in
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Section 9.02, to receive, pursuant to and in accordance with such Section, cash,
property and securities otherwise payable or deliverable to holders of any Note,
or (2) under the conditions specified in Section 9.03, to prevent any payment
prohibited by such Section or enforce their rights pursuant to Section 9.03(c).
9.06 NO WAIVER OF SUBORDINATION PROVISIONS. (a) No right of
any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Borrower or by any act or failure to
act, in good faith, by any such holder, or by any non-compliance by the Borrower
with the terms, provisions and covenants of any document evidencing or governing
such Senior Indebtedness or the Notes, regardless of any knowledge thereof any
such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the holders of any Note, without
incurring responsibility to the holders of any Note and without impairing or
releasing the subordination provided herein or the obligations hereunder of the
holders of any Note to the holders of Senior Indebtedness, do any one or more of
the following: (1) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, the Senior Debt Documents or any
instrument evidencing the same or any agreement under which the Senior
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing the Senior Indebtedness;
(3) release any Person liable in any manner for the collection or payment of
Senior Indebtedness; and (4) exercise or refrain from exercising any rights
against the Borrower and any other Person; PROVIDED that in no event shall any
such actions limit the right of the holders of any Note to take any action to
accelerate the maturity of such Note or to pursue any rights or remedies if the
taking of such action does not otherwise violate or conflict with the terms
hereof.
9.07 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT. Upon any payment or distribution of assets of the Borrower referred to
herein, the holders of any Note shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which an insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding relative to the Borrower, its creditors, as such,
or its assets is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
holders of any Note, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Borrower, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto, PROVIDED that the foregoing shall apply only if such court has been
fully apprised of the provisions hereof.
9.08 NO SUSPENSION OF REMEDIES. Nothing contained herein shall
limit the right of the holders of any Note to take any action to accelerate the
maturity of such Note or to pursue any rights or remedies under applicable law
or under the agreement or instrument governing such Note, subject to the rights
hereunder of the holders, from time to time, of Senior Indebtedness.
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9.09 MISCELLANEOUS SUBORDINATION PROVISION. The agreements
contained in this Section 9 shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of the Senior Indebtedness is
rescinded or must otherwise be returned by any holder of Senior Indebtedness
upon any Bankruptcy Event of the Borrower, all as though such payment had not
been made.
SECTION 10. MISCELLANEOUS.
10.01 PAYMENT OF EXPENSES, ETC. The Borrower agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of PCF (including, without
limitation, the reasonable fees and disbursements of White & Case LLP) in
connection with the preparation, execution and delivery of this Agreement and
the other Loan Documents and the documents and instruments referred to herein
and therein and any amendment, waiver or consent relating hereto or thereto, and
of each of the Lenders in connection with the enforcement of this Agreement and
the other Loan Documents and the documents and instruments referred to herein
and therein (including, without limitation, the reasonable fees and
disbursements of counsel for each of the Lenders); (ii) pay and hold each of the
Lenders harmless from and against any and all present and future stamp, excise
and other similar taxes with respect to the foregoing matters and save each of
the Lenders harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Lender) to pay such taxes; and (iii) defend, protect, indemnify and hold
harmless each Lender, and each of its respective officers, directors, employees,
representatives, attorneys, agents, Affiliates, any other Person in control of
any Lender or its affiliates (collectively called the "Indemnitees") from and
against any and all liabilities, obligations (including removal or remedial
actions), losses, damages (including foreseeable and unforeseeable consequential
damages and punitive damages), penalties, claims, actions, judgments, suits,
proceedings, costs, expenses and disbursements (including reasonable attorneys'
and consultants fees and disbursements) of any kind or nature whatsoever that
may at any time be incurred by, imposed on or assessed against the Indemnitees
directly or indirectly based on, or arising or resulting from, or in any way
related to, or by reason of (a) any investigation, litigation or other
proceeding (whether or not any Lender is a party thereto and whether or not any
such investigation, litigation or other proceeding is between or among any
Lender, the Borrower or any of its Subsidiaries, or any third Person or
otherwise) related to the entering into and/or performance of this Agreement or
any other Document or the proceeds of any Loans hereunder or the consummation of
any transactions contemplated herein (including, without limitation, the
Transaction) or in any other Document or the exercise of any of their rights or
remedies provided herein or in the other Loan Documents; or, (b) the actual or
alleged generation, presence or Release of Hazardous Materials on or from, or
the transportation of Hazardous Materials to or from, any Real Property owned or
at any time operated by the Borrower or any of its Subsidiaries; or (c) any
Environmental Claim relating to the Borrower, any of its Subsidiaries or any
Real Property owned or at any time operated by the Borrower or any of its
Subsidiaries; or (d) the exercise of the rights of any Lender under any of the
provisions of this Agreement, any other Loan Document, or any other Document or
any Loans hereunder; or (e) the consummation of any transaction contemplated
herein (including, without limitation, the Transaction) or in any other Loan
Document (the "Indemnified Matters") regardless of when such Indemnified Matter
arises,
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but excluding any such Indemnified Matter based solely on the gross negligence
or willful misconduct of any Indemnitee.
10.02 RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, each Lender is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to the
Borrower or any of its Subsidiaries or to any other Person, any such notice
being hereby expressly waived, but in any event subject to Section 9, to set off
and to appropriate and apply any and all deposits (general or special) and any
other Indebtedness at any time held or owing by such Lender (including, without
limitation, by branches and agencies of such Lender wherever located) to or for
the credit or the account of the Borrower or any of its Subsidiaries against and
on account of the Subordinated Obligations and liabilities of the Borrower or
any of its Subsidiaries to such Lender under this Agreement or under any of the
other Loan Documents, including, without limitation, all interests in
Subordinated Obligations purchased by such Lender pursuant to Section 10.06, and
all other claims of any nature or description arising out of or connected with
this Agreement or any other Loan Document, irrespective of whether or not such
Lender shall have made any demand hereunder and although said Subordinated
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. The Lenders hereby agree to provide notice to the Borrower and the
Bank Agent of any action taken pursuant to this Section 10.02; PROVIDED, that
the failure to give such notice shall not affect any action taken by such Lender
pursuant to this Section 10.02.
10.03 NOTICES. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to the Borrower, at
its address specified opposite its signature below; if to any Lender, at its
address specified opposite its name below; if to the Banks or the Bank Agent, to
the address specified in the Credit Agreement; or, as to the Borrower or any
Lender, at such other address as shall be designated by such party in a written
notice to the other parties hereto and, as to the Bank Agent and each Bank, at
such other address as shall be designated by the Bank Agent or such Bank in a
written notice to the Borrower and each Lender. All such notices and
communications shall, when mailed, telegraphed, telexed, facsimile, or cabled or
sent by overnight courier, be effective three Business Days after deposited in
the mails, certified, return receipt requested, when delivered to the telegraph
company or cable company or one Business Day following delivery to an overnight
courier, as the case may be, or sent by telex or facsimile device, except that
notices and communications to a Lender or the Bank Agent shall not be effective
until received by such Lender or the Bank Agent.
10.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; PROVIDED, HOWEVER, that the
Borrower may not assign or transfer any of its rights, obligations or interest
hereunder or under any other Loan Document without the prior written consent of
all Lenders; and PROVIDED FURTHER, that although any Lender may transfer, assign
or grant participations in its rights hereunder, such Lender shall remain a
"Lender" for all purposes hereunder (and may not transfer or assign all or any
portion of its Loans hereunder except as
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provided in Section 10.04(b)) and the transferee, assignee or participant, as
the case may be, shall not constitute a "Lender" hereunder; and PROVIDED
FURTHER, that no Lender shall transfer or grant any participation under which
the participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Loan Document except to the extent such amendment or
waiver would: (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating, or reduce the rate or extend the time
of payment of interest (except in connection with a waiver of applicability of
any post-default increase in interest rates) or reduce the principal amount
thereof over the amount thereof then in effect (it being understood that waivers
of any Defaults or Events of Default or of a mandatory repayment shall not
constitute a change in the terms of such participation), or (ii) consent to the
assignment or transfer by or a release of the Borrower of any of its rights and
obligations under this Agreement or any other Loan Document. In the case of any
such participation, the participant shall not have any rights under this
Agreement or any of the other Loan Documents (the participant's rights against
such Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the participant relating thereto)
and all amounts payable by the Borrower hereunder and thereunder shall be
determined as if such Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may assign all or a portion of its
outstanding principal amount of Loans to one or more Eligible Transferees or to
a Related Fund each of which assignees shall become a party to this Agreement as
a Lender by execution of an assignment and assumption agreement substantially in
the form of EXHIBIT H (appropriately completed); PROVIDED that: (i) at such time
SCHEDULE I shall be deemed modified to reflect the outstanding Loans of such new
Lender and of the existing Lenders; and (ii) new Notes will be issued, at the
Borrower's expense, to such new Lender and to the assigning Lender upon the
request of such new Lender or assigning Lender, such new Notes to be in
conformity with the requirements of Section 1.04 (with appropriate
modifications) to the extent needed to reflect the revised outstanding Loans. At
the time of each assignment pursuant to this Section 10.04(b) to a Person which
is not already a Lender hereunder and which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall provide to the Borrower the
appropriate Internal Revenue Service Forms (and, if applicable, a Section
2.04(b)(ii) Certificate) required by Section 2.04(b).
10.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of any Lender or any holder of any Note in exercising any right, power
or privilege hereunder or under any other Loan Document and no course of dealing
between the Borrower or any of its Subsidiaries or any Lender or the holder of
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights, powers and
remedies herein or in any other Loan Document expressly provided are cumulative
and not exclusive of any rights, powers or remedies which any Lender or the
holder of any Note would otherwise have. No notice to or demand on the Borrower
or any of its Subsidiaries in any case shall entitle any such Person to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of any Lender or the holder of any Note to any
other or further action in any circumstances without notice or demand.
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10.06 PAYMENTS PRO RATA. Each of the Lenders agrees that, if
it should receive any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right of setoff or banker's
lien, by counterclaim or cross action, by the enforcement of any right under the
Loan Documents, or otherwise), which is applicable to the payment of the
principal of, or interest on, the Loans, of a sum which with respect to the
related sum or sums received by other Lenders is in a greater proportion than
the total of such Subordinated Obligations then owed and due to such Lender
bears to the total of such Subordinated Obligations then owed and due to all of
the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Subordinated Obligations to such other Lenders
in such amount as shall result in a proportional participation by all the
Lenders in such amount; PROVIDED, that if all or any portion of such excess
amount is thereafter recovered from such purchasing Lender, such purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest.
10.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements
to be furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrower to the
Lenders); PROVIDED, that except as otherwise specifically provided herein, all
computations determining compliance with Section 6, including the definitions
used therein, shall utilize accounting principles and policies in conformity
with those used to prepare the historical financial statements for the fiscal
year ended December 31, 1997 delivered to the Lenders pursuant to Section
4.05(a).
(b) All computations of interest and fees, hereunder shall be
made on the basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such
interest or fees are payable.
10.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER HEREBY IRREVOCABLY DESIGNATES, ACCEPTS AND EMPOWERS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
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SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY LENDER OR THE HOLDER
OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY PARTY IN ANY OTHER
JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE
AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
10.09 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be maintained by the
Borrower and the Lenders.
10.10 EFFECTIVENESS. This Agreement shall become effective on
the date (the "Effective Date") on which the Borrower and each of the Lenders
shall have signed a copy hereof (whether the same or different copies) and shall
have delivered the same to each other party hereto at the appropriate address
required by Section 10.03.
10.11 HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
10.12 AMENDMENT OR WAIVER. Neither this Agreement nor any
other Loan Document nor any terms hereof or thereof may be amended, changed,
waived, discharged or terminated unless such amendment, change, waiver,
discharge or termination is in writing signed by the Borrower and the Required
Lenders; PROVIDED, that no such amendment, change, waiver, discharge or
termination shall, without the consent of each Lender: (i) extend the final
scheduled maturity of any Loan or Note beyond the Maturity Date, or reduce the
rate or extend the time of payment of interest thereon (except in connection
with a waiver of applicability of any post-default increase in interest rates),
or reduce the principal amount thereof; (ii) amend, modify or waive any
provision of this Section 10.12; (iii) reduce the percentage specified in, or
otherwise modify, the definition of Required Lenders (it being understood that,
with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the extensions of
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Loans are included on the Effective Date); or (iv) consent to the assignment or
transfer by the Borrower any of its rights and obligations under this Agreement.
10.13 SURVIVAL. All indemnities set forth herein including,
without limitation, in Sections 2.04 and 10.01 shall survive the execution and
delivery of this Agreement and the Notes and the making and repayment of the
Loans.
10.14 DOMICILE OF LOANS. Each Lender may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Lender.
10.15 POST-CLOSING OBLIGATIONS. The Borrower hereby
acknowledges that in connection with certain assignments hereof, any of the
Lenders may be required to obtain a rating of the Subordinated Obligations and
Commitments hereunder of the Borrower and the Borrower hereby consents to such
Lender providing to the respective rating agency such information regarding the
Subordinated Obligations and creditworthiness of the Borrower as is customary
practice of such rating agency.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
ADDRESS THE HELICON GROUP, L.P.
630 Palisade Avenue
Englewood Cliffs, New Jersey 07632 By: BAUM INVESTMENTS, INC.,
Attention: Herbert Roberts as its general partner,
Telephone: (201) 568-7720
Facsimile: (201) 568-6228 Name: /s/ Herbert J. Roberts
Title: Senior Vice President
787 Seventh Avenue PARIBAS CAPITAL FUNDING LLC
New York, New York 10019
Attention: Jeffrey Youle
Telephone: (212) 841-2000
Facsimile: (212) 841-2369 By: /s/ Jeffrey Youle
Title: Managing Director
SCHEDULE I
COMMITMENTS
INITIAL COMMITMENTS
Lender Commitment
------ ----------
Paribas Capital Funding LLC $7,000,000
SUBSEQUENT COMMITMENTS
Lender Commitment
------ ----------
Paribas Capital Funding LLC $5,000,000
TOTAL COMMITMENT $12,000,000
Schedule 4.10
ERISA
Schedule 4.12
REAL PROPERTY
Schedule 4.13
CAPITALIZATION
Schedule 4.14
SUBSIDIARIES
Schedule 4.21
EXISTING INDEBTEDNESS
Schedule 4.24
MATERIAL CONTRACTS
INSURANCE
SCHEDULE 6.01
LIENS
SCHEDULE 6.05
TRANSACTIONS WITH AFFILIATES
TABLE OF CONTENTS
Page
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SECTION 1. Amountand Terms of Loans..............................................................................1
1.01 TheLoans.....................................................................................1
1.02 Noticeof Borrowing...........................................................................1
1.03 Disbursementof Funds.........................................................................1
1.04 Notes........................................................................................1
1.05 Interest.....................................................................................2
1.06 IncreasedCosts, etc..........................................................................2
1.07 Fees.........................................................................................2
SECTION 2. Commitments;Repayment; Prepayments; Payments; Taxes...................................................3
2.01 Terminationof Commitments; Payment of Loans .................................................3
2.02 Mandatoryand Voluntary Prepayments...........................................................3
2.03 Methodand Place of Payment...................................................................4
2.04 NetPayments..................................................................................4
SECTION 3. ConditionsPrecedent to Loans..........................................................................6
3.01 ConditionsPrecedent to Loans on the Initial Funding Date.....................................6
(a) Officer's Certificate.................................................................6
(b) Opinions of Counsel...................................................................6
(c) Corporate Documents; Proceedings......................................................6
(d) Capitalization........................................................................6
(e) Senior Debt Documents.................................................................7
(f) Fees, etc. ...........................................................................7
(g) Approvals.............................................................................7
(h) Financial Statements; Projections; Management Letter Reports..........................7
(i) Subordinated Guaranty.................................................................8
(j) Plans; Shareholders'Agreements; Management Agreements; Employment Agreements;
Collective Bargaining Agreements; Debt Agreements; Affiliate Contracts; Tax
Sharing Agreements and Material Contracts.........................................8
(k) Insurance Analyses....................................................................9
(l) Consummation of the Acquisition.......................................................9
(n) Notes.................................................................................9
(o) Operating Cash Flow..................................................................10
(p) Subordination Agreement..............................................................10
3.02 ConditionsPrecedent to All Loans............................................................10
(a) No Default; Representations and Warranties...........................................10
(i)
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(b) Notice of Borrowing..................................................................10
(c) Litigation...........................................................................10
(d) Material Adverse Change, etc.........................................................10
(e) Senior Debt Documents................................................................10
SECTION 4. Representations,Warranties and Agreements............................................................11
4.01 Status......................................................................................11
4.02 Powerand Authority..........................................................................11
4.03 NoViolation.................................................................................11
4.04 GovernmentalApprovals.......................................................................12
4.05 FinancialStatements; Financial Condition; Undisclosed Liabilities; Projections; etc.........12
4.06 Litigation..................................................................................13
4.07 Trueand Complete Disclosure.................................................................13
4.08 Useof Proceeds; Margin Regulations..........................................................13
4.09 TaxReturns and Payments.....................................................................14
4.10 Compliancewith ERISA........................................................................14
4.11 Representations and Warranties in Documents.................................................15
4.12 Properties..................................................................................15
4.13 Capitalization..............................................................................15
4.14 Subsidiaries................................................................................15
4.15 Compliancewith Statutes, Etc................................................................15
4.16 Investment Company Act......................................................................15
4.17 Public Utility Holding Company Act..........................................................15
4.18 Environmental Matters.......................................................................16
4.19 Labor Relations.............................................................................16
4.20 Patents, Licenses, Franchises and Formulas..................................................16
4.21 Existing Indebtedness.......................................................................17
4.22 Restrictionson or Relating to Subsidiaries..................................................17
4.23 The Transaction.............................................................................17
4.24 Material Contracts..........................................................................17
4.25 Year 2000 Reprogramming.....................................................................18
4.26 FCC and Copyright Matters...................................................................18
4.27 No Employment Agreements....................................................................18
SECTION 5. AffirmativeCovenants.................................................................................18
5.01 InformationCovenants........................................................................18
(a) Monthly Reports......................................................................18
(b) Quarterly Financial Statements.......................................................18
(c) Annual Financial Statements..........................................................19
(d) Management Letters...................................................................19
(e) Budgets..............................................................................19
(f) Officer's Certificates...............................................................19
(g) Notice of Default or Litigation......................................................20
(h) Other Reports and Filings............................................................20
(ii)
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(i) Environmental Matters................................................................20
(j) Senior Debt Document Notices.........................................................21
(k) FCC Authorizations and Correspondence................................................21
(l) Other Information....................................................................21
5.02 Books, Records and Inspections..............................................................21
5.03 Maintenance of Property, Insurance..........................................................21
5.04 Corporate Franchises........................................................................21
5.05 Compliance with Statutes, Etc...............................................................21
5.06 Compliance with Environmental Laws..........................................................22
5.07 ERISA.......................................................................................22
5.08 Endof Fiscal Years; Fiscal Quarters.........................................................23
5.09 Paymentof Taxes.............................................................................23
5.10 Useof Proceeds, Margin Regulations..........................................................23
5.11 Year 2000 Compliance........................................................................23
5.12 Observation of Board of Directors...........................................................24
5.13 Intellectual Property Rights................................................................24
5.14 Ownershipof Subsidiaries....................................................................24
5.15 Corporate Separateness......................................................................24
5.16 Conductof Business; Maintenance of Licenses.................................................25
SECTION 6. NegativeCovenants....................................................................................25
6.01 Liens.......................................................................................25
6.02 Consolidation, Merger, Purchase or Sale of Assets, Etc......................................25
6.03 Dividends...................................................................................27
6.04 Indebtedness................................................................................27
6.05 Transactions with Affiliates................................................................28
6.06 Leverage Ratio..............................................................................28
6.07 Fixed Charge Coverage Ratio.................................................................28
6.08 Capital Expenditures........................................................................28
6.09 Restrictionson Additional Subordinated Indebtedness.........................................29
6.10 Limitationon Voluntary Payments and Modifications; Limitation on Modifications of
Certificate of Incorporation, By-Laws and Certain Other Agreements; Etc...................29
6.11 Limitationon Certain Restrictions on Subsidiaries...........................................29
6.12 Limitationon Issuance of Capital Stock......................................................30
6.13 Businessand Name Changes....................................................................30
6.14 Limitationon Creation of Subsidiaries.......................................................30
6.15 NoFurther Negative Pledges..................................................................30
6.16 NoPension Plans.............................................................................30
SECTION 7. Eventsof Default.....................................................................................30
7.01 Payments....................................................................................31
7.02 Representations,Etc.........................................................................31
7.03 Covenants...................................................................................31
7.04 DefaultUnder Other Agreements...............................................................31
(iii)
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7.05 Bankruptcy,Etc..............................................................................31
7.06 ERISA.......................................................................................31
7.07 Judgments...................................................................................32
7.08 Ownership...................................................................................32
7.09 Licenses....................................................................................32
SECTION 8. Definitionsand Accounting Terms......................................................................33
8.01 DefinedTerms................................................................................33
SECTION 9. Subordination........................................................................................44
9.01 Notes Subordinate to Senior Indebtedness....................................................44
9.02 Payment Over of Proceeds Upon Dissolution, etc..............................................45
9.03 Suspension of Payment in Certain Circumstances..............................................46
9.04 Subrogation to Rights of Holders of Senior Indebtedness.....................................46
9.05 Provisions Solely to Define Relative Rights.................................................46
9.06 No Waiver of Subordination Provisions.......................................................46
9.07 Reliance on Judicial Order or Certificate of Liquidating Agent..............................47
9.08 No Suspension of Remedies...................................................................47
9.09 Miscellaneous Subordination Provision.......................................................47
SECTION 10. Miscellaneous.......................................................................................47
10.01 Payment of Expenses, Etc...................................................................47
10.02 Right of Setoff............................................................................48
10.03 Notices....................................................................................49
10.04 Benefit of Agreement.......................................................................49
10.05 No Waiver; Remedies Cumulative.............................................................50
10.06 Payments Pro Rata..........................................................................50
10.07 Calculations;Computations..................................................................50
10.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.....................50
10.09 Counterparts...............................................................................51
10.10 Effectiveness..............................................................................51
10.11 Headings Descriptive.......................................................................51
10.12 Amendmentor Waiver.........................................................................51
10.13 Survival...................................................................................52
10.14 Domicile of Loans..........................................................................52
10.15 Post-Closing Obligations...................................................................52
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Note
Exhibit C Form of Section 2.04(b)(ii) Certificate
Exhibit D Form of Officer's Certificate
(iv)
Exhibit E Form of Opinion
Exhibit F Form of Secretary's Certificate
Exhibit G Form of Subordinated Guaranty
Exhibit H Form of Assignment and Assumption Agreement
Exhibit I Form of Subordination Agreement
SCHEDULES
Schedule I Commitments
Schedule 4.10 ERISA
Schedule 4.12 Real Property
Schedule 4.13 Capitalization
Schedule 4.14 Subsidiaries
Schedule 4.21 Existing Indebtedness
Schedule 4.24 Material Contracts
Schedule 5.03 Insurance
Schedule 6.01 Liens
Schedule 6.05 Transactions with Affiliates
(v)