_________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
_________________________
Date of report (Date of earliest event reported) March 4, 1998
Cablevision Systems Corporation
(formerly named CSC Parent Corporation)
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(Exact Name of Registrant as Specified in Charter)
Delaware 1-14764 11-3415180
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(State or Other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification No.)
One Media Crossways, Woodbury, New York 11797
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (516) 364-8450
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N/A
(Former Name of Address, if Changed since Last Report)
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INFORMATION TO BE INCLUDED IN THE REPORT
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On March 4, 1998 at 9:30 a.m. (E.S.T.) CSC Holdings, Inc. (formerly
named Cablevision Systems Corporation), a Delaware corporation ("Old
Cablevision"), completed a holding company restructuring (the "Holding Company
Transaction") pursuant to an Amended and Restated Contribution and Merger
Agreement, dated June 6, 1997 (the "Contribution and Merger Agreement"), by and
among Old Cablevision, Cablevision Systems Corporation (formerly named CSC
Parent Corporation), a Delaware corporation ("New Cablevision"), CSC Merger
Corporation, a Delaware corporation ("Merger Sub"), and TCI Communications,
Inc., a Delaware corporation ("TCI"). Pursuant to the Contribution and Merger
Agreement, each outstanding share of Old Cablevision Class A Common Stock, par
value $0.01 per share ("Old Cablevision Class A Common Stock"), and each
outstanding share of Old Cablevision Class B Common Stock, par value $0.01 per
share (together with the Cablevision Class A Common Stock, the "Old Cablevision
Common Stock"), were automatically converted on a share for share basis for
Class A Common Stock, par value $0.01 per share, of New Cablevision ("New
Cablevision Class A Common Stock") and Class B Common Stock, par value $0.01 per
share, of New Cablevision ("New Cablevision Class B Common Stock," and together
with the New Cablevision Class A Common Stock, the "New Cablevision Common
Stock"), respectively.
Acquired Businesses
In connection with the Holding Company Transaction, TCI caused to be
contributed to New Cablevision (the "Contribution") and New Cablevision acquired
all of the partnership interests and capital stock of certain entities
(collectively, the "Contributed Entities") owned by TCI and all the assets
(collectively, the "Contributed Assets") related to the business of certain
cable television systems owned and operated by TCI and located in New Jersey, on
Long Island and in New York's Rockland and Westchester counties. New Cablevision
issued to certain TCI entities (the "TCI Transferors") an aggregate of
12,235,543 shares of New Cablevision Class A Common Stock. In addition, New
Cablevision assumed certain liabilities related to the Contributed Entities and
Contributed Assets, including an aggregate amount of indebtedness for borrowed
money equal to $669 million. New Cablevision intends to continue the use of the
assets of the Contributed Assets and the Contributed Entities substantially as
used by TCI in the business of owning and operating cable television systems.
The description of these acquired businesses under the caption "The Companies --
The Contributed Businesses" in the Proxy Statement and Prospectus of Old
Cablevision and New Cablevision included
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in the Registration Statement (the "Prospectus"), a copy of which has been filed
as an exhibit hereto, is incorporated by reference. A further description of
these acquired businesses and New Cablevision after this acquisition is
contained in the Joint Press Release of New Cablevision, and
Tele-Communications, Inc. ("Tele-Communications") dated March 4, 1998, which is
filed as an exhibit hereto and incorporated by reference herein.
Related Party Transactions
Immediately following the Contribution, pursuant to a Master
Reorganization Agreement dated as of March 4, 1994 and a related Assignment and
Assumption Agreement, each of which is included as an exhibit hereto and
incorporated by reference herein, New Cablevision contributed its interest in
certain of the Contributed Entities and in all of the Contributed Assets to
wholly owned subsidiaries of New Cablevision. The description of this
transaction under the caption "Potential Related Transactions - The
Restructuring" in the Prospectus is hereby incorporated by reference.
Old Cablevision, New Cablevision, Tele-Communications and the Class B
Stockholders (as defined in the Voting Agreement) had entered into a Voting
Agreement, dated as of November 21, 1997 (the "Voting Agreement"), pursuant to
which, the Class B Entities, which collectively owned Old Cablevision stock
representing a majority of Old Cablevision's total voting power, had agreed to
vote and voted to approve and adopt the Contribution and Merger Agreement. The
description in the Voting Agreement under the caption "Certain Related
Agreements -- The Voting Agreement" in the Prospectus is hereby incorporated by
reference.
Simultaneously with the Contribution, New Cablevision, the TCI
Transferors, Tele-Communication and the Class B Entities (as defined in the
Stockholders Agreement) entered into a Stockholders Agreement (the "Stockholders
Agreement") providing, among other things, for: (i) certain share transfer
restrictions, (ii) certain rights to Board representation, (iii) consultation
and preemptive rights and (iv) registration rights. A copy of the Stockholders
Agreement has been filed as an exhibit hereto. The description of the
Stockholders Agreement under the caption "Certain Related Agreements -- The
Stockholders Agreement" in the Prospectus is hereby incorporated by reference.
Financing
Simultaneously with the Contribution, certain of the Contributed
Entities and certain subsidiaries of New Cablevision formed to hold the
Contributed Assets (collectively, the "Borrowers") entered into a $800 million
bridge revolving credit facility (the "Bridge Credit Agreement") with a group of
banks led by Toronto Dominion (Texas), Inc., as
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Administrative and Arranging Agent. The facility has a final maturity of March
4, 2000. The Bridge Credit Agreement has been filed as an exhibit hereto and is
incorporated by reference herein, and any description of the Bridge Credit
Agreement contained herein is qualified by reference thereto.
On March 4, 1998, New Cablevision borrowed $670 million under the $800
million facility available to the Borrowers and used the proceeds to repay the
amounts outstanding under the existing TCI credit facilities, certain
intercompany debt owed to TCI and certain expenses. Upon payment and
satisfaction of all outstanding indebtedness of the Contributed Entities and the
Contributed Assets in the aggregate amount of $669 million, the credit
agreements and notes governing such indebtedness were terminated.
On March 4, 1998, the Borrowers had total usage under their $800
million credit facility of $670 million. Unrestricted and undrawn funds
available to the Borrowers under the Bridge Credit Agreement amounted to
approximately $130 million at that date.
The Bridge Credit Agreement contains certain financial covenants that
may limit the Borrowers' ability to utilize all of the undrawn funds available
thereunder, including covenants requiring the Borrowers to maintain certain
financial ratios and restricting the permitted uses of borrowed funds.
Interest on outstanding amounts may be paid, at the option of the
Borrowers, based on various formulas which relate to the prime rate or rates
offered in the international interbank market for U.S. dollar deposits.
New Cablevision believes that for the Borrowers, internally generated
funds together with funds available under their existing credit agreement will
be sufficient to meet their debt service requirements and to fund its capital
expenditures through 1999.
ITEM 5. OTHER EVENTS
Consummation of Holding Company Transaction
Following consummation of the Holding Company Transaction, Old
Cablevision stockholders were not required to surrender their share certificates
for exchange. Each share certificate representing outstanding shares of Old
Cablevision Common Stock was automatically deemed to represent a like number of
shares of the same class of New Cablevision Common Stock.
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As a result of the Holding Company Transaction, New Cablevision has
become the holding company for Old Cablevision. In connection with the Holding
Company Transaction, Old Cablevision's name was changed to CSC Holdings, Inc.
and New Cablevision's name was changed to Cablevision Systems Corporation.
The shares of New Cablevision Common Stock issued in the transactions
were registered under the Securities Act of 1933 pursuant to New Cablevision's
Registration Statement on Form S-4 (No. 333-44547, declared effective January
20, 1998). Reference is made to the Prospectus for additional information about
this transaction.
Listing of New Cablevision; Succession of New Cablevision to Old
Cablevision
The Old Cablevision Class A Common Stock was registered pursuant to
Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Pursuant to Rule 12g-3(a) under the Exchange Act, the shares of New
Cablevision Class A Common Stock are deemed to be registered under Section 12(b)
of the Exchange Act. Old Cablevision has filed a Form 15 with the Securities and
Exchange Commission to terminate the registration under the Exchange Act of the
Old Cablevision Class A Common Stock.
The Old Cablevision Class A Common Stock was listed on the American
Stock Exchange ("AMEX"). The shares of New Cablevision Class A Common Stock
issued in the transaction discussed above have been approved for listing on the
AMEX in substitution of the Old Cablevision Class A Common Stock and will
continue to trade under the symbol "CVC" on the AMEX. The description of the New
Cablevision Class A Common Stock contained under the caption "Description of
Parent Capital Stock" in the Prospectus is incorporated by reference herein.
The preferred stock and debt of Old Cablevision remained unchanged as
securities of CSC Holdings, Inc., except that Old Cablevision's 8 1/2%
Cumulative Convertible Exchangeable Preferred Stock, par value $0.01 per share
(the "Series I Preferred Stock"), in accordance with its terms, became
convertible into New Cablevision Class A Common Stock instead of being
convertible into Old Cablevision Class A Common Stock and the convertible
subordinated debentures that may be issued by Old Cablevision in exchange for
the Series I Preferred Stock will be, when and if issued, convertible into New
Cablevision Class A Common Stock instead of being convertible into Old
Cablevision Class A Common Stock. The Series I Preferred Stock is listed on the
AMEX and will remain listed as 8 1/2% Series I Cumulative Convertible
Exchangeable Preferred Stock of CSC Holdings, Inc. The Series I Preferred Stock
will continue to trade under the symbol "CVCp" on the AMEX.
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Second Supplemental Indenture
Old Cablevision and The Bank of New York, as trustee, entered into a
Second Supplemental Indenture (the "Second Supplemental Indenture) dated as of
March 4, 1998 in order to supplement the First Supplemental Indenture dated
November 1, 1995 between Old Cablevision and The Bank of New York, as trustee,
to reflect the Holding Company Restructuring. A form of the Second Supplemental
Indenture is filed as an exhibit hereto and is incorporated by reference herein.
One-for-One Stock Dividend
The Board of Directors of New Cablevision declared on March 4, 1998 a
common stock dividend of one share of New Cablevision Class A Common Stock, in
respect of each issued and outstanding share of New Cablevision Class A Common
and one share of New Cablevision Class B Common Stock, in respect of each issued
and outstanding share of New Cablevision Class B Common Stock. The stock
dividend is payable on March 30, 1998 to stockholders of record at the close of
business on March 19, 1998. As a result of the stock dividend, the conversion
price of the Series I Preferred Stock and, when and if issued, the Exchange
Debentures will be reduced in accordance with their respective terms from $67.44
to $33.72. For a description of the stock dividend, see the Press Release of New
Cablevision dated March 4, 1998, attached as an exhibit hereto and incorporated
by reference herein.
Rainbow Program Enterprises
Effective as of the closings under the Contribution and Merger
Agreement, certain minority limited partners in Rainbow Program Enterprises, a
New York limited partnership and a subsidiary of Old Cablevision, contributed to
New Cablevision their limited partnership interests in exchange for 52,000
shares of New Cablevision Class A Common Stock. The description of this
transaction under the caption "Potential Related Transactions -- The Partnership
Contribution" in the Prospectus is hereby incorporated by reference.
Purchase of Interests in Cablevision of New York City, L.P.
On March 4, 1998, pursuant to a letter agreement, dated November 25,
1997 between Charles F. Dolan and Old Cablevision, a wholly-owned subsidiary of
Old Cablevision purchased Charles Dolan's remaining interests in Cablevision of
New York City, L.P. ("Cablevision of NYC") for a cash payment of approximately
$194 million. Old
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Cablevision financed the $194 million payment with borrowings under its
principal bank credit facility. As a result of the purchase, Cablevision of NYC
is wholly-owned by Old Cablevision. The description of this transaction under
the caption "Potential Related Transactions -- The Dolan Partnership
Transaction" in the Prospectus is hereby incorporated by reference.
At-Home Transaction
Effective October 2, 1997, Old Cablevision entered into a Letter
Agreement and Term Sheet (the "Letter Agreement") with At Home Corporation ("At
Home"), CSC At Home Holdings Corporation, a wholly owned subsidiary of Old
Cablevision ("CSC At Home"), Comcast Corporation ("Comcast"), Cox Enterprises,
Inc. ("Cox"), Kleiner, Perkins, Caufield & Byers and Tele-Communications
pursuant to which Old Cablevision agreed to enter into agreements for the
distribution of the At Home service over Old Cablevision's cable television
systems on the same terms and conditions as Cox, Comcast and
Tele-Communications. Pursuant to the Letter Agreement, At Home issued to CSC At
Home a warrant (the "Warrant") to purchase up to 7,875,784 shares of At Home's
Series A Common Stock at an exercise price of $0.50 per share. The Warrant was
immediately exercisable, subject to the receipt of all necessary governmental
consents and approvals. Also pursuant to the Letter Agreement, At Home issued to
CSC At Home a warrant (the "Contingent Warrant") to purchase up to an additional
3,071,152 shares of At Home's Series A Common Stock at an exercise price of
$0.50 per share. The Contingent Warrant is exercisable, subject to the receipt
of all necessary governmental consents and approvals, as and to the extent
certain cable television systems, including those systems included in the
Contribution, are transferred from Tele-Communications and its controlled
affiliates to Old Cablevision, New Cablevision or their controlled affiliates.
As a result of the Contribution, the Contingent Warrant became immediately
exercisable, subject to the receipt of all necessary governmental consents and
approvals as to 2,355,514 of the 3,071,152 shares of At Home Series A Common
Stock covered thereby. The balance of the shares covered by the Contingent
Warrant will become exercisable if, as and when the pending acquisition of
certain Connecticut cable television systems owned by affiliates of TCI is
consummated. For a description of the pending acquisition of the Connecticut
cable television systems, please see Old Cablevision's February 6, 1998 Current
Report on Form 8-K, filed as an exhibit hereto and incorporated by reference
herein.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
(c) Exhibits - See Exhibit Index
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CABLEVISION SYSTEMS CORPORATION
(formerly named CSC Parent Corporation)
By /s/ William J. Bell
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Name: William J. Bell
Title: Vice Chairman
DATE: March 18, 1998
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EXHIBIT INDEX
2.1 Amended and Restated Contribution and Merger Agreement (incorporated
by reference to Appendix A to the Form S-4 Registration Statement filed
as Exhibit 99.1 hereto).
4.1 Stockholders Agreement, dated as of March 4, 1998, by and among Old
Cablevision, Tele-Communications, Inc., a Delaware corporation, the
Class B Entities (as defined in the Stockholders Agreement) and the
Investors (as defined in the Stockholders Agreement).
4.2 Form of Supplemental Indenture, dated as of March 4, 1998 between CSC
Holding, Inc. and The Bank of New York, as trustee.
10.1 Credit Agreement, dated as of March 4, 1998, among CSC TKR, Inc.,
Cablevision of Brookhaven, Inc., Cablevision of Oakland, Inc.,
Cablevision of Paterson, Inc., CSC TKR I, Inc and UA-Columbia
Cablevision of Westchester, Inc., the Guarantors signatories thereto,
the Banks parties thereto, together with their respective successors
and assigns, Toronto Dominion (Texas), Inc., as Arranging Agent and as
Administrative Agent, and The Bank of New York, The Bank of Nova
Scotia, The Canadian Imperial Bank of Commerce, NationsBank of Texas,
N.A. and The Chase Manhattan Bank, as Managing Agents.
10.2 Master Reorganization Agreement dated as of March 4, 1998 between New
Cablevision and Old Cablevision.
99.1 CSC Parent Corporation Proxy Statement/Prospectus on Form S-4 (the
"Form S-4 Registration Statement") (incorporated by reference to the
registration statement on Form S-4 of CSC Parent Corporation, filed on
January 20, 1998 (Reg. No. 333-44547)).
99.2 Joint Press Release, dated March 4, 1998, of Tele-Communications, Inc.
and Cablevision Systems Corporation.
99.3 Press Release, dated March 4, 1998 of Cablevision Systems Corporation.
99.4 Old Cablevision Current Report on Form 8-K, filed on February 6, 1998
(incorporated by reference to Form 8-K of Cablevision Systems
Corporation, filed on February 6, 1998).
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Execution Copy
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is entered into as of
March 4, 1998, by and among Cablevision Systems Corporation, a Delaware
corporation (including any successor pursuant to this Agreement, the "Parent"),
TeleCommunications, Inc., a Delaware corporation (including any successor
pursuant to this Agreement, the "Company"), and the Class B Entities (as defined
below).
WHEREAS, Parent, TCI Communications, Inc. and the Company have entered
into an Amended and Restated Contribution and Merger Agreement dated as of June
6, 1997 (the "Merger Agreement") providing for, among other things, the
Contribution and the Merger;
WHEREAS, the respective boards of directors of each of Parent and the
Company have approved this Agreement;
WHEREAS, upon consummation of the Transactions pursuant to the Merger
Agreement, the Company and the Class B Entities will Beneficially Own (as
defined below) Shares (as defined below) and the Class B Entities will
Beneficially Own in the aggregate Shares constituting a majority of the Total
Voting Power (as defined below);
WHEREAS, the execution and delivery of this Agreement by the parties
hereto is a condition to the consummation of the Contribution Closing; and
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements as provided in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
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1. Certain Definitions. (a) Capitalized terms that are used but not
otherwise defined herein shall have the meanings given to them in the Merger
Agreement.
(b) For the purposes of this Agreement, the following terms shall have
the following meanings:
"Affiliate" and "Associate" when used with reference to any Person
shall have the meanings assigned to such terms in Rule 12b-2 of the Exchange Act
as in effect of the date hereof; provided, that Parent and its Subsidiaries and
the officers and directors of Parent and its Subsidiaries who are not Investor
Directors and who are not directors or officers of the Company or any of its
Subsidiaries shall not, solely as a result of holding such office of Parent or
any of its Subsidiaries, be deemed Affiliates or Associates of any Investor for
purposes of this Agreement.
"Acquisition Transaction" shall mean (i) any merger or other business
combination or reorganization transaction involving Parent or any of its
Subsidiaries or (ii) any transaction involving the acquisition of capital stock
or assets or assumption of liabilities of any Person by Parent or any of its
Subsidiaries the fair market value of which exceeds $5 million in the aggregate
and which is not made in the ordinary course of business.
"Annualized Operating Cash Flow" shall mean, as of any date, an amount
equal to Operating Cash Flow for the period of three complete consecutive
calendar months ending on or most recently prior to such date, multiplied by
four.
A Person shall be deemed the "Beneficial Owner", and to have
"Beneficial Ownership" of, and to "Beneficially Own," any securities as to which
such Person is or may be deemed to be the beneficial owner pursuant to Rule
13d-3 and 13d-5 under the Exchange Act, as such rules are in effect on the date
of this Agreement, as well as any securities as to which such Person has the
right to become Beneficial Owner (whether such right is exercisable immediately
or only after the passage of time or the occurrence of conditions)
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pursuant to any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with respect
to a bona fide public offering of securities), or upon the exercise of
conversion rights, exchange rights, rights, warrants or options, or otherwise;
provided, however, that no Person shall be deemed the "Beneficial Owner" or to
have "Beneficial Ownership" of, or to "Beneficially Own," any Shares solely by
virtue of the rights set forth in Sections 7, 8, 9 and 10; provided, further,
that a Person shall not be deemed the "Beneficial Owner", or to have "Beneficial
Ownership" of, or to "Beneficially Own", any Shares (i) solely because such
Shares have been tendered pursuant to a tender or exchange offer made by such
Person, or any of such Person's Affiliates or Associates, until such tendered
Shares are accepted for payment or exchange or (ii) solely because such Person,
or any of such Person's Affiliates or Associates, has or shares the power to
vote or direct the voting of such Shares pursuant to a revocable proxy given in
response to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations under the Exchange Act,
except if such power (or the arrangements relating thereto) is then reportable
under Item 6 of Schedule 13D under the Exchange Act (or any similar provision of
a comparable or successor report). For purposes of this Agreement, in
determining the percentage of the outstanding Shares with respect to which a
Person is the Beneficial Owner, all Shares as to which such Person is deemed the
Beneficial Owner shall be deemed outstanding.
"Board" shall mean the Board of Directors of Parent.
"Cash Flow Ratio" shall mean, as of any date, the ratio of (A) the sum
of (i) the aggregate principal amount of all Indebtedness of Parent and its
Indenture Restricted Subsidiaries plus (ii) the aggregate Redemption Amounts on
such date in respect of all outstanding preferred stock of Parent and any of its
Indenture Restricted Subsidiaries, to (B) Annualized Operating Cash Flow
determined as of the last day of the calendar month which precedes such date by
at least 10 business days.
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"Cash Flow Ratio Threshold" shall mean 8.0 to 1.0 until and through
December 31, 1998; 7.75 to 1.0 from January 1, 1999 until and through December
31, 1999; and 7.5 to 1.0 after December 31, 1999.
"Change of Control" shall mean, with respect to the Investor or any
Class B Entity (other than any Class B Entity that is a natural person), any
transaction or series of transactions occurring after the date that such Person
becomes subject to this Agreement pursuant to which any Person becomes the
Beneficial Owner of Voting Securities of the Investor or such Class B Entity
that have the power to cast at least 50% of the votes entitled to be cast in
elections of directors (or similar officials) of the Investor or such Class B
Entity, as the case may be; provided, that if the Investor or Class B Entity is
a trust, this definition shall apply when any Person becomes the Beneficial
Owner of interests in such trust constituting at least 50% of the beneficial
interest.
"Class B Entities" shall mean Charles F. Dolan, Charles F. Dolan 1997
Grantor Retained Annuity Trust, Dolan Descendants Trust, Dolan Progeny Trust,
Dolan Grandchildren Trust, Dolan Spouse Trust, DC Kathleen Trust, DC Deborah
Trust, DC Marianne Trust, DC Patrick Trust, DC Thomas Trust, DC James Trust, CFD
Trust No. 1, CFD Trust No. 2, CFD Trust No. 3, CFD Trust No. 4, CFD Trust No. 5,
CFD Trust No. 6 and CFD Trust No. 10.
"Closing Date" shall mean the date of the Contribution Closing.
"Competitor" shall mean a competitor of Parent or any of its
Subsidiaries in one or more of Parent's or any of its Subsidiaries' significant
lines of business.
"Controlled Subsidiary" shall mean, with respect to any Person, a
Subsidiary at least a majority of the Voting Securities and other equity
interests of which are owned, directly or indirectly, by such Person.
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"Family Members" shall mean, with respect to any natural person, such
person's spouse, siblings, descendants and any spouse of such siblings and
descendants and descendants of such siblings, including for this purpose persons
in a step or adoptive relationship.
"Group" shall have the meaning assigned to such term in Rule 13d-5
under the Exchange Act as in effect on the date hereof.
"Holding Company Merger" shall mean any merger or other business
combination or reorganization transaction where the stockholders of Parent
immediately prior to such transaction will Beneficially Own in the aggregate
100% of the surviving corporation's Voting Securities and other equity interests
immediately following such transaction in the same proportion as immediately
prior to such transaction subject only to any disproportionality resulting
solely from any issuance of Shares in the Partnership Contribution.
"Indebtedness" shall have the meaning set forth in the Indenture.
"Indenture" shall mean the Indenture dated as of November 1, 1995,
between CSC and The Bank of New York, as Trustee, as in effect on the date of
the Merger Agreement and without regard to whether such Indenture shall be in
effect or amended in any respect.
"Indenture Restricted Subsidiary" shall mean "Restricted Subsidiary" as
defined in the Indenture as applied to Parent as opposed to CSC.
"Investor" shall mean the Company or any Permitted Transferee that may
from time to time become a party as the Investor to a counterpart of this
Agreement.
"Minority Shares" shall mean the Voting Securities of Parent that are
Beneficially Owned by Minority Stockholders.
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"Minority Stockholders" shall mean the Beneficial Owners of Voting
Securities of Parent who (i) are not the Investor or a Class B Entity, or
Affiliates or Associates of the Investor or a Class B Entity, and (ii) are not
members of a Group of which the Investor or a Class B Entity, or Affiliates or
Associates of the Investor or a Class B Entity, are members with respect to
Voting Securities of Parent.
"Operating Cash Flow" shall mean, for any period, "Operating Cash Flow"
as defined in the Indenture as applied to Parent and its Indenture Restricted
Subsidiaries on a consolidated basis.
"Outstanding Share Capital" shall mean, from time to time, the issued
and outstanding Shares, excluding any treasury Shares.
"Parent Share Issuance Commitments" shall mean those commitments to
issue Shares set forth in Schedule 1.
"Permitted Transferee" shall mean a permitted transferee under Section
6(a) or Section 6(h).
"Qualified Parties" shall mean, with respect to any Person, any (i)
trust described in Section 664 of the Code or other trust of which the Person or
Family Members or Qualified Parties of the Person are greater than 50% income
beneficiaries, (ii) charitable organization described in Section 501(c)(3) of
the Code, (iii) with respect to any Class B Entity that is a natural person,
estate of such natural person and (iv) Family Members of any Person that is a
natural person.
"Redemption Amounts" shall mean the sum of all amounts payable (whether
or not then due) by Parent or any of its Indenture Restricted Subsidiaries (or
principal amount of indebtedness issuable by Parent or any of its Indenture
Restricted Subsidiaries) in respect of any preferred stock of Parent or any of
its Indenture Restricted Subsidiaries which is by its terms at any time required
to be redeemed, purchased or otherwise retired or extinguished
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(other than by delivery of common stock or of preferred stock of Parent or its
Indenture Restricted Subsidiaries), or which by its terms is convertible into
any Indebtedness of Parent or any Indenture Restricted Subsidiary at a fixed or
determinable date, at the option of any Person other than Parent or such
Indenture Restricted Subsidiary or upon the occurrence of a condition not solely
within the control of Parent or such Indenture Restricted Subsidiary, or which
by its terms is convertible into preferred stock of Parent or any of its
Indenture Restricted Subsidiaries that can be so redeemed, retired, extinguished
or converted.
"Restricted Subsidiary" shall mean any Significant Subsidiary of Parent
other than Madison Square Garden L.P.
"Shares" shall mean the Parent Class A Shares and Parent Class B Shares
and any other shares of common stock of Parent.
"Special Committee" shall mean the committee of directors of the Board
formed pursuant to Article II, Section 9 of the By-laws of Parent.
"Special Directors" shall mean those directors of the Board who are
members of the Special Committee.
"Subsidiary" shall mean, with respect to any Person, any entity at
least 50% of the Voting Securities of which are owned directly or indirectly by
such Person.
"Total Voting Power" shall mean the aggregate votes that are entitled
to be cast by all Shares, calculated with respect to any Person in accordance
with Rule 13d-3(d)(1)(i) under the Exchange Act.
"Transfer" shall mean (i) any direct or indirect sale, transfer,
assignment, pledge, hypothecation, mortgage, or other disposition or
encumbrance, including those by operation or succession of law, merger or
otherwise, and (ii) with respect to any Shares that are Beneficially Owned by
the Investor, any Change of
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Control of such Investor where, at the time immediately following such Change of
Control, the fair market value of such Shares represents more than 20% of the
fair market value of all assets of such Investor and (iii) with respect to any
Shares that are Beneficially Owned by any Class B Entity, any Change of Control
of such Class B Entity.
"Ultimate Parent Entity" shall mean, with respect to any Person that is
a Subsidiary of a Person, the Person that, directly or indirectly, Beneficially
Owns at least 50% of the Voting Securities of such Subsidiary and is not a
Subsidiary of any Person who is not a natural person.
"Voting Securities" shall mean any securities entitled to vote in the
ordinary course in the election of directors or of Persons serving in a similar
governing capacity of any partnership, limited liability company or other
entity, including the voting rights attached to such securities.
(c) For the purposes of this Agreement, the following terms shall have
the meanings assigned to them in the corresponding Sections of this Agreement
(whether or not such Sections have been terminated):
Term Section
---- -------
Agreement......................................................Recitals
Company........................................................Recitals
Demand Registration............................................Annex A
Drag-Along Transaction.........................................8(b)
Investor Directors.............................................11(a)
Investor Proposal Notice.......................................9(a)
Merger Agreement...............................................Recitals
Parent.........................................................Recitals
Piggy-back Registration........................................Annex A
Proposal Notice................................................7(a)
Tag-Along Transaction..........................................8(a)
Transfer Transaction...........................................7(a)
2. Representations of the Company. As of the date hereof, the Company
represents and warrants to Parent and to each of the Class B Entities that:
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(a) other than those Voting Securities of CSC or Shares issued in
exchange thereof in the Merger disclosed to Parent prior to the Contribution
Closing, the Company does not Beneficially Own any Shares other than those
Shares issued in connection with the Contribution at the Contribution Closing;
(b) the Company has all requisite corporate power and authority and has
taken all corporate action necessary in order to execute and deliver this
Agreement;
(c) this Agreement has been duly executed and delivered by the Company
and is a valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, subject to the Bankruptcy and Equity
Exception;
(d) no notices, reports or other filings are required to be made by the
Company with, nor are any consents, registrations, approvals, permits or author-
izations required to be obtained by the Company from, any Governmental Entity,
in connection with the execution and delivery of this Agreement by the Company,
except those that have been made or obtained or that the failure to make or
obtain are not, individually or in the aggregate, reasonably likely to prevent,
materially delay or materially impair the ability of the Company to consummate
the transactions contemplated by this Agreement; and
(e) the execution, delivery and performance of this Agreement by the
Company do not, and the consummation by the Company of the transactions
contemplated hereby will not, constitute or result in (i) a breach or violation
of, or a default under, the certificate of incorporation or by-laws of the
Company, (ii) a breach of or violation of or a default under, or the
acceleration of any obligations of or the creation of a Lien on the assets of
the Company (with or without notice, lapse of time or both) pursuant to, any
Contracts binding upon the Company or any Law or governmental or
non-governmental permit or license to which the Company is subject or (iii) any
change in the rights or
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obligations of any party under any of such Contracts to which the Company is a
party, except, in the case of clause (ii) or (iii) above, for any breach,
violation, default, acceleration, creation or change that, individually or in
the aggregate, is not reasonably likely to prevent, materially delay or
materially impair the ability of the Company to consummate the transactions
contemplated by this Agreement.
3. Representations of the Class B Entities. As of the date hereof, the
Class B Entities each severally represents and warrants to the Company and to
Parent that:
(a) such Class B Entity Beneficially Owns such Shares as set forth
opposite its name in Schedule 3 hereto;
(b) such Class B Entity has all requisite power and authority
(corporate or otherwise) and has taken all action (corporate or otherwise)
necessary in order to execute and deliver this Agreement;
(c) this Agreement has been duly executed and delivered by such Class B
Entity and is a valid and binding agreement of such Class B Entity enforceable
against it in accordance with its terms, subject to the Bankruptcy and Equity
Exception;
(d) no notices, reports or other filings are required to be made by
such Class B Entity with, nor are any consents, registrations, approvals,
permits or authorizations required to be obtained by such Class B Entity from,
any Governmental Entity, in connection with the execution and delivery of this
Agreement by such Class B Entity, except those that have been made or obtained
or that the failure to make or obtain are not, individually or in the aggregate,
reasonably likely to prevent, materially delay or materially impair the ability
of such Class B Entity to consummate the transactions contemplated by this
Agreement; and
(e) the execution, delivery and performance of this Agreement by such
Class B Entity does not, and the
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consummation by such Class B Entity of the transactions contemplated hereby will
not, constitute or result in (i) a breach or violation of, or a default under,
the certificate of incorporation or by-laws of such Class B Entity or any of its
comparable governing instruments, (ii) a breach of or violation of or a default
under, or the acceleration of any obligations of or the creation of a Lien on
the assets of such Class B Entity (with or without notice, lapse of time or
both) pursuant to, any Contracts binding upon such Class B Entity or any Law or
governmental or non-governmental permit or license to which such Class B Entity
is subject or (iii) any change in the rights or obligations of any party under
any of such Contracts to which such Class B Entity is a party, except, in the
case of clause (ii) or (iii) above, for (x) Contracts, Laws, permits and
licenses also binding upon CSC or to which CSC or its business also is subject
and (y) any breach, violation, default, acceleration, creation or change that,
individually or in the aggregate, is not reasonably likely to prevent,
materially delay or materially impair the ability of such Class B Entity to
consummate the transactions contemplated by this Agreement.
4. Representations of Parent. As of the date hereof, Parent represents
and warrants to the Company and the Class B Entities that:
(a) Parent has all requisite corporate power and authority and has
taken all corporate action necessary in order to execute and deliver this
Agreement;
(b) this Agreement has been duly executed and delivered by Parent and
is a valid and binding agreement of Parent enforceable against Parent in
accordance with its terms, subject to the Bankruptcy and Equity Exception;
(c) no notices, reports or other filings are required to be made by
Parent with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by Parent from, any Governmental Entity,
in connection with the execution and delivery of this Agreement by Parent,
except those that have been made or obtained or that the failure to make or
obtain are not, individually or
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in the aggregate, reasonably likely to prevent, materially delay or materially
impair the ability of Parent to consummate the transactions contemplated by this
Agreement; and
(d) the execution, delivery and performance of this Agreement by Parent
do not, and the consummation by Parent of the transactions contemplated hereby
will not, constitute or result in (i) a breach or violation of, or a default
under, the certificate of incorporation or by-laws of Parent, (ii) a breach of
or violation of or a default under, or the acceleration of any obligations of or
the creation of a Lien on the assets of Parent (with or without notice, lapse of
time or both) pursuant to, any Contracts binding upon Parent or any Law or
governmental or non-governmental permit or license to which Parent is subject or
(iii) any change in the rights or obligations of any party under any of such
Contracts to which Parent is a party, except, in the case of clause (ii) or
(iii) above, for any breach, violation, default, acceleration, creation or
change that, individually or in the aggregate, is not reasonably likely to
prevent, materially delay or materially impair the ability of Parent to
consummate the transactions contem plated by this Agreement.
5. Standstill Provisions. The Investor shall not, and shall not suffer
or permit any Subsidiaries of the Investor to or, to the extent the Investor
possesses the power to prevent, permit any Affiliates or Associates of the
Investor to (and shall use all reasonable best efforts to cause such Affiliates
and Associates not to), whether acting alone or in concert with others:
(a) form, join or participate in, or encourage the formation of, a
Group with respect to any Shares, other than a Group consisting solely of the
Investor, or Affiliates or Associates of the Investor, of Class B Entities or of
Qualified Parties of Class B Entities or the Investor;
(b) deposit any Shares into a voting trust or (except as provided in
this Agreement) subject any such
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Shares to any arrangement or agreement with respect to the voting or Transfer
thereof, other than any such trust, arrangement or agreement (i) the only
parties to, or beneficiaries of which, are the Investor or any Controlled
Subsidiaries of the Investor, any of the Class B Entities, Parent or any
Qualified Parties of the Investor or any of the Class B Entities and (ii) the
terms of which prohibit any party thereto from acting in a manner inconsistent
with this Agreement; provided, that all of the Shares deposited into any such
trust or subjected to any such arrangement or agreement shall be deemed to be
Beneficially Owned by the Investor or Affiliates or Associates of the Investor
for all purposes of this Agreement;
(c) (i) except for Shares acquired in the Contribution or upon exercise
of the Investor's rights set forth in Section 7 or 10, purchase or otherwise
acquire Beneficial Ownership of or otherwise Beneficially Own any Voting
Securities of Parent such that the Investor, together with the Affiliates of the
Investor, will Beneficially Own 10% or more of the Parent Class A Shares (it
being understood and agreed that any Shares acquired and from time to time
Beneficially Owned by the Investor and its Affiliates as a result of the
ownership of the Voting Securities of CSC and the exchange thereof in the Merger
as disclosed to Parent pursuant to Section 2(a) shall be included and count
toward such 10% threshold), or (ii) at any time purchase or otherwise acquire
any Shares in violation of Regulation M under the Exchange Act (or any successor
provision) and the policies of the SEC promulgated thereunder;
(d) effect or agree to effect any reduction in its equity interest in
Parent for up to 180 days following delivery by Parent of a written notice that
Parent is proposing to consummate a business combination to be accounted for as
a pooling of interests; provided, that this restriction shall terminate if
Parent has not consummated such business combination within 90 days of the date
of such written notice and provided, further, that this restriction shall be
inapplicable to the extent any reduction would not
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adversely affect the accounting treatment of such business combination as a
pooling of interests; or
(e) advise, assist (including by knowingly providing or arranging
financing for that purpose) or knowingly encourage, induce or attempt to
encourage or induce any other Person to take any actions referred to in the
foregoing paragraphs (a) through (d).
6. Share Transfers. The Investor shall not Transfer, in any single
transaction or group of related transactions, any Shares that are Beneficially
Owned by the Investor, except for a Transfer in connection with a Holding
Company Merger or pursuant to Section 8 or for a Transfer that complies with any
of the following subsections:
(a) a Transfer (i) of all (but not less than all) of such Shares to any
Controlled Subsidiary of the Company or (ii) of all or any of such Shares to a
Subsidiary all of the Voting Securities and all of the equity securities (other
than preferred stock held by institutional or public investors) of which are
Beneficially Owned, directly or indirectly, by the Company; provided, that
contemporaneously with any such Transfer such Controlled Subsidiary or wholly
owned Subsidiary, as the case may be, becomes a party to a counterpart of this
Agreement and the Investor and the Company guarantee the performance of all
obligations of such Controlled Subsidiary or wholly owned Subsidiary, as the
case may be, under this Agreement; provided, further, that such Controlled
Subsidiary or wholly owned Subsidiary, as the case may be, and the Company shall
prior to such Transfer covenant and agree with Parent and the Class B Entities
that, for so long as the Controlled Subsidiary or wholly owned Subsidiary, as
the case may be, Beneficially Owns such Shares, it shall continue to be a
Controlled Subsidiary or wholly owned Subsidiary, as the case may be, of the
Company;
(b) a Transfer of all or any of such Shares to any Person such that
such Person, together with the Affiliates and Associates of such Person, will
not Beneficially Own, after giving effect to such Transfer,
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Voting Securities of Parent constituting 10% or more of the outstanding Parent
Class A Shares or Shares constituting 5% or more of the Outstanding Share
Capital; provided, that the Investor shall not, and shall not suffer or permit
any Subsidiaries of the Investor to or, to the extent the Investor has the power
to prevent, permit any Affiliates or Associates of the Investor to (and shall
use all reasonable best efforts to cause such Affiliates and Associates not to),
in any case, form, join or participate in or encourage the formation of a Group
with such Person or any Affiliates or Associates of such Person;
(c) a sale of all or any of such Shares to any Person that is conducted
publicly through one or more registered broker-dealers over the AMEX or such
other stock exchange or interdealer quotation service where Parent Class A
Shares may be listed or quoted pursuant to which the sale of such Shares will be
in a manner to effect a broad distribution, with such distribution certified to
Parent by the lead broker-dealer in any such sale;
(d) a Transfer of all or any of such Shares to underwriters in
connection with an underwritten public offering of such Shares on a firm
commitment basis registered under the Securities Act pursuant to which the sale
of such Shares will be in a manner to effect a broad distribution, with such
distribution certified to Parent by the lead or managing underwriter or
underwriters in any such offering;
(e) a Transfer of all or any of such Shares to Parent or any Controlled
Subsidiary of Parent;
(f) for so long as the Parent Class B Shares are entitled in accordance
with their terms to elect 75% of the Board, a Transfer of all or any of such
Shares to any Class B Entity;
(g) a Transfer of all or any of such Shares in a bona fide pledge of
such Shares to a financial institution to secure borrowings as permitted by
applicable Law; provided, that contemporaneously with such pledge such
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financial institution agrees with Parent that upon any foreclosure on such
pledge it shall be bound by the obligations of the Company and the Investor
under this Agreement (but shall not have any of the rights of the Company and
the Investor under this Agreement except as provided in this Section and in
Sections 11, 14(c), 15 and 16 pursuant to an assignment effected in accordance
with the terms hereof); or
(h) a Transfer of all (but not less than all) of such Shares to any
Person after complying with all of the provisions set forth in Section 9;
provided, that contemporaneously with such Transfer (i) such Person becomes a
party to a counterpart of this Agreement as the Investor (whereupon, subject to
Section 16(f), any reference to the Investor herein shall be deemed to be a
reference to such Person), (ii) if such Person is a Subsidiary of any other
Person that is not a natural person, the Ultimate Parent Entity of such Person
shall also become a party to a counterpart of this Agreement and assume all
obligations of the Company hereunder (whereupon, subject to Section 16(f), any
reference to the Company herein shall be deemed to be a reference to such
Ultimate Parent Entity) and (iii) such Person causes to be delivered to Parent a
legal opinion of counsel of national standing, in form and substance reasonably
acceptable to Parent, to the effect set forth in Sections 2(b) and 2(c).
7. The Company's Right of Consultation with Parent and the Class B
Entities. The Company, Parent and the Class B Entities hereby agree with each
other that, until the date that the Investor ceases to be entitled to nominate
two Investor Directors pursuant to Section 11(a) or, if earlier and at such time
the Investor does not Beneficially Own at least 33% of the Outstanding Share
Capital or such lesser percentage that results solely from any dilution for
issuances for which no preemptive rights under Section 10 are given to the
Investor or results solely from dilution for issuances for which no
anti-dilution adjustment was required to be made under the Merger Agreement, ten
years from the date hereof, the Company, Parent and the Class B Entities shall
be entitled to the respective rights and be
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subject to the respective obligations set forth in this Section:
(a) Notice. Prior to (i) the Class B Entities effecting a Transfer
(other than in a bona fide pledge or grant of security interest to a financial
institution to secure borrowings) of Shares to any Person (other than any Class
B Entity or any Qualified Parties or Controlled Subsidiaries of any Class B
Entities) in any transaction or series of transactions pursuant to which there
is a Transfer of Shares that would constitute at least 10% of the Total Voting
Power, (ii) Parent or its Subsidiaries effecting a Transfer (other than in a
bona fide pledge or grant of security interest to a financial institution to
secure borrowings) of Beneficial Ownership of capital stock or other equity
interests in any Restricted Subsidiary other than to Parent or to a Controlled
Subsidiary or stockholders of Parent or (iii) Parent or its Subsidiaries
effecting a Transfer (other than in a bona fide pledge or grant of security
interest to a financial institution to secure borrowings) of a substantial
portion of the assets of Parent or any Restricted Subsidiary other than to
Parent or to a Controlled Subsidiary of Parent (collectively, a "Transfer
Transaction"), Parent or the Class B Entity desiring to make such a Transfer
shall first notify the Company in writing (a "Proposal Notice") of the
possibility of such a transaction and the number of and a description of the
interests contemplated to be Transferred.
(b) Consultation. Following the Company's receipt of the Proposal
Notice, Parent or the Class B Entity sending the notice shall discuss with the
Company the possibility of effecting a Transfer Transaction with the Company. If
the Company wishes to pursue such a transaction and is capable of completing a
Transfer Transaction, then, for a period of 30 days after the Company's receipt
of the Proposal Notice (or such shorter period if the Company responds in
writing that it is not interested in pursuing such a transaction), Parent or the
Class B Entity shall negotiate in good faith and exclusively with the Company to
determine whether it is possible to agree to a Transfer Transaction with the
Company but shall not be obligated to
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enter into any agreement with the Company to do so. Parent or the Class B Entity
shall be free to negotiate and to initiate and hold discussions with other
potential purchasers at any time before the Proposal Notice or after the
expiration of such 30-day or shorter period and may agree to enter into a
Transfer Transaction at any time after the expiration of such 30-day or shorter
period even if such Transfer Transaction has a lower value to Parent or the
Class B Entity than any transaction proposed by the Company. The Company agrees
to keep confidential the fact that Parent or a Class B Entity is considering
effecting a Transfer Transaction, the possible terms thereof and any
confidential information obtained by the Company in pursuing negotiations
contemplated by this Section or otherwise obtained from Parent or any of the
Class B Entities or their respective representatives.
8. The Investor's Tag-Along Rights; the Class B Entities' Drag-Along
Rights. The Company and the Class B Entities hereby agree with each other that,
for so long as the Parent Class B Shares are entitled in accordance with their
terms to elect 75% of the Board or until this Section 8 terminates as provided
in Section 16(f), the Company and the Class B Entities shall be entitled to the
respective rights and subject to the respective obligations set forth in this
Section:
(a) Tag-Along. If any Class B Entity proposes to Transfer any Shares
Beneficially Owned by it to any Person (other than any Class B Entity or any
Qualified Parties or Controlled Subsidiaries of any Class B Entities) in a
transaction or series of transactions pursuant to which such Person, together
with Affiliates and Associates of such Person (excluding from such Affiliates or
Associates any Class B Entity or any Qualified Parties or Controlled
Subsidiaries of any Class B Entities) (a "Tag-Along Transaction"), would become
the Beneficial Owner of Voting Securities of Parent that have the power to cast
at least 50% of the votes entitled to be cast in elections of directors of
Parent, the Investor shall be given the opportunity and shall have the right to
Transfer such number (but no less or more than such number) of the Shares then
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Beneficially Owned by the Investor that is the same in proportion to the total
number of Shares that are Beneficially Owned by the Investor as the proportion
of the number of Shares being or to be Transferred by the Class B Entities
concurrently to such Person in the transaction or series of transactions
constituting the Tag-Along Transaction to the total number of Shares that are
Beneficially Owned by all of the Class B Entities on terms (including the form
and amount of, and the time of receipt of, consideration therefor) and
conditions identical in all material respects to those applicable to such Class
B Entity in connection with such Transfer. Any such Class B Entity shall give
written notice to the Investor setting forth in detail the material terms and
conditions of the applicable proposed Transfer, and the Investor shall have at
least ten business days after such notice is given within which to exercise its
rights contained in this Section by written notice thereof given to such Class B
Entity (it being understood and agreed that, if no such notice is received by
such Class B Entity within such period, the Investor shall be deemed to have
elected not to have exercised its rights under this Section). Any such notice
shall constitute an irrevocable offer by the Investor to sell to such Person
such Shares on the terms and conditions received by any such Class B Entity in
connection with such Transfer.
(b) Drag-Along. If the Investor does not exercise the rights set forth
in the foregoing paragraph (a), then any Class B Entity that is Transferring
Shares to a Person (other than any Class B Entity or any Qualified Parties or
Controlled Subsidiaries of a Class B Entity or any Person that before entering
into the definitive documentation relating to such Transfer was an Associate or
Affiliate of any Class B Entity or of a Qualified Party of a Class B Entity) in
a transaction or series of transactions pursuant to which such Person, together
with Affiliates and Associates of such Person (excluding from such Affiliates or
Associates any Class B Entity or any Qualified Parties or Controlled
Subsidiaries of any Class B Entities) (a "Drag-Along Transaction"), would become
the Beneficial Owner of Voting Securities of Parent that have the power to cast
at least 50% of the votes entitled to be cast in elections of
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directors of Parent may give written notice to the Investor during the period
expiring on the close of business on the tenth business day following the
expiration of the five business day period set forth in the foregoing paragraph
(a) requiring the Investor to Transfer such number (but no less or more than
such number) of the Shares then Beneficially Owned by the Investor that is the
same in proportion to the total number of Shares that are Beneficially Owned by
the Investor as the proportion of the number of Shares being or to be
Transferred by the Class B Entities concurrently to such Person in the
transaction or series of transactions constituting the Drag-Along Transaction to
the number of Shares that are Beneficially Owned by the Class B Entities on
terms (including the form and amount of, and the time of receipt of,
consideration therefor) and conditions no less favorable in all material
respects to those applicable to such Class B Entity (and its Affiliates and
Associates) in connection with such Transfer.
(c) Parity; Closing. The terms on which the applicable Class B Entity
actually Transfers its Shares shall not be materially more favorable to the
Class B Entity (and its Affiliates, Associates and Qualified Parties), and
include no more cash, than the terms set forth in the notice given by it
pursuant to the foregoing paragraph (a). The Investor shall give the same
representations, warranties, covenants and agreements as are given by the Class
B Entity in connection with any Transfer pursuant to this Section, but only
insofar as they relate to the Investor's ownership of Shares or are
representations and warranties to the effect set forth in Section 2, and shall
take all such actions as may be necessary to permit such Transfer to lawfully
occur. The closing of the purchase and sale of the Investor's Shares by any
Person pursuant to this Section shall, to the extent legally practicable, take
place at the same time and place as the closing of the Transfer by any such
Class B Entity giving rise to the tag-along rights and drag-along rights set
forth in this Section. At such closing, (i) the Investor shall deliver to such
Person certificates representing the Shares being sold, free and clear of any
Lien (and the Investor hereby represents and warrants to the Class B Entities
and shall represent and
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warrant to such Person that such Shares shall, immediately prior to such sale,
be so free and clear), (ii) such Person shall deliver to the Investor the
consideration to be paid for such Shares in accordance with the terms of the
purchase and sale of such Shares and (iii) the Investor shall execute such other
documents and take such other action as shall be reasonably necessary to
consummate the purchase and sale of such Shares; provided, that if the Investor
is required to Transfer Shares pursuant to a Class B Entity's exercise of its
drag-along rights, the Investor shall not be required to enter into any
noncompete or other agreement that in any material respect restricts or has an
adverse effect on the business or operations of the Investor or any of its
Affiliates.
9. Parent's Right of Consultation with the Investor. The Company and
Parent hereby agree with each other that the Company and Parent shall be
entitled to the respective rights and subject to the respective obligations set
forth in this Section:
(a) Notice. If at any time the Investor desires to Transfer in a
transaction or series of transactions any Shares to any other Person pursuant to
Section 6(h), the Investor shall first notify Parent in writing (an "Investor
Proposal Notice") of the possibility of such a transaction, the number of Shares
proposed to be Transferred and the aggregate number of and a description of the
Shares that are Beneficially Owned by the Investor.
(b) Consultation. Following Parent's receipt of an Investor Proposal
Notice the Investor shall discuss with Parent the possibility of effecting such
a transaction with Parent. If Parent wishes to pursue such a transaction and is
capable of completing such a transaction, then, for a period of 30 days after
Parent's receipt of the Investor Proposal Notice (or such shorter period if
Parent responds in writing that it is not interested in pursuing such a
transaction), the Investor shall negotiate in good faith and exclusively with
Parent to determine whether it is possible to agree to such a transaction with
Parent but shall not be obligated to enter into any agreement with Parent to do
so.
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The Investor shall be free to negotiate and to initiate and hold discussions
with other potential purchasers at any time before the Investor Proposal Notice
or after the expiration of such 30-day or shorter period and may agree to enter
into such a transaction at any time after the expiration of such 30-day or
shorter period even if such transaction has a lower value to the Investor than
any transaction proposed by Parent. Parent agrees to keep confidential the fact
that the Investor is considering effecting such a transaction, the possible
terms thereof and any confidential information obtained by Parent in pursuing
negotiations contemplated by this Section.
10. The Investor's Preemptive Rights. The Company and Parent hereby
agree with each other that the Investor and Parent shall be entitled to the
respective rights and subject to the respective obligations set forth in this
Section:
(a) Notice; Exercise; Closing. If Parent proposes to issue, grant or
sell Shares, Parent shall give to the Investor a written notice setting forth in
reasonable detail the per share consideration (including, in the case of any
convertible or derivative security, the issue consideration pro rated per Share
for such security) and other terms on which such Shares are proposed to be
issued, granted or sold and the amount thereof proposed to be issued, granted or
sold. The Investor shall thereafter have the preemptive right, exercisable by
notice to Parent no later than 15 days after Parent's notice is given, to
purchase up to such number of Parent Class A Shares so that, after giving effect
to such issuance, grant or sale and the preemptive subscription by the Investor,
the Investor, together with its Affiliates and Associates, will Beneficially Own
in the aggregate the same proportion of the Outstanding Share Capital as
Beneficially Owned as of the date of Parent's notice, for the consideration in
cash and on the other terms set forth in Parent's notice. Any written notice by
the Investor exercising the right to purchase Shares pursuant to this Section
shall constitute an irrevocable commitment to purchase from Parent the Shares
specified in such notice, subject to the maximum set forth
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in the preceding sentence. The closing of the purchase of Shares by the Investor
shall, to the extent legally practicable, take place at the same time and place
as the closing of such issuance, grant or sale to the Persons giving rise to the
preemptive rights set forth in this Section and if not at the same time shall
take place as soon thereafter as is practicable; provided that such closing
shall, to the extent applicable, be conditioned upon the expiration or
termination of any waiting period under the HSR Act and the making of any
necessary filings with and obtaining of any approvals from any Governmental
Entities except those that the failure to make or obtain are not, individually
or in the aggregate, reasonably likely to have a Parent Material Adverse Effect
or a material adverse effect on the financial condition, properties, business or
results of operations of the Company and its Subsidiaries taken as a whole. At
such closing, (i) Parent shall deliver to the Investor certificates representing
the Shares being subscribed, and such Shares will be validly issued, fully paid
and nonassessable, (ii) the Investor shall deliver to Parent the consideration
to be paid for such Shares and (iii) the Investor and Parent shall execute such
other documents and take such other action as shall be reasonably necessary to
consummate the subscription of such Shares.
(b) Non-Exercise. From the expiration of the 15-day period first
referred to in the foregoing paragraph (a) and for a period of 90 days
thereafter, Parent may offer, issue, grant and sell to any Person up to the
amount of Shares set forth in Parent's notice relating to such Shares for a
price and other terms no less favorable to Parent, and including no less cash,
than those set forth in such notice (without deduction for reasonable
underwriting, sales agency and similar fees payable in connection therewith);
provided, however, that Parent may not issue, grant or sell Shares in an amount
greater than the amount set forth in such notice minus the amount purchased or
committed to be purchased by the Investor upon exercise of its preemptive rights
without granting the Investor the preemptive rights in this Section with respect
to such greater amount of Shares.
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(c) Exemptions. The provisions of this Section shall not apply to (i)
any issuance and sale of Shares by Parent in a Demand Registration (as defined
in Annex A) or in a Piggy-back Registration (as defined in Annex A) in which the
Investor is participating; (ii) the grant or exercise of employee, management or
director stock options to purchase Shares pursuant to, or the issuance of Shares
otherwise under or pursuant to, the Parent Share Issuance Commitments; (iii) any
grant or exercise of employee, management or director stock options not included
in the Parent Share Issuance Commitments the grant of which, when aggregated
with options or Shares included in or issued under the Parent Share Issuance
Commitments, was or is consistent with CSC's and Parent's past practices; (iv)
any sale, grant or issuance of Shares that, together with any previous sales,
grants or issuances made in reliance on this clause (iv), represents less than
1% of the Outstanding Share Capital as of the date of such sale, grant or
issuance; and (v) any other sale, grant or issuance of Shares that has been
approved in writing by the Investor.
(d) Non-Cash Valuation. In the event that any offer, issue, grant or
sale includes or is proposed to include any non-cash consideration, Parent and
the Investor shall in good faith seek to agree upon the value of such non-cash
consideration. If Parent and the Investor fail to agree on such value during the
15-day period contemplated by paragraph (a) of this Section, then Parent shall
refer the items in dispute to a nationally recognized investment banking firm
that is selected by the Board and that shall make a final and binding
determination within 10 days. The value of any securities shall be the fair
market value of such securities and the value of any property other than
securities shall be the fair market value of such property. If a determination
under this paragraph (d) is required, any deadline for acceptance provided for
in this Section shall be postponed until the fifth business day after the date
of such determination. Whichever of the Investor or Parent whose last estimate
differed the most from that finally decided by the investment banking firm shall
be responsible for and pay all of the expenses of such investment banking firm.
All determinations made pursuant to this
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paragraph (d) shall be final and binding on the Investor and Parent.
(e) HSR Condition. If in the reasonable judgment of the Investor, the
Investor's acquisition of Shares upon exercise of its rights under this Section
10 would require a filing under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the "HSR Act"), Parent and the Investor each will take such
actions as may be required promptly to comply with the requirements of the HSR
Act relating to the filing and furnishing of information (an "HSR Report") to
the Federal Trade Commission ("FTC") and the Antitrust Division of the
Department of Justice ("DOJ"), such actions to include (i) preparing and
cooperating with each other in preparing the HSR Report to be filed by or on
behalf of each of them so as to avoid errors or inconsistencies between their
HSR Reports in the description of the reported transaction and to permit the
filing of their HSR Reports in a timely fashion, (ii) complying with any request
for additional documents or information made by the FTC, the DOJ or any other
Governmental Entity or by any court and assisting the other in so complying and
(iii) causing all Persons which are part of the same "person" (as defined for
purposes of the HSR Act) as such party to cooperate and assist in such
compliance. Parent and the Investor each will pay any costs that it incurs in
complying with the obligations set forth in this paragraph. It will be a
condition precedent to the acquisition of Shares by the Investor that either (i)
no filing under the HSR Act by the Investor is required in connection with such
acquisition or (ii) any applicable waiting period under the HSR Act has expired
or been terminated. If the applicable waiting period under the HSR Act has not
expired or been terminated within 180 days after filing of the HSR Report or if
the Investor and Parent agree to withdraw the HSR Report, then Parent will use
its reasonable best efforts to afford to the Investor the benefits intended to
be provided by this Section 10 by granting to the Investor the right to acquire,
on the same terms as the securities originally to be acquired, other securities
of Parent having substantially the same rights, privileges and preferences as
the securities originally to be acquired, except that such other
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securities will not possess voting rights and will be convertible into the
Shares that the Investor was to acquire pursuant to this Section.
11. Board Representation.
(a) Investor Directors. For so long as, and only for so long as, the
Investor Beneficially Owns Parent Class A Shares that in the aggregate comprise
at least 20% of the Outstanding Share Capital, the Investor shall be entitled to
nominate two and no more than two directors (the "Investor Directors") to the
Board, each of whom shall be a person that is reasonably acceptable to Parent
(it being agreed for this purpose that, subject to applicable legal
requirements, any executive officer or member of the board of directors of the
Company shall be acceptable to Parent); provided, that in the event that the
Investor shall at any time cease to Beneficially Own Parent Class A Shares that
in the aggregate comprise at least 20% of the Outstanding Share Capital but
shall continue to Beneficially Own Parent Class A Shares that in the aggregate
comprise at least 10% of the Outstanding Share Capital, the Investor shall
thenceforth be entitled to nominate one and no more than one Investor Director
under this Section 11 and Parent or any of the Class B Entities may request that
one of the Investor Directors then on the Board resign as a director of Parent
and, upon such request, one of the Investor Directors shall, and the Investor
shall use best efforts to cause one of the Investor Directors to, resign
immediately and relinquish all rights and privileges as a member of the Board;
provided, further, that each of the Investor Directors shall in all cases be a
director elected to the Board by the Parent Class B Shares. In the event that
the Investor shall at any time cease to Beneficially Own Parent Class A Shares
that in the aggregate comprise at least 10% of the Outstanding Share Capital,
the Investor shall thenceforth not be entitled to nominate any Investor
Directors under this Section 11 and Parent or any of the Class B Entities may
request that any Investor Directors then on the Board resign as directors of
Parent and, upon such request, the Investor Directors shall, and the Investor
shall use its reasonable best efforts to, cause such Investor Directors to,
resign immediately and
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relinquish all rights and privileges as a member of the Board.
Prior to the election of directors to the Board, the Investor may give
reasonable advance written notice to Parent prior to the mailing of the proxy
statement relating to such matters requesting that Parent include, and Parent
and the Class B Entities (in their capacity as stockholders of Parent) agree
that Parent shall include, the Investor Directors as nominees for the slate of
directors to be elected to the Board.
Notwithstanding the foregoing, in the event that the holders of the
Class B Shares cease at any time to be entitled to elect 75% of the Board in
accordance with the terms of the Parent Class B Shares, the Investor shall
thenceforth no longer be entitled to any rights under this Section and the
Investor agrees that, following such event, Parent may request that all or any
of the Investor Directors then on the Board resign as Investor Directors, and
upon such request by Parent, the Investor Directors shall, and the Investor
shall use reasonable best efforts to cause such Investor Directors to, resign as
Investor Directors and relinquish all rights and privileges as a member of the
Board at the next meeting of stockholders of Parent called for the purpose of
electing directors to the Board; provided, that such Investor Directors may in
any case be nominees as directors to the Board at any meetings called for
election of directors in accordance with this Agreement and with the By-laws of
Parent. Notwithstanding anything to the contrary in this Agreement, no more than
25% of the directors on the Board (rounded up to the nearest whole director)
shall be nominees of the Investor or any Affiliate or Associate of the Investor.
(b) Special Committee. For so long as, and only for so long as, the
Investor is entitled to nominate two Investor Directors pursuant to Section
11(a) (without giving effect to any reduction in the number of Investor
Directors resulting from the last sentence of Section 11(a)), (i) two (or one,
if the number of Investor Directors is reduced as a result of Section 11(a)) of
the Special Directors shall be
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the Investor Directors and (ii) Section 9 of Article II of Parent's By-laws may
not be amended without the prior written consent of the Investor. If only one of
the Special Directors is an Investor Director as a result of any reduction
resulting from the last sentence of Section 11(a), then any matter requiring the
approval of the Special Directors shall not be approved without the approval of
the Investor Director. The Investor, Parent and the Class B Entities agree that
the Investor Directors shall not be entitled to vote on the transactions
contemplated by the Partnership Contribution or on the approval or adoption of
the Partnership Contribution Agreement notwithstanding the fact that such
transaction and such agreement may be referred to the Special Committee.
(c) Efforts to Nominate and Elect Directors. Parent shall nominate and
Parent and the Class B Entities shall use their respective best efforts to take
and cause to be taken all necessary action (corporate and other), which efforts
shall include the voting of or granting consents with respect to all Voting
Securities of Parent Beneficially Owned by them, to elect to the Board the
Investor Directors required to be nominated for election as directors in
accordance with the terms of this Section.
12. Investor Voting. For so long as the Class B Shares are entitled in
accordance with their terms to elect 75% of the Board, with respect to the
election of directors to or removal of directors from the Board and any increase
of authorized Shares, the Investor shall vote or grant consent with respect to,
and shall cause to be voted or to be granted any consents with respect to, all
Voting Securities that are Beneficially Owned by the Investor on all matters
submitted to the holders of Voting Securities in direct proportion to the votes
or consents of the Minority Shares on any such matter. The Investor and the
Class B Entities shall cause all Shares owned by the Investor and the Class B
Entities, as the case may be, and shall use reasonable best efforts to cause all
of their respective Affiliates and Associates to be represented, in person or by
proxy, at all meetings of holders of Shares of which the Investor or the Class B
Entities, as the case may be, have
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actual notice, so that all of such Shares may be counted for the purpose of
determining the presence of a quorum at such meetings.
13. Acquisition Transactions. For so long as, and only for so long as,
the Investor is entitled to nominate two Investor Directors pursuant to Section
11(a), Parent shall not, without the prior written consent of the Company,
consummate an Acquisition Transaction if, after giving effect to such
transaction, the Cash Flow Ratio will exceed the Cash Flow Ratio Threshold.
Before consummation of an Acquisition Transaction that is reasonably likely to
result in the Cash Flow Ratio Threshold being exceeded, Parent shall provide
written notice and a reasonable description of such transaction, including pro
forma calculations of the Cash Flow Ratio giving effect to such transaction as
of the beginning of the most recent three-month period for which Annualized
Operating Cash Flow can be calculated, together with reasonable documentary
supporting information for such calculation. To the extent reasonably
practicable under the circumstances of such transaction, such notice shall be
given 30 days prior to such consummation, but in no event shall such notice be
given less than 10 days prior to such consummation.
14. Additional Agreements.
(a) Exchange Act Reporting. For so long as, and only for so long as,
any of the Shares Beneficially Owned by the Investor are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, unless Parent is
then subject to and in compliance with Section 13 or 15(d) of the Exchange Act
as contemplated by Rule 144(c)(1) under the Securities Act, Parent shall make
publicly available any information concerning Parent that is contemplated by
Rule 144(c)(2) under the Securities Act.
(b) Maintenance of Ultimate Parent Entity as a Party. In the
event that the Company shall at any time become or be a Subsidiary of any Person
that is not a natural person, the Company covenants and agrees that the Ultimate
Parent Entity of such Person shall forthwith
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execute a counterpart of this Agreement and shall assume all obligations of the
Company hereunder and all references herein to the Company shall be deemed a
reference to such Ultimate Parent Entity. This paragraph shall similarly apply
to any subsequent Ultimate Parent Entities.
(c) Registration Rights. The Investor shall have the registration
rights set forth in Annex A hereto.
(d) Volume Discounts. The Company shall use its reasonable best efforts
to make available to Parent and its Subsidiaries the benefits of its agreements
with vendors on terms no less favorable than those generally available to the
Company or Affiliates of the Company.
15. Legends. (a) Each of the Investor and the Class B Entities agrees
that all certificates representing the Shares that are from time to time subject
to this Agreement shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO A STOCKHOLDERS AGREEMENT DATED MARCH 4, 1998(A COPY OF WHICH
IS ON FILE WITH THE SECRETARY OF THE CORPORATION) WHICH PROVIDES,
AMONG OTHER THINGS, FOR CERTAIN RESTRICTIONS ON THE TRANSFER AND
VOTING THEREOF. THE SECURITIES REPRESENTED BY THIS CERTIFICATE
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE
WITH SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE
WITH SAID AGREEMENT SHALL BE VOID."
Upon termination with respect to the Investor or the Class B Entities of this
Agreement in accordance with its terms or upon any Shares ceasing to be subject
to this Agreement and upon the written request by the Investor or any of the
Class B Entities, as the case may be, Parent shall issue new certificates with
the foregoing legend removed.
(b) The Investor agrees that all certificates representing the Shares
that were issued in the Contribution and that are Transferred pursuant to this
Agreement (unless
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a registration statement with respect to such Shares is then effective) shall
bear the following legend until such time as the Investor or any transferee
thereof delivers an opinion of counsel reasonably acceptable to Parent to the
effect that such legend is no longer required under the Securities Act:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE SOLD
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND MAY
BE OFFERED OR SOLD ONLY IF REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR IF AN EXEMPTION FROM REGISTRATION IS
AVAILABLE."
16. Miscellaneous.
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH AND SUBJECT
TO THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICTS OF LAWS
PRINCIPLES.
(b) Venue; WAIVER OF JURY TRIAL. The parties hereby irrevocably submit
to the jurisdiction of the courts of the State of Delaware and the Federal court
of the United States of America located in the State of Delaware solely in
respect of the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement, and in respect of
the transactions contemplated hereby, and hereby waive, and agree not to assert,
as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all claims with respect to such action or
proceeding shall be heard and determined in such a Delaware State or Federal
court. The parties hereby consent to and grant any such court jurisdiction over
the person of such parties and over the
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subject matter of such dispute and agree that mailing of process or other papers
in connection with any such action or proceeding in the manner provided in
paragraph (c) of this Section or in such other manner as may be permitted by law
shall be valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS PARAGRAPH (b).
(c) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given (i) on
the first business day following the date received, if delivered personally or
by telecopy (with telephonic confirmation of receipt by the addressee), (ii) on
the business day following timely deposit with an overnight courier service, if
sent by overnight courier specifying next day delivery and (iii) on the first
business day that is at least five days following deposit in the mails, if sent
by first class mail, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to the Company or the Investor, to:
5619 DTC Parkway
Englewood, Colorado 80111-3000
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Facsimile: (303) 488-3219/(303) 488-3245
Attention: President/Legal Department
with a copy to:
Sherman & Howard L.L.C.
Suite 3000
633 Seventeenth Street
Denver, Colorado 80202
Facsimile: (303) 298-0940
Attention: Charles Y. Tanabe, Esq.
If to Parent, to:
One Media Crossways
Woodbury, New York 11797
Facsimile: (516) 364-8501
Attention: General Counsel
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Facsimile: (212) 558-3588
Attention: Joseph B. Frumkin, Esq.
If to any of the Class B Entities, to:
Charles F. Dolan
One Media Crossways
Woodbury, New York 11797
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Facsimile: (516) 364-6279
and
William A. Frewin, Jr.
One Media Crossways
Woodbury, New York 11797
Facsimile: (516) 364-4592
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Facsimile: (212) 909-6836
Attention: Bruce D. Haims, Esq.
(d) Severability. The provisions of this Agree ment shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (i) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (ii) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
(e) Counterparts. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an
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original and all of which shall together constitute the same agreement.
(f) Termination; Survival. Immediately upon the Investor, together with
all of the Affiliates of the Investor, ceasing to Beneficially Own in the
aggregate at least 20% of the Outstanding Share Capital, Sections 7 and 9 shall
terminate automatically without any action by any party and such terminated
provision shall not survive such termination. Immediately upon the Investor,
together with all of the Affiliates of the Investor, ceasing to Beneficially Own
in the aggregate at least 10% of the Outstanding Share Capital, this Agreement
(other than Sections 1, 2, 3, 4, 5, 14(c), 15 and 16) shall terminate
automatically without any action by any party and such terminated provisions of
this Agreement shall not survive such termination. On the day that is two years
after the date of such termination, Section 5 shall terminate automatically
without any action by any party and shall not survive such termination.
Immediately upon a Transfer to a Permitted Transferee pursuant to Section 6(h),
Sections 7, 9, 11(b) and 13 shall terminate automatically without any action by
any party and such terminated provisions of this Agreement shall not survive
such termination; provided, that if such Permitted Transferee is a Competitor,
all of Section 11 shall terminate automatically without any action by any party
and such terminated provision shall not survive such termination; provided,
further, that on the day that is five years following a Transfer to any such
Permitted Transferee, Section 10 shall terminate automatically without any
action by any party and such terminated provision shall not survive such
termination. This Section 16 and Sections 1, 2, 3, 4, 14(c) and 15 shall survive
any termination of all or any part of this Agreement indefinitely.
(g) Headings; Recitals. All Section headings and the recitals herein
are for convenience of reference only and are not part of this Agreement, and no
construction or reference shall be derived therefrom.
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(h) Specific Performance. Each party hereto acknowledges that it will
be impossible to measure in money the damage to the other party if a party
hereto fails to comply with any of the obligations imposed by this Agreement,
that every such obligation is material and that, in the event of any such
failure, the other party will not have an adequate remedy at law or damages.
Accordingly, each party hereto agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or damages, is the appropriate remedy for
any such failure and will not oppose the granting of such relief on the basis
that the other party has an adequate remedy at law. Each party hereto agrees
that it shall not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining such
equitable relief.
(i) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns and shall not be assignable except to the extent expressly
permitted hereby and any purported assignment in violation of this Agreement
shall be void. Any Class B Entity may assign this Agreement in connection with a
Transfer of any Shares to a Class B Entity or any Qualified Parties or
Controlled Subsidiaries of any Class B Entities; provided, that such transferee
shall become a party to a counterpart of this Agreement and become bound as a
Class B Entity hereunder. In the case of a merger or other business combination
or reorganization transaction involving Parent where securities other than those
of Parent are issued to the holders of Shares, this Agreement shall be assigned
to and shall inure to the benefit of and be binding upon the Person issuing
securities in such transaction and any reference herein to Parent shall be
deemed to be a reference to such Person. The rights and obligations under this
Agreement (excluding Sections 7, 9, 11(b) and 13) shall be assigned by the
Investor and the Company to a Permitted Transferee in connection with the
Transfer to such Permitted Transferee pursuant to Section 6(h); provided, that
if such Permitted Transferee is a Competitor, Section 11 shall also
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be excluded from such assignment, which assignment shall not terminate any
portion of this Agreement except in accordance with Section 16(f). The Investor
may assign its rights and obligations (w) under this Agreement to a Permitted
Transferee pursuant to Section 6(a)(i), (x) under this Agreement to a Permitted
Transferee pursuant to Section 6(a)(ii), (y) under Sections 14(c), 15 and 16 to
a transferee pursuant to Section 6(b) and (z) under Sections 6, 11, 14(c), 15
and 16 to a transferee pursuant to Section 6(g), which assignment shall not
terminate any obligations of the Investor hereunder; provided, that in the event
of an assignment described in (x), (y) or (z) above, the Investor agrees with
Parent that the transferee(s) and the Investor shall, with respect to Parent,
act as one Investor under such assigned Sections.
(j) Entire Agreement; Amendment; Waiver. This Agreement (including any
annexes and schedules hereto) and the Merger Agreement (including any exhibits
and schedules thereto) supersede all prior agreements, written or oral, among
the parties hereto with respect to the subject matter hereof and contains the
entire agreement among the parties with respect to the subject matter hereof.
This Agreement may not be amended, supplemented or modified, and no provisions
hereof may be modified or waived, except by an instrument in writing signed by
the party or parties affected or to be affected thereby. No waiver of any
provisions hereof by any party shall be deemed a waiver of any other provisions
hereof by any such party, nor shall any such waiver be deemed a continuing
waiver of any provision hereof by such party.
(k) No Request for Amendment or Waiver. The Company shall not, and
shall cause its Affiliates not to and use reasonable best efforts to cause its
Associates not to, request publicly that Parent or any of the Class B Entities
or any of their respective agents or representatives, directly or indirectly,
amend or waive any provision of this Agreement or make any such request
privately if it could reasonably be expected to require Parent to make a public
announcement regarding such request.
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(l) No Relief of Liabilities. No Transfer by the Investor or any Class
B Entity of Beneficial Ownership of any Shares shall relieve the Investor or
such Class B Entity of any liabilities or obligations to Parent or to a Class B
Entity (in the case of a Transfer by the Investor) or to the Investor (in the
case of a Transfer by a Class B Entity) that arose or accrued prior to the date
of such Transfer.
(m) Securities Subject to Agreement; Ineffective Transfers. All Shares
that are Beneficially Owned by the Investor (including any Shares disclosed
pursuant to Section 2(a) for as long as such Shares are Beneficially Owned by
the Investor or its Affiliates), and the Class B Entities and, to the extent
provided herein, the Affiliates and Associates of the Investor and the Class B
Entities, shall be subject to this Agreement. No Transfer or acquisition of any
Shares in violation of any provision of this Agreement shall be effective to
pass any title to, or create any interest in favor of, any Person, but the
Investor or Class B Entities, as the case may be, in attempting to effect or in
permitting or suffering such Transfer or acquisition, shall be deemed to have
committed a material breach hereof.
(n) Further Assurances. The parties hereto shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of the terms of this Agreement and the transactions contemplated
hereby.
(o) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS OR
IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF
ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
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IN WITNESS WHEREOF, Parent, each Class B Entity and the
Company have executed and delivered this Agreement, or a counterpart hereof, as
of the date first written above or, where applicable, across from a party's
signature on such counterpart.
PARENT:
CABLEVISION SYSTEMS CORPORATION
By: /s/William J. Bell
-----------------------------------
Name: William J. Bell
Title: Vice Chairman
THE COMPANY:
TELE-COMMUNICATIONS, INC.
By: /s/Stephen M. Brett
-----------------------------------
Name: Stephen M. Brett
Title: Executive Vice President
The Company hereby irrevocably and unconditionally guarantees the
performance of all obligations under this Agreement of each of the Investors on
the signature page attached hereto and hereby covenants and agrees with Parent
and each of the Class B Entities that each such Investor, for so long as such
Investor Beneficially Owns Shares, shall continue to be a Controlled Subsidiary
or wholly owned Subsidiary of the Company.
THE COMPANY:
TELE-COMMUNICATIONS, INC.
By: /s/Stephen M. Brett
-----------------------------------
Name: Stephen M. Brett
Title: Executive Vice President
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THE INVESTORS:
COUNTRY CABLE III, INC.
CCC SUB, INC.
TCI CSC II, Inc.
TCI CSC III, Inc.
TCI CSC IV, Inc.
TCI CSC V, Inc.
TCI CSC VI, Inc.
TCI CSC VII, Inc.
TCI CSC VIII, Inc.
TCI CSC IX, Inc.
TCI CSC X, Inc.
TCI CSC XI, Inc.
By: /s/William R. Fitzgerald
-------------------------------------
William R. Fitzgerald, Vice President
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CHARLES F. DOLAN
By: /s/Charles F. Dolan
-------------------------------------
CHARLES F. DOLAN 1997 GRANTOR
RETAINED ANNUITY TRUST
By: /s/Helen Dolan
-------------------------------------
Name: Helen Dolan
Title: Trustee
DOLAN DESCENDANTS TRUST
/s/Kathleen M. Dolan
By: /s/Paul J. Dolan
-------------------------------------
Name: Kathleen M. Dolan,
Paul J. Dolan
Title: Trustees
DOLAN PROGENY TRUST
/s/Deborah Dolan Sweeney
/s/Patrick F. Dolan
By: /s/Paul J. Dolan
-------------------------------------
Name: Patrick F. Dolan,
Paul J. Dolan,
Deborah Dolan Sweeney
Title: Trustees
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DOLAN GRANDCHILDREN TRUST
/s/Paul J. Dolan
/s/Thomas C. Dolan
By: /s/Marianne Dolan Weber
-------------------------------------
Name: Paul J. Dolan,
Thomas C. Dolan,
Marianne Dolan Weber
Title: Trustees
DOLAN SPOUSE TRUST
/s/Paul J. Dolan
/s/Thomas C. Dolan
By: /s/Marianne Dolan Weber
-------------------------------------
Name: Paul J. Dolan,
Thomas C. Dolan,
Marianne Dolan Weber
Title: Trustees
DC KATHLEEN TRUST
/s/Kathleen M. Dolan
By: /s/Paul J. Dolan
-------------------------------------
Name: Kathleen M. Dolan,
Paul J. Dolan
Title: Trustees
DC DEBORAH TRUST
/s/Mary S. Dolan
By: /s/Deborah Dolan Sweeney
-------------------------------------
Name: Mary S. Dolan,
Deborah Dolan Sweeney
Title: Trustees
-42-
<PAGE>
DC MARIANNE TRUST
/s/Marianne Dolan Weber
By: /s/Matthew Dolan
-------------------------------------
Name: Matthew Dolan,
Marianne Dolan Weber
Title: Trustees
DC PATRICK TRUST
/s/Patrick F. Dolan
By: /s/Mary S. Dolan
-------------------------------------
Name: Patrick F. Dolan,
Mary S. Dolan
Title: Trustees
DC THOMAS TRUST
/s/Thomas C. Dolan
By: /s/Matthew Dolan
-------------------------------------
Name: Thomas C. Dolan,
Matthew Dolan
Title: Trustees
DC JAMES TRUST
By: /s/Paul J. Dolan
-------------------------------------
Name: Paul J. Dolan
Title: Trustee
CFD TRUST NO. 1
By: /s/John MacPherson
-------------------------------------
Name: John MacPherson
Title: Trustee
-43-
<PAGE>
CFD TRUST NO. 2
By: /s/John MacPherson
-------------------------------------
Name: John MacPherson
Title: Trustee
CFD TRUST NO. 3
By: /s/John MacPherson
-------------------------------------
Name: John MacPherson
Title: Trustee
CFD TRUST NO. 4
By: /s/John MacPherson
-------------------------------------
Name: John MacPherson
Title: Trustee
CFD TRUST NO. 5
By: /s/John MacPherson
-------------------------------------
Name: John MacPherson
Title: Trustee
CFD TRUST NO. 6
By: /s/John MacPherson
-------------------------------------
Name: John MacPherson
Title: Trustee
-44-
<PAGE>
CFD TRUST NO. 10
By: /s/John MacPherson
-------------------------------------
Name: John MacPherson
Title: Trustee
-45-
<PAGE>
Schedule 1
(Parent Share Issuance Commitments)
9. CSC Stock Plans.
10. Any Parent Class A Shares issuable upon conversion of any Parent Class
B Shares.
11. Any Shares issuable upon conversion of the Series C Cumulative Preferred
Stock, par value $.01 per share, of Parent outstanding as of the date of
the Merger Agreement.
-1-
<PAGE>
Schedule 3
(Parent Class B Shares of the Class B Entities)*
Entity Class B Shares
------ --------------
Charles F. Dolan 4,859,281
Charles F. Dolan 1997
Grantor Retained Annuity Trust 1,240,000
Dolan Descendants Trust 413,625
Dolan Progeny Trust 513,625
Dolan Grandchildren Trust 307,625
Dolan Spouse Trust 52,945
DC Kathleen Trust 303,116
DC Deborah Trust 303,116
DC Marianne Trust 294,285
DC Patrick Trust 294,285
DC Thomas Trust 303,116
DC James Trust 303,116
CFD Trust No. 1 302,880
CFD Trust No. 2 302,880
CFD Trust No. 3 294,049
CFD Trust No. 4 294,049
CFD Trust No. 5 302,880
CFD Trust No. 6 302,880
CFD Trust No. 10 93,456
- - --------
* To be updated as of Contribution Closing.
-1-
<PAGE>
ANNEX A
REGISTRATION RIGHTS
-------------------
The Parent Class A Shares that are Beneficially Owned by the Investor from
time to time are hereinafter referred to as the "Registrable Securities" and
shall have the benefit of the following registration rights.
Demand
Registration: After the date that is six months
following the Contribution Closing, the
Investor may request, by written notice
to Parent, that Parent file a
registration statement registering for
offering and sale Registrable Securities
in an amount equal to or in excess of
2,000,000 Shares or, if less, the Shares
then Beneficially Owned by the Investor
and any transferees with rights
hereunder in an underwritten public
offering (a "Demand Registration").
Parent will use its reasonable best
efforts to file a registration statement
on an appropriate form with the SEC
covering the Registrable Securities for
which registration was so requested
within 30 days of Parent's receipt of
such request, subject to Parent's
blackout rights described below, and
shall use its reasonable best efforts to
cause such registration statement to be
declared effective as soon thereafter as
practicable. In addition, Parent shall
amend or supplement such registration
statement so that the Investor may use
such registration statement and the
related prospectus in connection with an
underwritten offering of such
Registrable Securities for 90 days from
the effective date of such registration
A-1
<PAGE>
statement, subject to Parent's blackout
rights described below. Parent agrees
to keep the Demand Registration
effective for such 90-day period and,
after the expiration of such 90-day
period, may deregister the Registrable
Securities registered thereon. Parent
shall not be obligated to effect more
than one Demand Registration for the
Investor in each of the years following
the date that is six months following
the Contribution Closing.
Piggy-back
Registration: The Investor shall be entitled to
"piggy-back" registration rights on any
registrations of Shares registering for
offering and sale at least $100 million
of Shares (based upon the market value
thereof on the date of filing), other
than a registration on Form S-8, Form S-
4 or any successors to such forms (a
"Piggy-back Registration"), subject to
the cutback provisions described below.
Registration
Expenses: The Investor will pay a proportional
amount (based upon the number of shares
registered by the Investor) of any and
all fees and expenses in a Piggy-back
Registration; provided, that the
Investor will not be responsible for
counsel expenses of other selling
stockholders. In a Demand Registration,
Parent will pay any and all fees and
expenses; provided that Parent will not
be responsible for the counsel expenses
of the Investor or any underwriting fees
and commissions for the Shares sold by
the Investor.
A-2
<PAGE>
Underwriters: In case of any Demand Registration or
Piggy-back Registration, Parent shall
select the underwriter or underwriters
that shall manage or lead such
registration. The Investor shall not be
entitled to participate in any
underwritten offering unless and until
the Investor has entered into an
underwriting or other agreement with
such underwriter or underwriters in such
form as Parent and such underwriter or
underwriters shall determine.
In addition, in connection with any
underwritten offering proposed by the
Investor hereunder, Parent shall enter into
an underwriting or other agreement with the
underwriters thereof containing customary
representations, warranties, covenants,
indemnities and other terms.
Transfer of
Registration
Rights: The Investor may transfer or assign its
registration rights in connection with
any Transfer of Registrable Securities
to a Permitted Transferee or a
transferee under Section 6(b) or 6(g);
provided, that any such transferee shall
agree to be bound by the terms hereof
relating to Shares or securities
convertible or exchangeable for Shares
and, with respect to Parent, all of such
transferees must act as one Investor
hereunder.
Lock-Up Provision: The Investor will not engage in
transactions involving Parent's equity
securities, including by commencing any
public offering of Parent's equity
securities or by causing a Demand
Registration, for a period not to exceed
A-3
<PAGE>
180 days after the effective date of any
Parent registration statement that is
equal to the shortest period that such
restriction is made applicable to any
director, officer or Affiliate of
Parent.
Blackout Rights: Upon written notice to the Investor,
Parent may suspend the Investor's right
to sell Registrable Securities under a
registration statement or temporarily
refuse to proceed with a Demand
Registration under the following
circumstances: (a) Parent reasonably
believes that the use of such
registration statement would require
disclosure of a material corporate
development not otherwise required to be
disclosed that Parent has a valid business
purpose for not disclosing, (b) Parent is in
the process of making, or preparing to make,
a registered offering of securities and
Parent reasonably deems it advisable to
temporarily discontinue disposition of
Registrable Securities or (c) Parent
reasonably believes that disposition of
Registrable Securities at such time would
have a material adverse effect on Parent.
Parent shall notify the Investor immediately
upon the conditions in clause (a) or (c)
above ceasing to exist, at which time such
suspension shall terminate. Notwithstanding
the foregoing, (i) the maximum period in
which Parent can suspend the Investor's
rights under clauses (a), (b) and (c) above
is 60 days on any single occasion and 145
consecutive days in any one-year period,
(ii) Parent may not suspend such rights more
than three times in any one-year period
commencing after the date
A-4
<PAGE>
that the Demand Registration becomes
effective and (iii) the Investor shall in
any event, taking into account the blackout
rights and lock-up provisions set forth
herein, be entitled to 180 days in any
one-year period (other than the period
prior to the date that is six months
following the Stock Closing) that are not
subject to any blackout or lockup. The
Investor's rights hereunder may not be
suspended unless corresponding rights of
other stockholders are similarly suspended.
Cutback Rights: In the event that the Investor, Parent
and/or any stockholder or Affiliate of
Parent are participating in an
underwritten equity offering and the
managing or lead underwriter or
underwriters thereof shall determine in
its or their reasonable good faith judgment
that it cannot sell, or that it would not be
advisable to sell, all the Shares desired to
be sold, then the number of Shares that each
such Person may have included shall be
reduced according to the following terms
until the managing or lead underwriter or
underwriters shall believe that the
remaining Shares can be sold and it would
not be inadvisable to sell such number of
Shares:
(a) in the event that the
offering in question includes a
primary offering of Shares by
Parent, then the number of Shares
that Parent may have included shall
not be reduced and the number of
Shares which the Investor and any
other Persons may have included
shall be reduced pro rata in
A-5
<PAGE>
proportion to the total number of
Shares sought to be included by each
such Person, and
(b) in the event that the
offering in question does not
include a primary offering of Shares
by Parent, then the number of shares
that the Investor and any other
Persons may have included shall be
reduced pro rata in proportion to
the total number of Shares sought to
be included by each such Person.
Indemnification: Parent will indemnify the Investor and
the Investor's officers, directors and
controlling persons against any losses,
claims, damages, expenses or liabilities
incurred by the Investor arising out of,
or based upon, any untrue statement or
alleged untrue statement of a material
fact contained in any registration
statement or prospectus or amendment or
supplement thereto, including any
document incorporated by reference therein,
or the omission or alleged omission
therefrom of a material fact necessary in
order to make the statements therein, in
light of the circumstances under which they
were made, not misleading; provided, that
Parent shall not be liable to the extent
that any loss, claim, damage, expense or
liability arises out of information supplied
in writing by the Investor or any of its
Affiliates or Associates for use in any
registration statement or prospectus or
amendment or supplement thereto, including
any document incorporated by reference
therein. The Investor shall indemnify Parent
and
A-6
<PAGE>
Parent's officers, directors and
controlling persons against any losses,
claims, damages, expenses or liabilities
incurred by Parent arising out of, or based
upon, any untrue statement or alleged
untrue statement of a material fact
relating to the Investor contained in any
registration statement or prospectus or
amendment or supplement thereto, including
any document incorporated by reference
therein, which information was supplied in
writing by the Investor or any of its
Affiliates or Associates for use in any
registration statement or prospectus or
amendment or supplement thereto, or the
omission or alleged omission therefrom of a
material fact relating to the Investor
necessary in order to make the statements
therein, in light of the circumstances
under which they were made, not misleading.
Promptly after receipt by an indemnified
party under the preceding paragraph of
notice of the commencement of any action,
such indemnified party shall, if a claim in
respect thereof is to be made against the
indemnifying party under such paragraph,
notify the indemnifying party in writing of
the commencement thereof; but the omission
so to notify the indemnifying party shall
not relieve it from any liability which it
may have to any indemnified party otherwise
than under such subsection. In case any
such action shall be brought against any
indemnified party and it shall notify the
indemnifying party of the commencement
thereof, the indemnifying party shall be
entitled to participate therein and, to the
extent that it shall wish, jointly with any
other
A-7
<PAGE>
indemnifying party similarly notified, to
assume the defense thereof, with counsel
satisfactory to such indemnified party (who
shall not, except with the consent of the
indemnified party, be counsel to the
indemnifying party), and, after notice from
the indemnifying party to such indemnified
party of its election so to assume the
defense thereof, the indemnifying party
shall not be liable to such indemnified
party under such subsection for any legal
expenses of other counsel or any other
expenses, in each case subsequently
incurred by such indemnified party, in
connection with the defense thereof other
than reasonable costs of investigation. No
indemnifying party shall, without the
written consent of the indemnified party,
effect the settlement or compromise of, or
consent to the entry of any judgment with
respect to, any pending or threatened
action or claim in respect of which
indemnification or contribution may be
sought hereunder (whether or not the
indemnified party is an actual or potential
party to such action or claim) unless such
settlement, compromise or judgment (i)
includes an unconditional release of the
indemnified party from all liability
arising out of such action or claim and
(ii) does not include a statement as to or
an admission of fault, culpability or a
failure to act by or on behalf of any
indemnified party.
Termination of
Registration
Rights: The Investor's registration rights
hereunder will automatically expire with
A-8
<PAGE>
no action by either Parent or the
Investor if and at the time that the
Investor is able to sell all of its
Registrable Securities in any 90-day
period pursuant to Rule 144 or any
successor exemption under the Securities
Act.
Further Actions: In connection with sales of Registrable
Securities by the Investor, Parent shall
take such further actions as are
customarily required of issuers
providing registration rights, including
using its reasonable best efforts to (i)
list the shares on the principal
securities exchanges or markets on which
or in which the outstanding securities
of the same class are listed or traded,
(ii) obtain any required clearance with
state securities regulators, (iii) file
Exchange Act reports on a timely basis,
(iv) make available for inspection
corporate documents at reasonable times,
(v) participate in a reasonable number
of management due diligence sessions at
reasonable times (but Parent's
management shall not be required to
travel outside of the metropolitan area
in which its principal executive offices
are located) and (vi) furnish copies of
required prospectuses, in each case, at
the expense of the Investor.
Savings Clause: The registration rights granted here
under are subject in all respects to the
rights granted to Cablevision Systems
Company and CSC Holdings Company
pursuant to the Registration Rights
Agreements, each dated January 27, 1986,
between CSC and each of such parties as
in effect on the date of the Merger
A-9
<PAGE>
Agreement, true and complete copies of which
have been provided to the Company.
A-10
================================================================================
CSC HOLDINGS, INC.,
ISSUER,
TO
THE BANK OF NEW YORK
TRUSTEE,
------------------------------------
FORM OF SUPPLEMENTAL INDENTURE NO. 2
DATED AS OF MARCH 4, 1998
------------------------------------
8-1/2% Convertible Subordinated Debentures due 2007
================================================================================
<PAGE>
SECOND SUPPLEMENTAL INDENTURE (the "Second Supplemental Indenture"),
dated as of March 4, 1998 (the "Effective Date"), between CSC HOLDINGS INC.
(formerly named Cablevision Systems Corporation), a Delaware corporation (the
"Company"), and THE BANK OF NEW YORK, a New York banking corporation, as trustee
(the "Trustee").
WHEREAS, the Company and the Trustee are parties to an Indenture, dated
November 1, 1995 (the "Indenture"), as supplemented by the First Supplemental
Indenture, dated November 1, 1995 (the "First Supplemental Indenture"), between
the parties.
WHEREAS, the Company is a party to that certain Amended and Restated
Contribution and Merger Agreement, dated as of June 6, 1997, among the Company,
Cablevision Systems Corporation (formerly named CSC Parent Corporation), a
Delaware corporation ("Cablevision"), CSC Merger Corporation, a Delaware
corporation, and TCI Communications, Inc., a Delaware corporation, pursuant to
which the Company has completed a holding company restructuring (the "Holding
Company Restructuring") whereby each outstanding share of Class A Common Stock,
par value $0.01 per share, of the Company and each outstanding share of Class B
Common Stock, par value $0.01 per share, of the Company was converted into and
exchanged for one share of Class A Common Stock, par value $0.01 per share, of
Cablevision and one share of Class B Common Stock, par value $0.01 per share, of
Cablevision, respectively, and whereby the Company became a wholly owned
subsidiary of Cablevision;
WHEREAS, the First Supplemental Indenture provides that the Exchange
Debentures (as defined therein) issued thereunder are convertible into the Class
A Common Stock, par value $0.01 per share, of the Company;
WHEREAS, as a result of the Holding Company Restructuring and pursuant
to Section 2.4(k) of the First Supplemental Indenture, the Company deems it
advisable to supplement the First Supplemental Indenture to provide that the
Exchange Debentures issuable thereunder be convertible into the Class A Common
Stock, par value $0.01 per share, of Cablevision instead of being convertible
into the Class A Common Stock, par value $0.01 per share, of the Company;
WHEREAS, Section 901 of the Indenture provides, among other things,
that the Company and the Trustee may enter into a supplemental indenture without
the consent of the Holders of Securities in order to evidence the succession of
the Company by another person and to cure certain ambiguities or inconsistencies
in the Indenture; and
<PAGE>
WHEREAS, the execution and delivery of this instrument has been duly
authorized, and all conditions and requirements necessary to make this
instrument a valid and binding agreement have been duly performed and complied
with;
NOW, THEREFORE, for and in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Indenture and First Supplemental Indenture
This Second Supplemental Indenture constitutes an integral part of the
Indenture and the First Supplemental Indenture.
SECTION 1.2. Definitions
For all purposes of this Second Supplemental Indenture, the Indenture
and the First Supplemental Indenture:
(1) Except as otherwise expressly provided for or unless the context
otherwise requires, capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Indenture and the First Supplemental
Indenture;
(2) The term "Class A Common Stock" shall mean the Class A Common
Stock, par value $0.01 per share, of Cablevision; and
(3) The term "Class B Common Stock" shall mean the Class B Common
Stock, par value $.01 per share, of Cablevision.
ARTICLE TWO
CONVERSION
SECTION 2.1. Conversion.
Pursuant to Section 2.4(k) of the First Supplemental Indenture, the
Holder of each Exchange Debenture outstanding on or after the Effective Date
shall have the right thereafter, during the period such Exchange Debenture shall
be convertible as specified in
-2-
<PAGE>
Section 2.4(a) of the First Supplemental Indenture, to convert such Exchange
Debenture only into Class A Common Stock.
SECTION 2.2. Provisions Related to Conversion.
All provisions in the Indenture and the First Supplemental Indenture
relating to any effect on the Conversion Price as a result of any actions of or
relating to the Company or taken by the Company in respect of the Class A Common
Stock, par value $0.01 per share, of the Company shall be deemed to refer to
actions of or relating to Cablevision or taken by Cablevision in respect of the
Class A Common Stock.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture.
Except as expressly modified or amended hereby, the Indenture and the
First Supplemental Indenture continue in full force and effect and are in all
respects confirmed and preserved.
SECTION 3.2. Governing Law.
This Second Supplemental Indenture and each Exchange Debenture shall be
governed by and construed in accordance with the laws of the State of New York.
This Second Supplemental Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended and, to the extent applicable, shall be
governed by such provisions.
SECTION 3.3. Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all with effect as of the day and
year first written above.
CSC HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK,
Trustee
By:
---------------------------------
Name:
Title:
-4-
EXECUTION COPY
CSC TKR, INC.
CABLEVISION OF BROOKHAVEN, INC.
CABLEVISION OF OAKLAND, INC.
CABLEVISION OF PATERSON, INC.
CSC TKR I, INC.
UA-COLUMBIA CABLEVISION OF WESTCHESTER, INC.
_____________
$800,000,000
CREDIT AGREEMENT
Dated as of March 4, 1998
TORONTO DOMINION (TEXAS), INC.
as Arranging Agent and as
Administrative Agent
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
THE CANADIAN IMPERIAL BANK OF COMMERCE
NATIONSBANK OF TEXAS, N.A.
THE CHASE MANHATTAN BANK
as Managing Agents
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01 Certain Defined Terms................................. 1
Section 1.02 Accounting Terms and Determinations................... 13
ARTICLE II
LOANS
Section 2.01 Loans................................................. 13
Section 2.02 Manner of Borrowing; Conversion and Continuation...... 13
Section 2.03 Reductions and Changes of Commitments................. 15
Section 2.04 Commitment Fee........................................ 16
Section 2.05 Notes................................................. 16
Section 2.06 Lending Offices....................................... 16
Section 2.07 Several Obligations; Remedies Independent............. 16
Section 2.08 Use of Proceeds....................................... 16
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 Prepayments........................................... 17
Section 3.02 Repayment of Loans.................................... 17
Section 3.03 Interest.............................................. 17
<PAGE>
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01 Payments.............................................. 18
Section 4.02 Pro Rata Treatment.................................... 18
Section 4.03 Computations.......................................... 19
Section 4.04 Non-Receipt of Funds by the Administrative Agent...... 19
Section 4.05 Sharing of Payments, Etc.............................. 19
Section 4.06 No Reductions......................................... 20
Section 4.07 Taxes................................................. 20
ARTICLE V
YIELD PROTECTION AND ILLEGALITY
Section 5.01 Additional Costs in Respect of Loans.................. 21
Section 5.02 Limitation on Types of Loans.......................... 23
Section 5.03 Illegality............................................ 23
Section 5.04 Certain Conversions of Loans Pursuant to Section
5.01 or 5.03.......................................... 23
Section 5.05 Compensation.......................................... 23
Section 5.06 Replacement of Banks.................................. 24
ARTICLE VI
GUARANTEE............................ 24
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01 Initial Loan.......................................... 26
Section 7.02 Each Loan............................................. 28
<PAGE>
ARTICLE VIII
REPRESENTATIONS
Section 8.01 Existence and Power................................... 28
Section 8.02 Subsidiaries.......................................... 29
Section 8.03 Authority; No Conflict................................ 29
Section 8.04 Financial Condition................................... 29
Section 8.05 Litigation; Etc....................................... 30
Section 8.06 Titles and Liens...................................... 30
Section 8.07 Regulations G and U................................... 30
Section 8.08 Taxes................................................. 30
Section 8.09 Other Credit Agreements............................... 30
Section 8.10 Full Disclosure....................................... 31
Section 8.11 No Default............................................ 31
Section 8.12 Approval of Regulatory Authorities.................... 31
Section 8.13 Binding Agreements.................................... 31
Section 8.14 Franchises............................................ 31
Section 8.15 Collective Bargaining Agreements...................... 31
Section 8.16 Investments........................................... 32
Section 8.17 TCI Acquisition....................................... 32
ARTICLE IX
PARTICULAR COVENANTS OF THE OBLIGORS AND THEIR SUBSIDIARIES
Section 9.01 Financial Statements and Other Information............ 32
Section 9.02 Taxes and Claims...................................... 34
Section 9.03 Insurance............................................. 34
Section 9.04 Maintenance of Existence; Conduct of Business......... 34
<PAGE>
Section 9.05 Maintenance of and Access to Properties............... 34
Section 9.06 Compliance with Applicable Laws....................... 34
Section 9.07 Litigation............................................ 34
Section 9.08 New Subsidiaries...................................... 35
Section 9.09 Franchises............................................ 35
Section 9.10 Indebtedness.......................................... 35
Section 9.11 Contingent Liabilities................................ 35
Section 9.12 Liens................................................. 36
Section 9.13 Leases................................................ 37
Section 9.14 Mergers, Acquisitions and Dispositions, Etc........... 37
Section 9.15 Investments........................................... 39
Section 9.16 Restricted Payments................................... 40
Section 9.17 Business.............................................. 40
Section 9.18 Transactions with Affiliates.......................... 40
Section 9.19 Issuance of Stock..................................... 40
Section 9.20 Operating Cash Flow to Total Interest Expense......... 40
Section 9.21 Cash Flow Ratio....................................... 40
ARTICLE X
DEFAULTS
Section 10.01 Events of Default...................................... 40
ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.01 Appointment, Powers and Immunities..................... 43
Section 11.02 Reliance by Administrative Agent....................... 43
<PAGE>
Section 11.03 Defaults............................................... 44
Section 11.04 Rights as a Bank....................................... 44
Section 11.05 Indemnification........................................ 44
Section 11.06 Non-Reliance on Administrative Agent and Other Banks... 45
Section 11.07 Failure to Act......................................... 45
Section 11.08 Resignation or Removal of Administrative Agent......... 45
Section 11.09 Agency Fee............................................. 45
ARTICLE XII
MISCELLANEOUS
Section 12.01 No Waiver.............................................. 46
Section 12.02 Notices................................................ 46
Section 12.03 Expenses, Etc.......................................... 46
Section 12.04 Amendments, Etc........................................ 47
Section 12.05 Successors and Assigns................................. 47
Section 12.06 Survival............................................... 50
Section 12.07 Liability of General Partners and Other Persons........ 50
Section 12.08 Counterparts........................................... 50
Section 12.09 Waiver................................................. 50
Section 12.10 Entire Agreement....................................... 51
Section 12.11 Governing Law.......................................... 51
Section 12.12 Captions, Etc.......................................... 51
Section 12.13 Waiver of Certain Defenses............................. 51
Section 12.14 Release; Acceptance of Release......................... 51
Section 12.15 Authorization of Third Parties to Deliver Information
and Discuss Affairs.................................... 52
<PAGE>
Schedule 2.02(a)(i) Form of Notice of Loan
Schedule 2.02(c) Form of Notice of Conversion
and Continuation
Schedule 2.06 Applicable Lending Offices
Schedule 4.07(c) Form of Certificate of Non-US Bank
Schedule 8.02 Subsidiaries
Schedule 8.03 Required Consents and
Governmental Approvals
Schedule 8.05 Existing Litigation
Schedule 8.14 Existing Franchises
Schedule 9.10 Existing Indebtedness
Schedule 9.11 Existing Guarantees
Schedule 9.12 Existing Liens
Schedule 9.15 Existing Investments
Schedule 12.02 Addresses for Notices
EXHIBIT A Form of Note
EXHIBIT B Form of Compliance Certificate
EXHIBIT C Form of Subscribers' Certificate
EXHIBIT D(1) Form of Certificate as to
Quarterly Financial Statements
EXHIBIT D(2) Form of Certificate as to Annual
Financial Statements
EXHIBIT E Form of Opinion of General Counsel
to the Obligors
EXHIBIT F(1) Form of Opinion of Special New
York Counsel to the Obligors
EXHIBIT F(2) Form of Opinion of Special New Jersey
Counsel to the Obligors
EXHIBIT F(3) Form of Opinion of Special FCC Counsel
Counsel to the Obligors
EXHIBIT G Form of Opinion of Special New
York Counsel to the
Administrative Agent
EXHIBIT H Form of Assignment and Acceptance
EXHIBIT I Consent to Assignment
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CREDIT AGREEMENT dated as of March 4, 1998 among CSC TKR, INC.,
CABLEVISION OF BROOKHAVEN, INC., CABLEVISION OF OAKLAND, INC., CABLEVISION OF
PATERSON, INC., CSC TKR I, INC., each a Delaware corporation, and UA-COLUMBIA
CABLEVISION OF WESTCHESTER INC., a New York corporation (collectively, the
"Obligors"; individually, each an "Obligor"), the Guarantors (as defined below)
which are parties hereto, the Banks which are parties hereto, together with
their respective successors and assigns (the "Banks"), TORONTO DOMINION (TEXAS),
INC., as Arranging Agent and as Administrative Agent, and THE BANK OF NEW YORK,
THE BANK OF NOVA SCOTIA, THE CANADIAN IMPERIAL BANK OF COMMERCE, NATIONSBANK OF
TEXAS, N.A. and THE CHASE MANHATTAN BANK, as Managing Agents.
WHEREAS, the Obligors desire to complete the TCI Acquisition so that
the Obligors and their Subsidiaries may engage in the business of developing,
constructing, owning, acquiring, altering, repairing, financing, operating,
maintaining, publishing, distributing, promoting and otherwise exploiting cable
television systems and related businesses, including, without limitation,
telecommunications services, data transmission and telephony activities. The
proceeds of the extensions of credit are to be employed in accordance with
Section 2.08 hereof, and each of the Obligors and their Subsidiaries expects to
derive benefit, directly or indirectly, from such loans. The Banks have agreed
to make the loans provided for hereby in reliance upon certain guarantees
furnished by the Guarantors.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
As used herein, the following terms shall have the following meanings (all
terms defined in this Article I or in other provisions of this Agreement in the
singular to have the same meanings when used in the plural and vice versa):
"Accumulated Funding Deficiency" shall mean an accumulated funding
deficiency as defined in Section 302 of ERISA.
"Additional Costs" shall have the meaning given to such term in Section
5.01 hereof.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc. in its
capacity as administrative agent for the Banks hereunder.
"Affected Loans" shall have the meaning given to such term in Section
5.04 hereof.
"Affected Type" shall have the meaning given to such term in Section
5.04 hereof.
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"Affiliate" shall mean, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of the power to direct or cause
the direction of management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract or otherwise), provided
that, in any event, any Person which owns directly or indirectly 10% or more of
the securities having ordinary voting power for the election of directors or
other governing body of a corporation or 10% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other Person; and
provided further that no individual shall be an Affiliate of a corporation or
partnership solely by reason of his or her being an officer, director or partner
of such entity, except in the case of a partner if his or her interests in such
partnership shall qualify him or her as an Affiliate.
"Agreement" shall mean this Credit Agreement, including all schedules
and exhibits hereto, as the same may be amended, supplemented or modified from
time to time.
"Annualized Operating Cash Flow" shall mean, as at any date, an amount
equal to Operating Cash Flow for the period of three complete consecutive
calendar months ending on or most recently prior to such date, multiplied by
four.
"Applicable Lending Office" shall mean, with respect to each Bank, for
each type of Loan, the lending office of such Bank (or of an affiliate of such
Bank) designated for such type of Loan in Schedule 2.06 hereto or such other
office of such Bank (or of an affiliate of such Bank) as such Bank may from time
to time specify to the Administrative Agent and the Obligors' Representative as
the office by which its Loans of such type are to be made and maintained.
"Applicable Margin" shall mean (i) 0.50% at any time from and including
the Effective Date to but excluding March 4, 1999 or (ii) 0.625% at any time
from and including March 4, 1999 to but excluding the Commitment Termination
Date.
"Assignment and Acceptance" shall have the meaning given to such term
in Section 5.06 hereof.
"Banks" shall have the meaning given to such term in the preamble to
this Agreement.
"Base Rate" shall mean, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(a) the rate of interest adopted by The Toronto-Dominion Bank (New York
Branch), from time to time, as its reference rate for the determination of
interest rates on loans of varying maturities in Dollars to United States
residents of varying degrees of creditworthiness and being quoted at such time
by The Toronto-Dominion Bank (New York Branch) as its "prime rate," which rate
is not necessarily The Toronto-Dominion Bank's lowest rate of interest; and
(b) the sum (adjusted to the nearest one-quarter of one percent (1/4 of
1%) or, if there is no nearest one-quarter of one percent (1/4 of 1%), to the
next higher one-quarter of one
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<PAGE>
percent (1/4 of 1%)) of (i) one-half of one percent (1/2 of 1%) per annum plus
(ii) the Federal Funds Rate.
"Base Rate Loans" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "Base Rate" in
this Section 1.01.
"BPU" shall mean the New Jersey Board of Public Utilities or successor
thereto.
"Business Day" shall mean any day on which commercial banks are not
authorized or required to close in New York City.
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property, which
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under generally accepted accounting principles
(including Statement of Financial Accounting Standards No. 13 of the Financial
Accounting Standards Board) and, for purposes of this Agreement, the amount of
such obligations shall be the capitalized amount thereof, determined in
accordance with generally accepted accounting principles (including such
Statement No. 13).
"Capital Maintenance Costs" shall mean, with respect to the Loans of
each Bank, any costs which such Bank determines are attributable to the
maintenance by such Bank or any of its affiliates, pursuant to any law or
regulation or any interpretation, directive or request (whether or not having
the force of law) of any court or governmental or monetary authority, whether in
effect on the Effective Date or thereafter, of capital in respect of its
maintaining Loans hereunder or its commitment to make Loans hereunder.
"Cash Flow Ratio" shall mean, as at any date, the ratio of (i) the sum
of the aggregate outstanding principal amount of all Indebtedness of the
Obligors and their Subsidiaries (determined on a consolidated basis but
excluding all obligations under any Interest Swap Agreement) outstanding on such
date to (ii) Annualized Operating Cash Flow determined as at the last day of the
month covered by the then most recent Subscribers' Certificate delivered to the
Banks pursuant to 9.01(e) hereof, a copy of which has been delivered to the
Administrative Agent (and any change in such ratio as a result of a change in
the amount of Indebtedness shall be effective as of the date such change shall
occur and any change in such ratio as a result of a change in the amount of
Annualized Operating Cash Flow shall be effective as of the date of receipt by
the Administrative Agent of the Subscribers' Certificate reflecting such
change).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean, as to each Bank, the amount set forth opposite
its name on the signature pages hereto under the heading "Commitment" or amount
set forth on any Assignment and Acceptance (as the same may be reduced or
otherwise adjusted from time to time as provided in this Agreement).
"Commitment Fee" shall have the meaning given to such term in Section
2.04 hereof.
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"Commitment Percentage" shall mean, as to each Bank at any time, the
percentage obtained by dividing such Bank's Commitment by the Total Commitment.
"Commitment Termination Date" shall mean the earlier of (i) the date
that is two years after the Effective Date and (ii) March 31, 2000.
"Compliance Certificate" shall mean a certificate of a senior financial
executive of the Obligors in substantially the form of Exhibit B hereto.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Obligors, are treated as a single
employer under Section 414(b) or 414(c) of the Code.
"Default" shall mean an Event of Default or any other event which with
notice and/or passage of time would become an Event of Default.
"Dolan" shall mean Charles F. Dolan.
"Dolan Family Interests" shall mean (i) any Dolan Family Member, (ii)
any trusts for the benefit of any Dolan Family Members, (iii) any estate or
testamentary trust of any Dolan Family Member for the benefit of any Dolan
Family Members, (iv) any executor, administrator, conservator or legal or
personal representative of any Person or Persons specified in clauses (i), (ii)
or (iii) above to the extent acting in such capacity and not individually and
(v) any corporation, partnership, limited liability company or other similar
entity, in each case 80% of the ownership interests of which is owned or
controlled by any of the foregoing or combination of the foregoing.
"Dolan Family Members" shall mean Dolan, his spouse, his descendants
and any spouse of any such descendants.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Effective Date" shall mean March 4, 1998.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Affiliate" shall mean, when used with respect to a Plan, ERISA,
the PBGC or a provision of the Code pertaining to employee benefit plans, any
Person that is a member of any group of organizations within the meaning of
Sections 414(b), (c), (m) or (o) of the Code of which any Obligor is a member.
"Eurodollar Base Rate" shall mean, with respect to any Eurodollar
Loans, the average (as determined by the Administrative Agent) of the rates per
annum (rounded upwards, if necessary, to the nearest 1/16 of 1%) determined by
the respective Reference Banks at approximately 11:00 a.m. New York time (or as
soon thereafter as practicable) on the day two Business Days prior to the first
day of the Interest Period for such Eurodollar Loans to be the rate quoted to
the Reference Banks by at least two internationally recognized money market
brokers selected by
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<PAGE>
the Reference Banks for the offering to the Reference Banks in the international
interbank market of Dollar deposits in an amount generally traded in the
international interbank market which most closely approximates the principal
amount of the Eurodollar Loans to be made by the respective Reference Banks, and
having a term commonly found among such deposits which most closely approximates
the term of such Eurodollar Loans, such rate to be notified by the Reference
Banks to the Administrative Agent. If any Reference Bank is not participating in
any Eurodollar Loans (pursuant to Section 5.04 hereof or for any other reason),
the Eurodollar Base Rate for such Loans for the applicable Interest Period shall
be determined by reference to the amount and term of the Eurodollar Loans which
such Reference Bank would have made had it been participating in such Eurodollar
Loans.
"Eurodollar Loans" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "Eurodollar
Base Rate" in this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loans for any Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the
Eurodollar Base Rate for such Loans for such Interest Period divided by 1 minus
the Reserve Requirement for such Loans for such Interest Period.
"Event of Default" shall mean any of the events described in Article X
hereof.
"Excluded Indebtedness" shall have the meaning given to such term in
Section 10.01(e) hereto.
"Federal Funds Rate" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (i) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (ii) if
such rate is not so published for any day, the Federal Funds Rate for such day
shall be the average rate quoted to The Toronto-Dominion Bank (New York Branch)
on such day on such transactions with Federal funds brokers of recognized
standing as may be determined by the Administrative Agent.
"Franchise" shall mean a franchise, license or other authorization or
right to construct, own, operate, promote and/or otherwise exploit any cable
television system granted by the Federal Communications Commission (or any
successor agency of the Federal government) or any state, county, city, town,
village or other local governmental authority.
"Funding Costs" for any Bank shall mean, with respect to any Eurodollar
Loan, an amount equal to the excess, if any, of (i) the amount of interest which
would have accrued on the principal amount paid, prepaid or converted or not
borrowed or converted for the period from the date of such payment, prepayment
or conversion or failure to borrow or convert to the last day of the Interest
Period for such Loan (or, in the case of a failure to borrow or convert, the
Interest Period for such Loan which would have commenced on the date of such
failure to borrow or convert) had such principal amount borne interest at the
Eurodollar Rate applicable to such Loan
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<PAGE>
over (ii) the interest component of the amount such Bank would have bid in the
London interbank market for Dollar deposits of leading banks in amounts
comparable to such principal amount and with maturities comparable to such
period (as reasonably determined by such Bank).
"Guarantee" shall have the meaning given to such term in Section 9.11
hereof.
"Guarantor" shall mean each Subsidiary of each Obligor, other than any
such Subsidiary that is an Obligor.
"Indebtedness" shall mean, as to any Person, Capital Lease Obligations
of such Person and other indebtedness of such Person for borrowed money (whether
by loan or the issuance and sale of debt securities) or for the deferred
purchase or acquisition price of property or services (and including, without
limitation, obligations of such Person for property taxes and judgments and
other awards giving rise to Permitted Liens described in clauses (ii) and (iii)
of the definition of "Permitted Liens" in this Section 1.01) other than accounts
payable (other than for borrowed money) incurred in the ordinary course of
business of such Person. Without limiting the generality of the foregoing, such
term shall include (a) when applied to any Obligor, all obligations of such
Obligor under Interest Swap Agreements and (b) when applied to any Obligor or
any other Person, all Indebtedness of others Guaranteed by such Person.
"Interest Period" shall mean:
(a) With respect to any Eurodollar Loans, the period
commencing on the date such Eurodollar Loans are made and ending on the
same day in the first, second, third, sixth or, subject to availability
from each Bank, twelfth calendar month thereafter, as the Obligors'
Representative may select as provided in Section 2.02 hereof; and
(b) With respect to any Base Rate Loans, the period commencing
on the date such Base Rate Loans are made and ending on the next
Quarterly Date thereafter.
Notwithstanding the foregoing: (i) no Interest Period with respect to any Loan
may end after the Commitment Termination Date; (ii) each Interest Period which
would otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, in the case of an Interest Period for Eurodollar
Loans, if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); (iii) any Interest Period
for a Eurodollar Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the calendar
month in which such Interest Period ends) shall, subject to clause (i) above,
end on the last Business Day of a calendar month; and (iv) no more than 12
Interest Periods for all Eurodollar Loans hereunder shall be in effect at the
same time and, if the number of Interest Periods for Eurodollar Loans would
otherwise be in excess of 12, Eurodollar Loans shall not be available hereunder.
"Interest Swap Agreement" shall mean an interest rate swap, cap or
collar agreement or similar arrangement among any Obligor and/or any Subsidiary
of any Obligor and one or more banks or financial institutions providing for
protection against fluctuations in interest rates or the exchange of nominal
interest obligations among such Obligor and/or such Subsidiary and such
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<PAGE>
banks or financial institutions, either generally or under specific
contingencies, as said agreement or arrangement shall be modified and
supplemented and in effect from time to time.
"Investments" shall have the meaning given to such term in Section 9.15
hereof.
"Leases" shall mean leases and subleases (excluding Capital Lease
Obligations), licenses to use real and/or tangible personal property, easements
and pole attachments and conduit or trench agreements and other rights to use
telephone or utility poles, conduits or trenches.
"Liens" shall have the meaning given to such term in Section 9.12
hereof.
"Loans" shall mean Base Rate Loans and Eurodollar Loans made pursuant
to Section 2.01 hereof.
"Majority Banks" shall mean, at any time, Banks having Commitments
aggregating at least 60% of the amount of the Total Commitment; provided that
such percentage shall be 51% for purposes of such term as used in Section 5.02
hereof.
"Margin Stock" shall mean "margin stock" as defined in Regulations G
and U.
"Materially Adverse Effect" shall mean a materially adverse effect upon
(i) the business, assets, financial condition or results of operations of the
Obligors and their Subsidiaries taken as a whole, (ii) the ability of the
Obligors and their Subsidiaries to perform the Obligations hereunder or (iii)
the legality, validity, binding nature or enforceability of this Agreement.
"Multiemployer Plan" shall mean a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean proceeds received by any Obligor or any
Subsidiary of any Obligor in cash from the sale or other disposition of property
of any Obligor or any Subsidiary of any Obligor, after deduction of the costs
of, and any income, franchise, transfer or other tax liability arising from,
such sale or disposition. If any amount payable to any Obligor or any such
Subsidiary in respect of any such sale or disposition shall be or become
evidenced by any promissory note or other negotiable or non-negotiable
instrument, the cash proceeds received on any such note or instrument shall
constitute Net Cash Proceeds.
"New Subsidiary" means any Person that becomes a Subsidiary of any
Obligor after the date of this Agreement.
"Non-US Bank" means a Person that is not a United States Person and
that is not described in Section 881(c)(3) of the Code.
"Notes" shall mean the promissory notes provided for by Section 2.05
hereof evidencing the Loans.
"Obligations" shall mean, collectively, the obligations of the Obligors
hereunder in respect of the principal of and interest on the Loans and all
obligations in respect of fees and other amounts payable by the Obligors
hereunder.
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"Obligor" and "Obligors" shall have the meaning given to such terms in
the preamble to this Agreement.
"Obligors' Representative" means Cablevision of Oakland, Inc.
"Operating Cash Flow" shall mean, for any period, the following for the
Obligors and their Subsidiaries for such period, determined on a consolidated
basis in accordance with generally accepted accounting principles: (i) aggregate
operating revenues minus (ii) aggregate operating expenses (including technical,
programming, sales, selling, general administrative expenses and salaries and
other compensation, in each case net of amounts allocated to Affiliates, paid to
any general partner, director, officer or employee of any Obligor or any
Subsidiary of any Obligor, but excluding interest, depreciation and amortization
and, to the extent otherwise included in operating expenses, any losses
resulting from a writeoff or writedown of Investments by any Obligor or any
Subsidiary of any Obligor in Affiliates); provided, however, that for purposes
of determining Operating Cash Flow for any period (A) there shall be excluded
(x) all management fees paid to any Obligor during such period other than any
such fees paid in cash to the extent not in excess of 3% of Operating Cash Flow
as determined without including any such fees and (y) the amortization of
deferred installation income and (B) Operating Cash Flow for such period shall
be increased or (except for purposes of the calculations required by Section
9.14(a)(vi)(B) reduced, as the case may be, by the Operating Cash Flow of assets
acquired or disposed of by any Obligor or any Subsidiary of any Obligor on or
after the first day of such period, determined on a pro forma basis reasonably
satisfactory to the Administrative Agent (it being agreed that it shall be
satisfactory to the Administrative Agent that such pro forma calculations may be
based upon generally accepted accounting principles as applied in the
preparation of the Obligors' financial statements delivered in accordance with
Section 9.01 hereof rather than as applied in the financial statements of the
company whose assets were acquired and may include, in the Obligors' discretion,
a reasonable estimate of savings under existing contracts resulting from any
such acquisitions), as though such Obligor or such Subsidiary acquired or
disposed of such assets on the first day of such period.
"Paramus-Hillsdale Sale" means the sale by the Obligors of the cable
television systems of the Obligors serving approximately 5,200 subscribers on
the Effective Date in the communities of Paramus and Hillsdale, New Jersey.
"Parent Corp." shall mean CSC Parent Corp., a Delaware corporation.
"Participation Agreement" shall have the meaning given to such term in
Section 12.05(c) hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Liens" shall mean, with respect to any Person: (i) pledges
or deposits by such Person under workers' compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Indebtedness) or Leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or U.S. Government bonds to
secure surety or
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appeal bonds to which such Person is a party, or deposits as security for
contested taxes or import duties or for the payment of rent; (ii) Liens imposed
by law, such as carriers', warehousemen's and mechanics' Liens or other Liens
arising out of judgments or awards against such Person with respect to which
such Person shall then be prosecuting appeal or other proceedings for review
(and as to which all foreclosures and other enforcement proceedings shall have
been fully bonded or otherwise effectively stayed); (iii) Liens for property
taxes not yet subject to penalties for non-payment or which are being contested
in good faith and by appropriate proceedings (and as to which all foreclosures
and other enforcement proceedings shall have been fully bonded or otherwise
effectively stayed); (iv) Liens in favor of issuers of performance bonds issued
pursuant to the request of and for the account of such Person in the ordinary
course of its business; (v) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real properties or Liens
incidental to the conduct of the business of such Person or to the ownership of
its properties which were not incurred in connection with Indebtedness or other
extensions of credit and which do not in the aggregate materially detract from
the value of said properties or materially impair their use in the operation of
the business of such Person; or (vi) any Lien on any Margin Stock.
"Person" shall mean an individual, a corporation, a partnership, a
limited liability company, a joint venture or adventure, a trust or estate or
unincorporated organization, a joint stock company or other similar
organization, a government or any political subdivision thereof, or any other
legal entity.
"Plan" shall mean, at any time, an employee pension benefit plan which
is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and is either (i) maintained by any Obligor or an
ERISA Affiliate or (ii) maintained pursuant to a collective bargaining agreement
or any other arrangement under which more than one employer makes contributions
and to which any Obligor or an ERISA Affiliate is then making or accruing an
obligation to make contributions or has within the preceding six plan years made
contributions.
"Pole Rental Leases" shall mean Leases under which the Obligors and
their Subsidiaries have the right to use telephone or utility poles, conduits or
trenches for the purpose of supporting or housing cables of the respective
systems.
"Post-Default Rate" shall mean, in respect of any principal of any Loan
or any other amount payable by the Obligors under this Agreement which is not
paid when due (whether at stated maturity, by acceleration or otherwise), a rate
per annum during the period commencing on the due date until such amount is paid
in full equal to 2% above the Base Rate as in effect from time to time plus the
Applicable Margin for Base Rate Loans; provided that, if such amount in default
is principal of a Eurodollar Loan and the due date is a day other than the last
day of an Interest Period therefor, the "Post-Default Rate" for such principal
shall be, for the period commencing on the due date and ending on the last day
of the Interest Period therefor, 2% above the interest rate for such Loan for
such Interest Period as provided in Section 3.03 hereof, and thereafter the rate
provided for above in this definition.
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"Prohibited Transaction" shall mean a transaction that is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA.
"Proposed Bank" shall have the meaning given to such term in Section
12.05(h) hereof.
"Quarter" shall mean a fiscal quarterly period of the Obligors.
"Quarterly Dates" shall mean the last day of each March, June,
September and December, the first of which shall be on March 31, 1998, provided
that, if any such day is not a Business Day, the relevant Quarterly Date shall
be the next succeeding Business Day.
"Reference Banks" shall mean The Toronto-Dominion Bank (New York
Branch) and The Bank of New York.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"Regulation G" shall mean Regulation G of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"Regulatory Change" shall mean, with respect to any Bank, any change on
or after the Effective Date in United States Federal, state or foreign laws or
regulations (including Regulation D) or the adoption or making on or after such
date of any interpretations, directives or requests applying to a class of banks
including such Bank of or under any United States Federal or state, or any
foreign, laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Reportable Event" shall mean (i) any of the events set forth in
Section 4043(b) (other than a Reportable Event as to which the provision of 30
days' notice to the PBGC is waived under applicable regulations), 4068(f) or
4063(a) of ERISA or the regulations thereunder, (ii) an event requiring any
Obligor or any ERISA Affiliate to provide security to a Plan under Section
401(a)(29) of the Code and (iii) any failure to make payments required by
Section 412(m) of the Code if such failure continues for 30 days following the
due date for any required installment.
"Required Payment" shall have the meaning given to such term in Section
4.04 hereof.
"Reserve Requirement" shall mean, for any Eurodollar Loans of any Bank
for any Interest Period, the rate at which such Bank actually is required to
maintain reserves (including any marginal, supplemental or emergency reserves)
during such Interest Period under Regulation D against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting the effect
of the foregoing, the Reserve Requirement shall reflect any other reserves
actually required to be maintained by such Bank by reason of any Regulatory
Change against (A) any category of liabilities which includes deposits by
reference to which the Eurodollar Base Rate for
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such Eurodollar Loans is to be determined as provided in the definition of
"Eurodollar Base Rate" in this Section 1.01 or (B) any category of extensions of
credit or other assets which include Eurodollar Loans.
"Restricted Payments" shall mean direct or indirect distributions,
dividends or other payments by any Obligor or any Subsidiary of any Obligor on
account of (including, without limitation, sinking fund or other payments on
account of the redemption, retirement, purchase or acquisition of) any general
or limited partnership or joint venture interest in, or any capital stock of,
such Obligor or such Subsidiary, as the case may be (whether made in cash,
property or obligations), other than any such distributions, dividends and other
payments made by any Subsidiary of any Obligor to any other Subsidiary of any
Obligor or to any Obligor.
"Specified Existing Indebtedness" shall mean the Indebtedness listed as
Specified Existing Indebtedness on Schedule 9.10.
"Subscribers' Certificate" shall mean a certificate of a senior
financial executive of the Obligors in substantially the form of Exhibit C
hereto.
"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership, joint venture or adventure, trust or estate:
(a) in the case of a corporation, of which a majority of the
outstanding capital stock having ordinary voting power to elect a majority of
the Board of Directors of such corporation (irrespective of whether or not at
the time capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency);
(b) in the case of a partnership or joint venture, in which such Person
is a general partner or joint venturer or of which a majority of the partnership
or other ownership interests; or
(c) in the case of a trust or estate, the beneficial interest of which
is at the time directly or indirectly owned by such Person, by such Person and
one or more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Tax" means any Federal, State or foreign tax, assessment or other
governmental charge (including any withholding tax) upon a Person or upon its
assets, revenues, income or profits.
"TCI Acquisition" shall mean the transactions contemplated by the TCI
Acquisition Documents, other than the Second-Tier Reorganization (as defined in
and contemplated by the Master Reorganization Agreement referred to in the
definition of "TCI Acquisition Documents" herein).
"TCI Acquisition Documents" shall mean (i) the Amended and Restated
Contribution and Merger Agreement, dated as of June 6, 1997, by and among
Cablevision Systems Corporation, Parent Corp., CSC Merger Corporation and TCI
Communications, Inc., (ii) the Master Reorganization Agreement, dated as of
March 3, 1998, among Parent Corp. and Cablevision Systems Corporation, and (iii)
the Assignment and Assumption Agreement, dated as of March 4, 1998, by and among
Parent Corp., CSC TKR, Inc., CSC TKR I, Inc., Cablevision of Oakland, Inc.,
Cablevision of Brookhaven, Inc. and Cablevision of Paterson, Inc.
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"Termination Event" shall mean (i) a Reportable Event, (ii) the
termination of a Plan, or the filing of a notice of intent to terminate a Plan,
or the treatment of a Plan amendment as a termination under Section 4041(c) of
ERISA, (iii) the institution of proceedings to terminate a Plan under Section
4042 of ERISA or (iv) the appointment of a trustee to administer any Plan under
Section 4042 of ERISA.
"Total Available Commitment" shall mean, as of any date, the Total
Commitment as of such date minus an amount equal to the excess of (i) the
aggregate Net Cash Proceeds to be used as specified in all notices given by the
Obligors' Representative to the Administrative Agent in accordance with Sections
2.03(b) hereof over (ii) the sum of (x) the aggregate amount of all reductions
of the Total Commitment required by reason of the provisos to Section 2.03(b)
with respect to such Net Cash Proceeds and (y) the aggregate amount of Loans
(including the Loans requested to be made on such date) the proceeds of which
have been or, upon the making thereof, will be used for the purposes specified
in such notices in accordance with such Section.
"Total Commitment" shall mean at any time the aggregate amount of the
Commitments of all the Banks (as the same may be reduced or otherwise adjusted
from time to time as provided in this Agreement).
"Total Interest Expense" shall mean, for any period, the aggregate
amount of interest accrued in respect of Indebtedness (including the interest
component of rentals in respect of Capital Lease Obligations) of the Obligors
and their Subsidiaries (determined on a consolidated basis) during such period.
For purposes hereof, the amount of interest accrued in respect of Indebtedness
for any period (A) shall be increased (to the extent not already treated as
interest expense or income, as the case may be) by the excess, if any, of
amounts payable by any Obligor arising under any Interest Swap Agreements during
such period over amounts receivable by such Obligor thereunder (or reduced by
the excess, if any, of such amounts receivable over such amounts payable) and
interest on a Capital Lease Obligation shall be deemed to accrue at an interest
rate reasonably determined by the applicable Obligor to be the rate of interest
implicit in such Capital Lease Obligation in accordance with generally accepted
accounting principles (including Statement of Financial Accounting Standards No.
13) and (B) shall be increased or reduced, as the case may be, by the amount of
interest accrued during such period in respect of Indebtedness of any Obligor or
any Subsidiary of any Obligor in respect of assets acquired or disposed of by
such Obligor or such Subsidiary on or after the first day of such period,
determined on a pro forma basis reasonably satisfactory to the Administrative
Agent (it being agreed that it shall be satisfactory to the Administrative Agent
that such pro forma calculations may be based upon generally accepted accounting
principles as applied in the preparation of the Obligors' financial statements
delivered in accordance with Section 9.01 hereof rather than as applied in the
financial statements of the company whose assets were acquired and may include,
in the Obligors' discretion, a reasonable estimate of savings under existing
contracts resulting from any such acquisitions), as though such Obligor or such
Subsidiary acquired or disposed of such assets on the first day of such period.
"United States Person" means a corporation, partnership or other entity
created, organized or incorporated under the laws of the United States of
America or a State thereof (including the District of Columbia).
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Section 1.02 Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be delivered hereunder shall be prepared, in accordance with
generally accepted accounting principles as in effect on December 31, 1996,
applied on a consolidated basis consistent with the audited financial statements
of the Obligors referred to in Section 8.04 hereof. To enable the ready
determination of compliance by the Obligors and their Subsidiaries with the
various covenants set forth in Article IX hereof, each of the Obligors agrees
that the fiscal year of itself and each of its Subsidiaries shall end each year
on December 31 and the first three Quarters in each year shall end on March 31,
June 30 and September 30, respectively.
ARTICLE II
LOANS
Section 2.01 Loans. Each Bank severally agrees, on the terms and
conditions set forth in this Agreement:
(a) The Loans. On or after the Effective Date, to make one or
more Loans to the Obligors from time to time on any Business Day prior to the
Commitment Termination Date in an aggregate principal amount not to exceed at
any time outstanding such Bank's Commitment; provided that at no time shall the
aggregate outstanding principal amount of all Loans exceed the Total Available
Commitment.
(b) Types of Loans. The Loans, at the option of the Obligors,
may be made as, and from time to time continued as or converted into, Base Rate
Loans or Eurodollar Loans of any permitted type, or any combination thereof;
provided, however, that each borrowing of Loans shall be in an aggregate amount
equal to $500,000 or an integral multiple of $250,000 in excess thereof.
Section 2.02 Manager of Borrowing; Conversion and Continuation. (a)
Notice of Borrowing. The Obligors' Representative shall give the Administrative
Agent (which shall promptly notify the Banks) notice of each borrowing of Loans
hereunder substantially in the form of Schedule 2.02(a) hereto, which notices
shall be irrevocable and effective only upon receipt by the Administrative
Agent, shall specify the aggregate amount, the type or types and date of the
Loans to be borrowed and (in the case of Eurodollar Loans) the duration of the
Interest Period therefor and shall be given not later than 11:00 a.m. New York
time on the day which is not less than the number of Business Days prior to the
date of such borrowing specified below:
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Number of
Type Business Days
---- -------------
Base Rate Loan 0
Eurodollar Loan 3
Notwithstanding the foregoing, any notice given by the Obligors' Representative
to the Administrative Agent under this Section 2.02(a) may be given orally by
telephone and confirmed in writing within one Business Day. In the case of any
discrepancies between oral and written notices received by the Administrative
Agent, the oral notice shall be effective as understood in good faith by the
Administrative Agent.
(b) Funding. Not later than 1:00 p.m. New York time on the
date specified for borrowing hereunder, each Bank shall make available the
amount of the Loan to be made by it on such date to the Administrative Agent in
immediately available funds, for the account of the Obligors. The amount so
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Obligors by depositing the same, in
immediately available funds, in a joint account of the Obligors designated by
the Obligors' Representative or by wiring the same, in immediately available
funds, to any account specified by the Obligors' Representative in its notice of
borrowing.
(c) Conversion and Continuation. (i) All or any part of the
principal amount of any Loan may, on any Business Day, be converted into another
type or types of Loans, except that Eurodollar Loans may be converted only on
the last day of the applicable Interest Period.
(ii) Base Rate Loans shall continue as Base Rate Loans unless
and until such Loans are converted into Eurodollar Loans of any type. Each
Eurodollar Loan shall continue as a Eurodollar Loan until the end of the then
current Interest Period therefor, at which time it shall be automatically
converted into a Base Rate Loan unless the Obligors' Representative shall have
given the Administrative Agent notice in accordance with Section 2.02(c)(iv)
hereof requesting either that such Eurodollar Loans continue as Eurodollar Loans
of such type for another Interest Period or that such Eurodollar Loans be
converted into Eurodollar Loans of another type at the end of such Interest
Period.
(iii) Notwithstanding anything to the contrary contained in
Section 2.02(c)(i) or (ii), during an Event of Default, the Administrative Agent
shall, at the direction of the Majority Banks, notify the Obligors'
Representative that Loans may only be converted into or continued as Loans of
certain specified types and, thereafter, until no Event of Default shall
continue to exist, Loans may not be converted into or continued as Loans of any
type other than one or more of such specified types.
(iv) The Obligors' Representative shall give the
Administrative Agent (which shall promptly notify the Banks) notice of each
conversion or continuation of Loans hereunder substantially in the form of
Schedule 2.02(c) hereto, which notices shall be irrevocable and effective only
upon receipt by the Administrative Agent, shall specify (x) the aggregate amount
and the type of the Loans to be converted or continued and (in the case of
Eurodollar Loans) the duration of the Interest Period therefor, (y) the
requested date of such conversion or continuation
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and (z) the amount and type or types of Loans into which such Loans are to be
converted or as which such Loans are to be continued, and shall be given not
later than 11:00 a.m. New York time on the day which is not less than the number
of Business Days prior to the date of such conversion into or continuation as
the type of Loans specified below:
Number of
Type Business Days
---- -------------
Base Rate Loan 0
Eurodollar Loan 3
Notwithstanding the foregoing, any notice given by the Obligors' Representative
to the Administrative Agent under this Section 2.02(c)(iv) may be given orally
by telephone and confirmed in writing within one Business Day. In the case of
any discrepancies between oral and written notices received by the
Administrative Agent, the oral notice shall be effective as understood in good
faith by the Administrative Agent.
Section 2.03 Reductions and Changes of Commitments.
(a) Optional Reductions and Terminations. The Obligors shall have the
right to terminate or reduce the Total Commitment at any time or from time to
time, provided that (i) the Obligors' Representative shall give notice of each
such termination or reduction to the Administrative Agent at least two Business
Days prior thereto, (ii) each partial reduction thereof shall be in an aggregate
amount at least equal to $5,000,000 and (iii) the Total Commitment may not be
reduced at any time to an amount less than the aggregate principal amount of the
Loans outstanding at such time.
(b) Special Mandatory Reductions. The Total Commitment shall be
automatically reduced upon the date of any sale, transfer or other disposition
of the types permitted under Section 9.14(a)(vi) hereof (other than the
Paramus-Hillsdale Sale), by an amount equal to 50% of the excess of the Net Cash
Proceeds thereof over all or any portion of such Net Cash Proceeds that will be
used, as specified in a notice from the Obligors' Representative to the
Administrative Agent, for an acquisition permitted under Section 9.14(b)(ii)
hereof; provided, however, that if the applicable Obligor or the applicable
Subsidiary shall not have entered into a binding purchase agreement with respect
to any such acquisition on or before the date that is six months after the date
of such disposition, the Total Commitment shall be automatically reduced
(without duplication) on such date by an amount equal to 50% of the entire Net
Cash Proceeds of such sale, transfer or disposition; and provided further,
however, that if the applicable Obligor or the applicable Subsidiary shall have
entered into a binding purchase agreement within six months after the date of
such disposition, but does not complete such acquisition within nine months of
signing such binding purchase agreement, the Total Commitment shall
automatically be reduced (without duplication) on the last day of such
nine-month period by an amount equal to 50% of the entire Net Cash Proceeds of
such sale, transfer or disposition.
(c) No Reinstatement. The Total Commitment once terminated or reduced
may not be reinstated.
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(d) Pro Rata Treatment. Except to the extent otherwise provided herein,
each reduction of the Total Commitment shall be applied to the Commitments of
the Banks pro rata in accordance with their respective Commitment Percentages.
Section 2.04 Commitment Fee. The Obligors shall pay to the
Administrative Agent for the account of each Bank a commitment fee (the
"Commitment Fee") on the daily average unutilized amount of such Bank's
Commitment for the period from and including the Effective Date to but not
including the earlier of the date such Bank's Commitment is terminated and the
Commitment Termination Date, at a rate per annum equal to 0.250%. For purposes
of calculating the Commitment Fee, the Commitment of each Bank shall be deemed
to be utilized in an amount equal to the sum of the aggregate outstanding
principal amount of such Bank's Loans. Accrued Commitment Fees under this
Section 2.04 shall be payable in arrears on each Quarterly Date and on the date
of any termination or reduction of the Total Commitment to the extent accrued
and unpaid on the portion of the Total Commitment then terminated or reduced.
Section 2.05 Notes. (a) Form of Notes. The Loans made by each Bank
shall be evidenced by a single Note of the Obligors in substantially the form of
Exhibit A hereto, dated the Effective Date.
(b) Endorsements. Each Bank is hereby authorized by the Obligors to
endorse on a schedule attached to each Note of such Bank (or any continuation
thereof) the amount and date of each Loan made by such Bank to the Obligors
hereunder, and the amount of each payment on account of principal of such Loan
received by such Bank, provided that any failure by such Bank to make any such
endorsement shall not affect the obligations of the Obligors under such Note or
hereunder in respect of such Loans.
Section 2.06 Lending Offices. The Loans of each type made by each Bank
shall be made and maintained at such Bank's Applicable Lending Office set forth
on Schedule 2.06 for Loans of such type.
Section 207 Several Obligations; Remedies Independent. The failure of
any Bank to make any Loan to be made by it on the date specified therefor shall
not relieve any other Bank of its obligation to make its Loan on such date, but
neither the Administrative Agent nor any Bank shall be responsible for the
failure of any other Bank to make a Loan to be made by such other Bank. The
amounts payable by the Obligors at any time hereunder and under the Notes to
each Bank shall be a separate and independent debt and each Bank shall, subject
to Section 10.01 hereof, be entitled to protect and enforce its rights arising
out of this Agreement and its Note and it shall not be necessary for any other
Bank or the Administrative Agent to consent to, or be joined as an additional
party in, any proceedings for such purposes.
Section 2.08. Use of Proceeds. The proceeds of the Loans made hereunder
shall be used only (x) to finance the TCI Acquisition (including the repayment
of existing Indebtedness related to the assets being acquired by the Obligors
pursuant to the TCI Acquisition), (y) for the general business purposes of the
Obligors and their Subsidiaries and (z) for any transaction or activity in which
the Obligors and their Subsidiaries are permitted to engage under the provisions
of this Agreement.
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ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 Prepayments (a) Optional Prepayments. Any Obligor may, at
any time and from time to time (subject, in the case of Eurodollar Loans, to
Section 5.05 hereof), prepay Base Rate Loans on any Business Day if prior notice
is given to the Administrative Agent before 11:00 a.m. New York time on such day
(and if such notice is received by the Administrative Agent after 11:00 a.m. New
York time, on the next succeeding Business Day), and Eurodollar Loans upon not
less than three Business Days' prior notice to the Administrative Agent (and the
Administrative Agent shall promptly notify the Banks in each case of such
notice), which notice shall specify the prepayment date (which shall be a
Business Day) and the amount of the prepayment (which shall be not less than
$1,000,000), and shall be irrevocable and effective only upon receipt by the
Administrative Agent, provided that, in the case of Eurodollar Loans, interest
on the principal prepaid, accrued to the prepayment date, shall be paid on the
prepayment date.
(b) Mandatory Prepayments. The Obligors shall, upon any sale,
transfer or other disposition permitted under Section 9.14(a)(vi) hereof (other
than the Paramus-Hillsdale Sale), prepay Loans in an amount equal to 50% of the
Net Cash Proceeds thereof. Notwithstanding anything in this Agreement to the
contrary, amounts prepaid from any sale, transfer or other disposition pursuant
to the foregoing sentence may be reborrowed by the Obligors solely for the
purpose of effecting acquisitions permitted under Section 9.14(b)(ii) hereof and
solely to the extent that such disposition has not resulted in a mandatory
reduction of the Total Commitment pursuant to the provisos to Section 2.03(b)
hereof.
Section 3.02 Repayment of Loans. The aggregate outstanding principal
amount of the Loans shall mature and become due and payable, and shall be repaid
by the Obligors, together with all accrued and unpaid interest thereon and any
amounts payable pursuant to Section 5.05 hereof in connection therewith, on the
Commitment Termination Date.
Section 3.03 Interest. (a) The Obligors hereby promise to pay to the
Administrative Agent for the account of each Bank interest on the unpaid
principal amount of each Loan made by such Bank for the period commencing on the
date of such Loan to but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(i) if such Loan is a Base Rate Loan, the Base Rate plus the
Applicable Margin; and
(ii) if such Loan is a Eurodollar Loan, the Eurodollar Rate for such
Loan for the Interest Period therefor plus the Applicable Margin.
Notwithstanding the foregoing, the Obligors hereby promise to pay to the
Administrative Agent for the account of each Bank interest at the applicable
Post-Default Rate on any principal of any Loan made by such Bank, and on any
other amount payable by the Obligors hereunder to or for the account of such
Bank (but, if such amount is interest, only to the extent legally enforceable),
which shall not be paid in full when due (whether at stated maturity, by
acceleration or
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otherwise), for the period commencing on the due date thereof until the same is
paid in full. Interest at the Post-Default Rate shall be due upon demand.
(b) Accrued interest on each Loan shall be payable (i) on the last day
of each Interest Period for such Loan (and, if such Interest Period is longer
than three months (in the case of a Eurodollar Loan) on each three-month
anniversary of the first day of such Interest Period), (ii) in the case of a
Eurodollar Loan, when such Loan shall be converted or be due by reason of
prepayment or (iii) when such Loan shall be due at maturity or by reason of
acceleration or otherwise (other than by reason of prepayment). Promptly after
the determination of any interest rate provided for herein or any change
therein, the Administrative Agent shall notify the Banks and the Obligors'
Representative thereof.
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01 Payments. Except to the extent otherwise provided herein,
all payments of principal, interest and other amounts to be made by the Obligors
hereunder and under the Notes shall be made in Dollars, in immediately available
funds, to the Administrative Agent not later than 11:00 a.m. New York time on
the date on which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the next succeeding
Business Day). The Administrative Agent, or any Bank for whose account any such
payment is made, may (but shall not be obligated to) debit the amount of any
such payment which is not made by such time to any ordinary deposit account of
any of the Obligors with the Administrative Agent or such Bank, as the case may
be. The Obligors' Representative shall, at the time of any Obligor making any
payment hereunder or under any Note, specify to the Administrative Agent the
Loans or other amounts payable by the Obligors hereunder to which such payment
is to be applied (but in the event that the Obligors' Representative fails to so
specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may apply such payment as it may elect in its sole
discretion, but subject to Section 4.02 hereof). Each payment received by the
Administrative Agent hereunder or under any Note for account of a Bank shall be
paid promptly to such Bank, in immediately available funds, for account of such
Bank's Applicable Lending Office for the Loan in respect of which such payment
is made.
Section 4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein: (a) subsequent to the initial borrowing hereunder, the Loans
shall be made by the Banks pro rata according to their respective Commitment
Percentages; (b) each payment by any Obligor of principal of the Loans shall be
made to the Administrative Agent for the account of the Banks pro rata in
accordance with the respective unpaid principal amounts of such Loans held by
the Banks; (c) each payment by any Obligor of interest on Loans of a particular
type shall be made to the Administrative Agent for the account of the Banks
holding Loans of such type pro rata in accordance with the respective unpaid
principal amounts of such Loans held by such Banks; and (d) each payment of the
Commitment Fee shall be made for the account of the Banks pro rata in accordance
with their respective Commitment Percentages.
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Section 4.03 Computations. Interest on Eurodollar Loans and the
Commitment Fee shall be computed on the basis of a year of 360 days and actual
days elapsed (including the first day but excluding the last day) occurring in
the period for which payable, and interest on Base Rate Loans shall be computed
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed (including the first day but excluding the last day) occurring in the
period for which payable, except that all interest determined on the basis of
the Post-Default Rate shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding the last day).
Section 4.04 Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Bank or the Obligors'
Representative prior to the date on which such Bank is to make payment to the
Administrative Agent of the proceeds of a Loan to be made by it hereunder or the
Obligors are to make a payment to the Administrative Agent for the account of
one or more of the Banks, as the case may be (such payment being herein called
the "Required Payment"), which notice shall be effective upon receipt, that such
Bank or the Obligors, as the case may be, do not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient on such date and, if such Bank or the Obligors, as the case
may be, have not in fact made the Required Payment to the Administrative Agent,
the recipient of such payment shall, on demand, pay to the Administrative Agent
the amount made available to it together with interest thereon in respect of the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at the Federal Funds Rate.
Section 4.05. Sharing of Payments, Etc. Each of the Obligors and the
Guarantors agrees that, in addition to (and without limitation of) any right of
set-off, banker's lien or counterclaim a Bank may otherwise have, each Bank
shall be entitled, at its option, to offset balances held by it for account of
such Obligor or such Guarantor at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Bank's Loans
hereunder, which is not paid when due (regardless of whether such balances are
then due to such Obligor or such Guarantor), in which case it shall promptly
notify the Administrative Agent and such Obligor or such Guarantor thereof,
provided that such Bank's failure to give such notice shall not affect the
validity thereof. If a Bank shall obtain payment of any principal of or interest
on any Loan made by it to the Obligors under this Agreement, through the
exercise of any right of set-off, banker's lien, counterclaim or similar right,
or otherwise, and, as a result of such payment, such Bank shall have received a
greater percentage of the amounts then due hereunder by the Obligors to such
Bank than the percentage received by other Banks, it shall promptly purchase
from such other Banks participations in the Loans made by such other Banks in
such amounts, and make such other adjustments from time to time as shall be
equitable to the end that all the Banks shall share the benefit of such excess
payment (net of any expense which may be incurred by such Bank in obtaining or
preserving such excess payment) pro rata in accordance with the unpaid principal
and interest on the Loans held by each of the Banks. To such end all the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. The Obligors and the Guarantors agree that any Bank so purchasing a
participation in the Loans made by other Banks may exercise all rights of
set-off, banker's lien, counterclaim or similar rights with respect to
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such participation as fully as if such Bank were a direct holder of Loans in the
amount of such participation. Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Obligors or the Guarantors. If under any
applicable bankruptcy, insolvency or other similar law, any Bank receives a
secured claim in lieu of a set-off to which this Section 4.05 applies, such Bank
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Banks entitled under this
Section 4.05 to share in the benefits of any recovery on such secured claim.
Section 4.06 No Reductions. All payments due to the Administrative
Agent or any Bank under this Agreement shall be made by the Obligors, without
any reduction or deduction whatsoever, including any reduction or deduction for
any set-off, recoupment, counterclaim or Tax, except, subject to Section 4.07,
for any withholding or deduction for Taxes required to be withheld or deducted
under applicable law.
Section 4.07 Taxes. (a) Taxes Payable by the Obligors. If under
applicable law any Tax is required to be withheld or deducted from, or is
otherwise payable by the Obligors in connection with, any payment to the
Administrative Agent or any Bank under this Agreement, the Obligors shall,
subject to Section 4.07(b), pay to the Administrative Agent or such Bank, as
applicable, such additional amounts as may be necessary so that the net amount
received by the Administrative Agent or such Bank with respect to such payment,
after withholding or deducting all Taxes required to be withheld or deducted, is
equal to the full amount payable under this Agreement.
(b) Limitations. Notwithstanding anything to the contrary contained
herein, the Obligors shall not be required to pay any additional amount in
respect of withholding of United States Federal income taxes pursuant to this
Section 4.07 to any Bank except to the extent (A) such Taxes are required to be
withheld solely as a result of (1) in the case of a person that is a Bank on the
Effective Date, a Regulatory Change enacted after the Effective Date and (2) in
the case of a Person that becomes a Bank after the Effective Date, a Regulatory
Change enacted after such Person becomes a Bank, and (B) such Bank has not
failed to submit any form or certificate that it is entitled to so submit under
applicable law.
(c) Exemption from U.S. Withholding Taxes. There shall be submitted to
the Obligors' Representative and the Administrative Agent, (A) on or before the
first date that interest or fees are payable to such Bank under this Agreement,
(1) if at the time the same are applicable, (aa) by each Bank that is not a
United States Person, two duly completed and signed copies of Internal Revenue
Service Form 1001 or 4224 (or any successor form to the applicable form), in
either case entitling such Bank to a complete exemption from withholding of any
United States federal income taxes on all amounts to be received by such Bank
under this Agreement, or (bb) by each Bank that is a Non-US Bank, (x) a duly
completed Internal Revenue Service Form W-8 (or any successor form to such form)
and (y) a certification in the form of Schedule 4.07(c) that such Bank is a
Non-US Bank or (2) if at the time any of the foregoing are inapplicable, duly
completed and signed copies of such form, if any, as entitles such Bank to
exemption from withholding of United States federal income taxes to the maximum
extent to which such Bank is then entitled under applicable law, and (B) from
time to time thereafter, prior to the expiration or obsolescence of any
previously
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delivered form or upon any previously delivered form becoming inaccurate or
inapplicable, such further duly completed and signed copies of such form, if
any, as entitles such Bank to exemption from withholding of United States
federal income taxes to the maximum extent to which such Bank is then entitled
under applicable law. Each Bank shall promptly notify the Obligors'
Representative and the Administrative Agent if (A) it is required to withdraw or
cancel any form or certificate previously submitted by it or any such form or
certificate has otherwise become ineffective or inaccurate or (B) payments to it
are or will be subject to withholding of United States federal income taxes to a
greater extent than the extent to which payments to it were previously subject.
Upon the request of the Obligors' Representative or the Administrative Agent,
each Bank that is a United States Person shall from time to time submit to the
Obligors' Representative and the Administrative Agent a certificate to the
effect that it is such a United States Person and a duly completed Internal
Revenue Service Form W-9 (or any successor form to such form).
ARTICLE V
YIELD PROTECTION AND ILLEGALITY
Section 5.01 Additional Costs in Respect of Loans.
(a) The Obligors shall pay to the Administrative Agent for the account
of each Bank from time to time such amounts as such Bank may determine to be
necessary to compensate it for any costs incurred by such Bank which such Bank
determines are attributable to its making or maintaining any Eurodollar Loans
hereunder or its commitment to make such Eurodollar Loans hereunder, or any
reduction in any amount receivable by such Bank hereunder in respect of such
Eurodollar Loans or such obligation (such increases in costs and reductions in
amounts receivable being herein called "Additional Costs"), resulting from any
Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to such Bank
under this Agreement or its Note in respect of such Eurodollar Loans (other than
taxes imposed on the overall net income of such Bank or of its Applicable
Lending Office for such Eurodollar Loans by the jurisdiction in which such Bank
has its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit, minimum capital,
capital ratio or similar requirements relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of, such Bank
(including such Eurodollar Loans or any deposits referred to in the definition
of "Eurodollar Base Rate" in Section 1.01 hereof), or any commitments of such
Bank; or
(iii) imposes any other condition affecting this Agreement or the
Commitment of such Bank (or any of such extensions of credit or liabilities).
Each Bank will notify the Obligors' Representative through the Administrative
Agent of any event which will entitle such Bank to compensation pursuant to this
Section 5.01(a) as promptly as practicable after it obtains knowledge thereof
and determines to request such compensation, and (if so requested by the
Obligors' Representative through the Administrative Agent) will
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designate a different Applicable Lending Office for the Loans of such Bank
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole opinion of such Bank,
be disadvantageous to such Bank, provided that no Obligor shall be obligated to
compensate any Bank under this Section 5.01(a) for any Additional Costs incurred
more than six months prior to the date the respective Bank requests such
compensation from the Obligors, except for periods preceding such date but which
are after the date such Bank notified the Obligors' Representative of the
possibility that such Additional Costs might be incurred as a result of the
respective Regulatory Change. Each Bank will furnish the Obligors'
Representative with a statement setting forth the basis and amount of each
request by such Bank for compensation under this Section 5.01(a). If any Bank
requests compensation from the Obligors under this Section 5.01(a), the
Obligors' Representative may, by notice to such Bank through the Administrative
Agent, require that such Bank's Loans of the type with respect to which such
compensation is requested be converted into Base Rate Loans in accordance with
Section 5.04 hereof.
(b) Without limiting the effect of the foregoing provisions of this
Section 5.01, in the event that, by reason of any Regulatory Change, any Bank
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Bank which includes deposits by reference to which the interest rate on any
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank which includes any Eurodollar
Loans or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Bank so elects by
notice to the Obligors' Representative (with a copy to the Administrative
Agent), the obligation of such Bank to make, and to convert Loans of any other
type into, Loans of such type hereunder shall be suspended until the date such
Regulatory Change ceases to be in effect.
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Obligors shall pay directly to each
Bank from time to time on request such amounts as such Bank may determine to be
necessary to compensate such Bank for Capital Maintenance Costs with respect to
its Loans or Commitment (such compensation to include, without limitation, an
amount equal to any reduction of the rate of return on assets or equity of such
Bank to a level below that which such Bank could have achieved but for such law,
regulation, interpretation, directive or request). Each Bank will notify the
Obligors' Representative that it is entitled to compensation pursuant to this
Section 5.01(c) as promptly as practicable after it determines to request such
compensation, provided that no Obligor shall be obligated to compensate any Bank
under this Section 5.01(c) for any such costs incurred more than six months
prior to the date the respective Bank requests such compensation from the
Obligors, except for periods preceding such date but which are after the date
such Bank notified the Obligors' Representative of the possibility that such
costs might be incurred.
(d) Determinations by any Bank for purposes of this Section 5.01 of the
effect of any Regulatory Change on its costs of making or maintaining Loans or
maintaining its Commitment or on amounts receivable by it in respect of Loans or
such Commitment, and of the additional amounts required to compensate such Bank
in respect of any Additional Costs, shall be conclusive, provided that such
determinations are made on a reasonable basis.
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Section 5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if, with respect to any Eurodollar Loans:
(a) the Administrative Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits referred
to in the definition of "Eurodollar Base Rate" in Section 1.01 hereof are not
being provided in the relevant amounts or for the relevant maturities for
purposes of determining the rate of interest for such Loans as provided in this
Agreement; or
(b) the Majority Banks determine (which determination shall be
conclusive) and notify the Administrative Agent that the relevant rates of
interest referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof upon the basis of which the rates of interest for such Loans are to be
determined do not adequately cover the cost to such Banks of making or
maintaining such Loans;
then the Administrative Agent shall promptly notify the Obligors' Representative
and each Bank thereof, and so long as such condition remains in effect, the
Banks shall be under no obligation to make Eurodollar Loans of the affected
type.
Section 5.03 Illegality. Notwithstanding any other provision of this
Agreement to the contrary, in the event that it becomes unlawful for any Bank or
its Applicable Lending Office to (a) honor its obligation to make Eurodollar
Loans hereunder, or (b) maintain Eurodollar Loans hereunder, then such Bank
shall promptly notify the Obligors' Representative thereof through the
Administrative Agent (which notice shall include a statement explaining the
nature of such unlawfulness) and such Bank's obligation to make Eurodollar Loans
shall be suspended until such time as such Bank may again make and maintain
Eurodollar Loans and such Bank's outstanding Eurodollar Loans shall be converted
into Base Rate Loans in accordance with Section 5.04 hereof.
Section 5.04 Certain Conversions of Loans Pursuant to Section 5.01 or
5.03. If the obligation of any Bank to make any type of Eurodollar Loans shall
be suspended pursuant to Section 5.01 or 5.03 hereof (Loans of such type being
herein called "Affected Loans" and such type being herein called the "Affected
Type"), all Loans which would otherwise be made by such Bank as Loans of the
Affected Type shall be made instead as Base Rate Loans (and, if an event
referred to in Section 5.01 or 5.03 hereof has occurred and such Bank determines
that it is required to convert such Loans, then, by notice to the Obligors'
Representative with a copy to the Administrative Agent, all Affected Loans of
such Bank then outstanding shall be automatically converted into Base Rate Loans
on the date specified by such Bank in such notice) and, to the extent that
Affected Loans are so made as (or converted into) Base Rate Loans, all payments
of principal which would otherwise be applied to such Bank's Affected Loans
shall be applied instead to its Base Rate Loans.
Section 5.05 Compensation. (a) The Obligors shall pay to the
Administrative Agent for the account of each Bank, upon the request of such Bank
through the Administrative Agent, such amount or amounts as shall be sufficient
(in the reasonable opinion of such Bank) to compensate it for any loss, costs or
expense incurred by it as a result of:
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(i) any payment, prepayment or conversion of a Eurodollar Loan made
by such Bank for any reason (including, without limitation, the acceleration of
the Loans pursuant to Article X hereof) on a date other than the last day of an
Interest Period for such Loan; or
(ii) any failure by any Obligor for any reason (including, without
limitation, the failure of any of the conditions precedent specified in Article
VII hereof to be satisfied) to borrow or convert a Eurodollar Loan to be made by
such Bank on the date for such borrowing specified in the relevant notice of
borrowing under Section 2.02 hereof.
(b) Such compensation shall include Funding Costs in the case of any
payment, prepayment or conversion of, or failure to borrow or convert, any Loan
made or to be made as a Eurodollar Loan.
Section 5.06 Replacement of Banks. If any Bank requests compensation
pursuant to Section 5.01, or such Bank's obligation to make or continue, or to
convert Loans of any other type into, any type of Eurodollar Loan shall be
suspended pursuant to Section 5.02 or 5.03, or if an event occurs that entitles
such Bank to make a claim pursuant to Section 4.07, the Obligors'
Representative, upon three Business Days' notice to the Administrative Agent and
such Bank, may require that such Bank transfer all of its right, title and
interest under this Agreement and such Bank's Notes to any bank or financial
institution identified by the Obligors' Representative with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld), such
assignment to be made pursuant to an Assignment and Acceptance Agreement
substantially in the form of Exhibit H hereto (an "Assignment and Acceptance")
(a) if such proposed transferee agrees to assume all of the obligations of such
Bank for consideration equal to the outstanding principal amount of such Bank's
Loans, together with interest thereon to the date of such transfer, and
satisfactory arrangements are made for payment to such Bank of all other amounts
payable hereunder to such Bank on or prior to the date of such transfer
(including the amounts so requested pursuant to Section 5.01 or so entitled to
be claimed pursuant to Section 4.07, any fees accrued hereunder and any amounts
that would be payable under Section 5.05 as if all of such Bank's Loans were
being prepaid in full on such date) and (b) if such Bank being replaced has
requested compensation pursuant to Section 5.01 or is entitled to make a claim
pursuant to Section 4.07, such proposed transferee's aggregate requested
compensation, if any, pursuant to Section 5.01, or the amounts, if any, entitled
to be claimed by such proposed transferee pursuant to Section 4.07, with respect
to such replaced Bank's Loans would be lower than that of the Bank replaced.
Without prejudice to the survival of any other agreement of the Obligors
hereunder, the agreements of the Obligors contained in Sections 4.07, 5.01 and
12.03 (without duplication of any payments made to such Bank by the Obligors or
the proposed transferee) shall survive for the benefit of any Bank replaced
under this Section 5.06 with respect to the time prior to such replacement.
ARTICLE VI
GUARANTEE
(a) Each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to the Banks and the Administrative Agent and their
respective successors and assigns and the subsequent holders of the Notes,
irrespective of the validity and enforceability of this Agreement
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or the Notes or the obligations of the Obligors or any of the other Guarantors
hereunder or thereunder, or any other circumstance that might otherwise affect
the liability of a guarantor, that: (i) the principal of and interest on the
Loans and the Notes and all other obligations of the Obligors and the other
Guarantors to the Banks or the Administrative Agent under this Agreement and the
Notes will be promptly paid in full when due, whether at stated maturity, by
acceleration or otherwise, in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, the same will be promptly paid in full when due in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed for whatever reason, the Guarantors will be obligated, jointly and
severally, to pay the same immediately.
(b) Each of the Guarantors hereby waives notice of, and consents to,
any extensions of time of payment, renewals, or other indulgence from time to
time granted by any of the Banks or the Administrative Agent in respect of the
Notes or this Agreement. Each of the Guarantors hereby releases the Obligors
from all, and agrees not to assert or enforce (whether by or in a legal or
equitable proceeding or otherwise) any, "claims" (as defined in section 101(5)
of the Bankruptcy Code) against the Obligors, whether arising under applicable
law or otherwise, to which such Guarantors are or would be entitled by virtue of
their obligations hereunder or any payment made pursuant hereto, including any
such claims to which such Guarantors may be entitled as a result of any right of
subrogation, exoneration or reimbursement in each case to the extent, but only
to the extent, that such Guarantor would be deemed a "creditor" of the Obligors
for purposes of Section 547 of the Bankruptcy Code solely by reason of such
Guarantor's holding or asserting such claim. To the extent not released by the
Guarantors under this Article VI, each of the Guarantors agrees that it shall
not be entitled to any right of subrogation, exoneration, reimbursement or
contribution in respect of any obligations guaranteed hereby until payment in
full of all the Obligations. With respect to the Notes and this Agreement, each
of the Guarantors hereby waives presentment, protest, demand of payment, notice
of dishonor and all other notices and demands whatsoever. Each of the Guarantors
further agrees that, as between such Guarantor, on the one hand, and the
Administrative Agent and the Banks, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 10.01
hereof for the purposes of this guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
such obligations as provided in Section 10.01 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by each of the
Guarantors for the purpose of this guarantee. The obligations of each of the
Guarantors under this Article VI shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Obligors is
rescinded or must be otherwise restored by any holder of any of the obligations
guaranteed hereunder, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise and each of the Guarantors agrees that it will
indemnify the Banks and the Administrative Agent on demand for reasonable costs
and expenses (including, without limitation, fees of counsel) incurred by the
Banks or the Administrative Agent in connection with such rescission or
restoration.
(c) It is the intention of the Guarantors, the Banks and the Obligors
that the obligations of each Guarantor hereunder shall be in, but not in excess
of, the maximum amount permitted by applicable law. To that end, but only to the
extent such obligations would
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otherwise be avoidable, the obligations of each Guarantor hereunder shall be
limited to the maximum amount that, after giving effect to the incurrence
thereof, would not render such Guarantor insolvent or unable to make payments in
respect of any of its indebtedness as such indebtedness matures or leave such
Guarantor with an unreasonably small capital. The need for any such limitation
shall be determined, and any such needed limitation shall be effective, at the
time or times that such Guarantor is deemed, under applicable law, to incur the
Obligations hereunder. Any such limitation shall be apportioned amongst the
Obligations pro rata in accordance with the respective amounts thereof. This
paragraph is intended solely to preserve the rights of the Banks under this
Agreement to the maximum extent permitted by applicable law, and neither the
Guarantors, the Obligors nor any other Person shall have any right under this
paragraph that it would not otherwise have under applicable law. The Obligors
and each Guarantor agree not to commence any proceeding or action seeking to
limit the amount of the obligation of such Guarantor under this Article VI by
reason of this paragraph. For the purposes of this paragraph, "insolvency",
"unreasonably small capital" and "unable to make payments in respect of any of
its indebtedness as such indebtedness matures" shall be determined in accordance
with applicable law.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01 Initial Loan. The obligation of each Bank to make its
initial Loan hereunder is subject to the satisfaction of the following
conditions precedent on or prior to the date of such initial Loan but in any
event no later than March 31, 1998:
(a) Execution and Notes. This Agreement shall have been duly executed
and delivered by each of the Obligors, the Guarantors in existence on the
Effective Date, the Banks and the Administrative Agent, and the Obligors shall
have executed and delivered to each Bank its Note evidencing the Loans to be
made by such Bank hereunder.
(b) Signatures. Each of the Obligors and the Guarantors in existence on
the Effective Date shall have certified to the Administrative Agent (with copies
to be provided for each Bank) the name and signature of each of the persons
authorized to sign on its respective behalf such of this Agreement and the Notes
to which it is a party and to borrow under this Agreement. The Banks may
conclusively rely on such certifications until they receive notice in writing
from the applicable Obligor or Guarantor to the contrary.
(c) Proof of Action. The Administrative Agent shall have received
certified copies of all necessary action taken by each of the Obligors and the
Guarantors in existence on the Effective Date to authorize the execution,
delivery and performance of such of this Agreement and the Notes to which it is
a party.
(d) Opinions of Counsel to the Obligors. The Administrative Agent shall
have received opinions of:
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(i) Robert Lemle, Esq., General Counsel to the Obligors,
substantially in the form of Exhibit E hereto;
(ii) Sullivan & Cromwell, special New York counsel to the
Obligors, substantially in the form of Exhibit F(1) hereto;
(iii) Schenk, Price, Smith & King, special New Jersey counsel
to the Obligors, substantially in the form of Exhibit F(2) hereto; and
(iv) Piper & Marbury, special FCC counsel to the Obligors,
substantially in the form of Exhibit F(3) hereto;
and covering such other matters as any Bank or Banks or special New York counsel
to the Administrative Agent, Winthrop, Stimson, Putnam & Roberts, may reasonably
request (and for purposes of such opinions such counsel may rely upon opinions
of counsel in other jurisdictions, provided that such other counsel are
satisfactory to special counsel to the Administrative Agent and such other
opinions state that the Banks are entitled to rely thereon).
(e) Opinion of Banks' Counsel. Each Bank shall have received an opinion
of Winthrop, Stimson, Putnam & Roberts, special New York counsel to the
Administrative Agent, substantially in the form of Exhibit G hereto and covering
such other matters as any Bank or Banks may reasonably request.
(f) TCI Acquisition Documents. The Administrative Agent shall have
received certified copies of the TCI Acquisition Documents.
(g) Fees. The Obligors shall have paid to the Administrative Agent and
the Managing Agents the fees payable to such Persons as provided in the separate
fee letters dated the Effective Date.
(h) Compliance Certificate. The Banks shall have received a Compliance
Certificate, dated the requested date for the making of such Loan, showing that,
after giving pro forma effect to the making of such Loan and the application of
the proceeds thereof and the completion of the TCI Acquisition, the Obligors and
their Subsidiaries are in compliance with the provisions of this Agreement as of
the Effective Date;
(i) Other Documents. Such other documents and papers relating to the
documents referred to herein and the transactions contemplated hereby as any
Bank or special counsel to the Banks shall reasonably require shall have been
received.
(j) Specified Existing Indebtedness. The Administrative Agent shall be
reasonably satisfied that, after giving effect to such initial Loan, (1) all
outstanding loans and other amounts owing under all Specified Existing
Indebtedness shall have been repaid in full, (2) all commitments for the making
of loans or other advances under any document or instrument relating to such
Specified Existing Indebtedness shall have terminated, and (3) all Liens, if
any, securing any Specified Existing Indebtedness shall have been terminated and
released (and
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arrangements satisfactory to the Administrative Agent shall have been made for
the filing of all termination statements and other filings necessary to effect
such termination and release).
(k) BPU Approvals. The Obligors shall have obtained the approval of the
BPU with respect to this Agreement and the uses of the proceeds of the Loans
specified in Section 2.08 hereof.
(l) TCI Acquisition. The TCI Acquisition shall have been consummated
(or shall be consummated substantially concurrently with the funding of such
Loan to the Obligors) in accordance with the terms of the TCI Acquisition
Documents (as the same may have been modified by any waivers of the terms and
conditions thereof which, individually and in the aggregate, do not and, insofar
as can reasonably be foreseen, will not have a Materially Adverse Effect) and
the Administrative Agent shall have received a certificate of a senior officer
of the Obligors to such effect.
Section 7.02 Each Loan. The obligation of each Bank to make each of its
Loans (including its initial Loan) hereunder (which shall not include any
conversion or continuation of any outstanding Loan) is subject to the additional
conditions precedent that:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties in Article VIII hereof shall be
true on and as of the date of the making of, and after giving effect to, such
Loan with the same force and effect as if made on and as of such date, except to
the extent that such representations and warranties expressly relate to an
earlier date; and
(c) to the extent requested by the Administrative Agent or any Bank, a
senior executive of the Obligors shall have certified compliance with paragraphs
(a) and (b) above to the Administrative Agent.
Each of the Obligors shall be deemed to have made a representation and
warranty hereunder as of the time of the making of such Loans that the
conditions specified in such clauses have been fulfilled as of such time.
ARTICLE VIII
REPRESENTATIONS
Each of the Obligors and the Guarantors represents, warrants and
covenants as follows:
Section 8.01 Existence and Power. Each of the Obligors and their
Subsidiaries is a limited or general partnership or corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and is duly qualified to transact business and is in good standing
in all jurisdictions in which such qualification is necessary in view of the
properties and assets owned and presently intended to be owned and the business
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transacted and presently intended to be transacted by it except for
qualifications the lack of which, singly or in the aggregate, have not had and
are not likely to have a Materially Adverse Effect, and each of the Obligors and
their Subsidiaries has full power, authority and legal right to make and perform
this Agreement and the Notes.
Section 8.02 Subsidiaries. As at the Effective Date and the date of the
initial Loan hereunder, none of the Obligors has any Subsidiaries other than
those set forth on Schedule 8.02.
Section 8.03 Authority; No Conflict. The making and performance by each
of the Obligors and their Subsidiaries of such of this Agreement and the Notes
to which it is a party or signatory, and each extension of credit hereunder,
have been duly authorized by all necessary action and do not and will not: (i)
subject to the consummation of the action described in Section 8.12 hereof,
violate any provision of any laws, orders, rules or regulations presently in
effect (other than violations that, singly or in the aggregate, have not had and
are not likely to have a Materially Adverse Effect), or any provision of any of
the Obligors' or their Subsidiaries' partnership agreement, charter or by-laws
presently in effect; or (ii) result in the breach of, or constitute a default or
require any consent (except for the consents described on Schedule 8.03 hereto,
each of which has been duly obtained) under, any existing indenture or other
agreement or instrument to which any Obligor or any Subsidiary of any Obligor is
a party or its properties may be bound or affected (other than any breach,
default or required consent that, singly or in the aggregate, have not had and
are not likely to have a Materially Adverse Effect); or (iii) result in, or
require, the creation or imposition of any Lien upon or with respect to any of
the properties or assets now owned or hereafter acquired by any Obligor or any
Subsidiary of any Obligor.
Section 8.04 Financial Condition. The Obligors have furnished to each
Bank:
(a) the respective combined balance sheets of the TKR New Jersey/New
York Systems and the TCI New Jersey and New York Systems, in each case as at
December 31, 1995 and as at December 31, 1996, and the respective related
combined statements of operations or earnings, Parent's Investment or Combined
Deficit and cash flows for the fiscal years ended on said dates, said financial
statements having been certified by KPMG Peat Marwick; and
(b) the pro forma unaudited combined and consolidated balance sheets of
the Obligors and their respective consolidated Subsidiaries, as at September 30,
1997, and the related unaudited combined and consolidated statements of
operations, stockholders' equity (deficiency) and cash flows for the nine months
ended on said date.
All financial statements referred to above are complete and correct in
all material respects (subject, in the case of the unaudited financial
statements referred to above, to year-end and audit adjustments) and fairly
present the financial condition of the respective entity or groups of entities
which is or are the subject of such financial statements (as stated above), on a
combined and consolidated basis to the extent so indicated above, as at the
respective dates of the balance sheets included in such financial statements and
the results of operations of such entity or groups of entities for the
respective periods ended on said dates. None of the Obligors and their
Subsidiaries had on any of said dates any material contingent liabilities,
liabilities for Taxes, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments or operations which are
substantial in amount, except as referred to or
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reflected or provided for in said financial statements as at said respective
dates or as disclosed to the Banks in writing prior to the date hereof. Except
as disclosed to the Banks in writing prior to the date hereof, since December
31, 1996 there has been no material adverse change in the financial condition or
the businesses or operations of the Obligors and their Subsidiaries taken as a
whole on a combined and consolidated basis from that shown by the balance sheets
as at December 31, 1996 included in said financial statements for the Obligors
and their respective Subsidiaries (it being understood that for purposes of this
sentence the Obligors and their respective Subsidiaries shall be deemed to have
owned all of the assets acquired by the Obligors and their respective
Subsidiaries pursuant to the TCI Acquisition for all periods covered by said
balance sheets until and including the Effective Date).
Section 8.05 Litigation; Etc. Except as disclosed to the Banks on
Schedule 8.05, there are no lawsuits or other proceedings pending, or to the
knowledge of any Obligor or any Subsidiary of any Obligor threatened, against
any Obligor or any Subsidiary of any Obligor or any of their respective
properties or assets, before any court or arbitrator or by or before any
governmental commission, bureau or other regulatory authority that, singly or in
the aggregate, could reasonably be expected to have a Materially Adverse Effect.
None of the Obligors and their Subsidiaries are in default under or in violation
of or with respect to any laws or orders, or any material provision of any rules
or regulations, or any writ, injunction or decree of any court, arbitrator,
governmental commission, bureau or other regulatory authority, or any Franchise,
except for minor defaults which, if continued unremedied, are not likely to have
a Materially Adverse Effect.
Section 8.06. Titles and Liens. Except as set forth on Schedule 9.12,
each of the Obligors and their Subsidiaries has good title to its properties and
assets, free and clear of all Liens except those permitted by Section 9.12
hereof.
Section 8.07 Regulations G and U. None of the proceeds of the Loans
shall be used to purchase or carry, or to reduce or retire or refinance any
credit incurred to purchase or carry, any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock. If requested
by any Bank, the Obligors will furnish to the Banks statements in conformity
with the requirements of Regulations G and U.
Section 8.08. Taxes. Each of the Obligors and their Subsidiaries has
filed all material tax returns which are required to be filed under any law
applicable thereto except such returns as to which the failure to file, singly
or in the aggregate, has not had and will not have a Materially Adverse Effect,
and has paid, or made provision for the payment of, all Taxes shown to be due
pursuant to said returns or pursuant to any assessment received by any Obligor
or any Subsidiary of any Obligor, except such Taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided or
as to which the failure to pay, singly or in the aggregate, has not had and is
not likely to have a Materially Adverse Effect.
Section 8.09 Other Credit Agreements. Schedule 9.10 (Existing
Indebtedness), Schedule 9.11 (Existing Guarantees) and Schedule 9.12 (Existing
Liens) contain complete and correct lists, as at the date hereof and the date of
the initial Loan hereunder, of all credit agreements, indentures, purchase
agreements, obligations in respect of letters of credit, guarantees and other
instruments presently in effect (including Capital Lease Obligations)
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providing for, evidencing, securing or otherwise relating to any Indebtedness of
the Obligors and their Subsidiaries in a principal or face amount equal to
$150,000 or more and such lists correctly set forth the names of the debtor or
lessee and creditor or lessor with respect to the Indebtedness outstanding or to
be outstanding thereunder, the rate of interest or rentals, a description of any
security given or to be given therefor, and the maturity or maturities or
expiration date or dates thereof.
Section 8.10 Full Disclosure. None of the financial statements referred
to in Section 8.04 hereof or any written statements delivered pursuant to
Section 8.02, 8.04 or 8.15 (each of which has heretofore been furnished to each
Bank) contains, as at the date hereof or the date of the initial Loan, any
untrue statement of a material fact nor do such financial statements and such
written statements, taken as a whole, omit to state a material fact necessary to
make the statements contained therein not misleading.
Section 8.11 No Default. None of the Obligors and their Subsidiaries is
in default in the payment or performance or observance of any contract,
agreement or other instrument to which it is a party or by which it or its
properties or assets may be affected or bound, which default, either alone or in
conjunction with all other such defaults, has had or is likely to have a
Materially Adverse Effect.
Section 8.12 Approval of Regulatory Authorities. Except as set forth on
Schedule 8.03 hereto and other than the approvals of the BPU referred to in
Section 7.01(k) hereof, no approval or consent of, or filing or registration
with, any Federal, state or local commission or other regulatory authority is
required in connection with the execution, delivery and performance by the
Obligors and their Subsidiaries of such of this Agreement and the Notes to which
they are a party. All such described action required to be taken as a condition
to the execution and delivery of such of this Agreement and the Notes to which
the Obligors and their Subsidiaries are a party has been duly taken by all such
commissions and authorities or other Persons, as the case may be, and all such
action required to be taken as a condition to the initial Loan hereunder has
been or will be duly taken prior to such initial Loans.
Section 8.13 Binding Agreements. This Agreement constitutes, and the
Notes when executed and delivered will constitute, the legal, valid and binding
obligations of each of the Obligors and their Subsidiaries that is a party
thereto, enforceable in accordance with their respective terms (except for
limitations on enforceability under bankruptcy, reorganization, insolvency and
other similar laws affecting creditors' rights generally and limitations on the
availability of the remedy of specific performance imposed by the application of
general equitable principles).
Section 8.14 Franchises. Schedule 8.14 hereto contains a complete and
correct list, as of the date hereof and the date of the initial Loan hereunder,
of all of the Franchises granted to the Obligors and their Subsidiaries, in each
case together with the expiration date thereof, or for which applications have
been made, or are planned to be made, by any of the Obligors or any of their
Subsidiaries.
Section 8.15 Collective Bargaining Agreements. Except as disclosed to
the Banks in writing prior to the Effective Date, there are no collective
bargaining agreements between any of
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the Obligors or any of their Subsidiaries and any trade or labor union or other
employee collective bargaining agent.
Section 8.16 Investments. Schedule 9.15 hereto contains a complete and
correct list, as at the date hereof, of all Investments of the Obligors and
their Subsidiaries in excess of $350,000, showing the respective amounts of each
such Investment and the respective entity in which each such Investment has been
made.
Section 8.17 TCI Acquisition. The TCI Acquisition has been consummated
(or shall be consummated substantially concurrently with the funding of the
initial Loans to the Obligors) in accordance with the terms of the TCI
Acquisition Documents (as the same may have been modified by any waivers of the
terms and conditions thereof which, individually and in the aggregate, do not
and, insofar as can reasonably be foreseen, will not have a Materially Adverse
Effect).
ARTICLE IX
PARTICULAR COVENANTS OF THE OBLIGORS AND THEIR SUBSIDIARIES
From the Effective Date and so long as the Commitments of the Banks
shall be in effect and until the payment in full of all Obligations hereunder
and the performance of all other obligations of the Obligors and their
Subsidiaries under this Agreement, each of the Obligors and their Subsidiaries
agrees that, unless the Majority Banks shall otherwise consent in writing:
A. Informational Covenants:
Section 9.01 Financial Statements and Other Information. The Obligors
and their Subsidiaries will deliver to each Bank:
(a) As soon as available and in any event within 60 days after the end
of each of the first three Quarters of each fiscal year of the Obligors: (i)
combined and consolidated statements of operations and reconciliation of capital
amounts and sources and applications of funds of the Obligors and their
respective consolidated Subsidiaries, taken together, for such Quarter and for
the period from the beginning of such fiscal year to the end of such Quarter and
(ii) the related combined and consolidated balance sheets of the Obligors and
their respective consolidated Subsidiaries, taken together, as at the end of
such Quarter (which financial statements shall set forth in comparative form the
corresponding figures as at the end of and for the corresponding Quarter in the
preceding fiscal year), all in reasonable detail and accompanied by a
certificate in the form of Exhibit D(1) hereto of a senior financial executive
of the Obligors certifying such financial statements, subject, however, to
year-end and audit adjustments, which certificate shall include a statement that
the senior financial executive signing the same has no knowledge, except as
specifically stated, that any Default has occurred and is continuing.
(b) As soon as available and in any event within 120 days after the end
of each fiscal year of the Obligors: (i) combined and consolidated statements of
operations and reconciliation of capital accounts and sources and applications
of funds of the Obligors and their respective
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consolidated Subsidiaries, taken together, for such fiscal year and (ii) the
related combined and consolidated balance sheets of the Obligors and their
respective consolidated Subsidiaries, taken together, as at the end of such
fiscal year (which financial statements shall set forth in comparative form the
corresponding figures as at the end of and for the preceding fiscal year), all
in reasonable detail and accompanied by (x) an opinion of KPMG Peat Marwick or
other independent certified public accountants of recognized standing selected
by the Obligors and reasonably acceptable to the Majority Banks as to said
combined and consolidated financial statements and a certificate of such
accountants stating that, in making the examination necessary for said opinion,
they obtained no knowledge, except as specifically stated, of any failure by any
Obligor or any Subsidiary of any Obligor to perform or observe any of its
covenants relating to financial matters in this Agreement, and (y) a certificate
in the form of Exhibit D(2) hereto of a senior financial executive of the
Obligors stating that such financial statements are correct and complete and
fairly present the financial condition and results of operations of the
respective entities covered thereby as at the end of and for such fiscal year
and that the executive signing the same has no knowledge, except as specifically
stated, that any Default has occurred and is continuing.
(c) Promptly after their becoming available, copies of all financial
statements and reports which any Obligor or any Subsidiary of any Obligor shall
have sent its shareholders generally (other than tax returns unless specifically
requested under clause (h) of this Section 9.01), and copies of all regular and
periodic reports, if any, which any Obligor or any Subsidiary of any Obligor
shall have filed with the Securities and Exchange Commission, or any
governmental agency substituted therefor, or with any national securities
exchange, or with the Federal Communications Commission, or any governmental
agency substituted therefor.
(d) Within 60 days after the end of each of the first three Quarters of
each year, and within 120 days after the end of each fiscal year of the
Obligors, a Compliance Certificate, duly completed with respect to such Quarter
or fiscal year, as the case may be.
(e) Within 35 days after the end of each calendar month (beginning with
March, 1998), a Subscribers' Certificate, duly completed with respect to such
month.
(f) Promptly, notice of the termination, cancellation, nonrenewal or
other loss of any Franchise for a cable television system or systems that has
had or is likely to have, either alone or in conjunction with all other such
losses, a Materially Adverse Effect, the filing of a competing application in
connection with any proceeding for renewal of any such Franchise and of any
proceeding which involves a material risk of the termination, cancellation,
nonrenewal or other loss of any such Franchise.
(g) As soon as possible and in any event within ten days after any
senior executive of any Obligor or any Subsidiary of any Obligor or, to the
extent applicable, of any general partner of any Obligor or any Subsidiary of
any Obligor shall have obtained knowledge of the occurrence of a Default, a
statement describing such Default and the action which is proposed to be taken
with respect thereto.
(h) From time to time, with reasonable promptness, such further
information regarding the business, affairs and financial condition of any
Obligor or any Subsidiary of any
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Obligor or any of their respective Affiliates or other affiliates as any Bank
may reasonably request.
B. Affirmative Covenants:
Section 9.02 Taxes and Claims. Each of the Obligors and their
Subsidiaries will pay and discharge all Taxes imposed upon it or upon its income
or profits, or upon any properties or assets belonging to it, and all fees or
other charges for Franchises, prior to the date on which penalties attach
thereto, and all other lawful claims which, if unpaid, might become a Lien
(other than Permitted Liens) upon the property of any Obligor or any Subsidiary
of any Obligor or result in the loss of a Franchise, provided that none of the
Obligors and their Subsidiaries shall be required to pay any such Tax, fee or
other charge the payment of which is being contested in good faith and by proper
proceedings if it maintains adequate reserves in accordance with generally
accepted accounting principles with respect thereto.
Section 9.03 Insurance. Each of the Obligors and their Subsidiaries
will maintain insurance issued by responsible companies in such amounts and
against such risks as is usually carried by owners of similar businesses and
properties in the same general areas in which such Obligor or such Subsidiary
operates. The Obligors and their Subsidiaries will furnish to any Bank, upon the
request of such Bank from time to time, full information as to the insurance
maintained in accordance with this Section 9.03.
Section 9.04 Maintenance of Existence; Conduct of Business. Each of the
Obligors and their Subsidiaries will preserve and maintain its existence and all
of its rights, privileges and franchises (including Franchises), except (i)
where a failure to do so, singly or in the aggregate, is not likely to have a
Materially Adverse Effect or (ii) pursuant to any merger permitted by Section
9.14(a)(i).
Section 9.05 Maintenance of and Access to Properties. Each of the
Obligors and their Subsidiaries will keep all of its properties and assets
necessary in its business in good working order and condition, ordinary wear and
tear excepted, and will permit representatives of the respective Banks to
inspect such properties, and to examine and make extracts from its books and
records, during normal business hours.
Section 9.06 Compliance with Applicable Laws. Each of the Obligors and
their Subsidiaries will comply with the requirements of all applicable,
including but not limited to environmental, laws, rules, regulations and orders
of any governmental body or regulatory authority a breach of which is likely to
have, singly or in the aggregate, a Materially Adverse Effect, except where
contested in good faith and by proper proceedings if it maintains adequate
reserves in accordance with generally accepted accounting principles with
respect thereto.
Section 9.07 Litigation. Each of the Obligors and their Subsidiaries
will promptly give to the Administrative Agent notice in writing (and the
Administrative Agent will notify each Bank) of all litigation and of all
proceedings before any courts, arbitrators or governmental or regulatory
agencies against it or, to its knowledge, otherwise affecting it or any of its
respective properties or assets, except litigation or proceedings which, if
adversely determined, is not likely to, singly or in the aggregate, have a
Materially Adverse Effect. Following the initial notice of
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each such litigation or proceeding, supplementary notices of all material
developments in respect thereof shall be given from time to time in like manner.
Section 9.08 New Subsidiaries. Promptly upon the acquisition or
formation of any New Subsidiary, the Obligors and their Subsidiaries will cause
(by documentation satisfactory to the Administrative Agent) such New Subsidiary
to undertake all of the obligations of a "Guarantor" under this Agreement. Each
such New Subsidiary shall thereafter be a "Guarantor" for all purposes of this
Agreement.
Section 9.09 Franchises. The Obligors and their Subsidiaries will
comply with all of their obligations under their respective Franchises, except
for failures to comply which, singly or in the aggregate, are not likely to have
a Materially Adverse Effect.
C. Negative Covenants:
Section 9.10 Indebtedness. None of the Obligors and their Subsidiaries
will create, incur or suffer to exist any Indebtedness except:
(i) Indebtedness hereunder;
(ii) short-term Indebtedness incurred for working capital purposes
from one or more of the Banks up to but not exceeding $10,000,000 in aggregate
principal amount at any one time outstanding;
(iii) obligations under or in respect of Interest Swap Agreements up
to an aggregate notional principal amount not to exceed at any time the Total
Commitment at such time;
(iv) Guarantees and letters of credit permitted by Section 9.11
hereof;
(v) Indebtedness to any Obligor or any Subsidiary of any Obligor;
(vi) Indebtedness in respect of Capital Lease Obligations other than
in respect of leases of real property, so long as the aggregate principal amount
of such Indebtedness outstanding at any one time shall not exceed the sum of
$25,000,000; and
(vii) other Indebtedness issued and outstanding on the date hereof
to the extent set forth on Schedule 9.10 hereto and any renewals, extensions or
refundings thereof in a principal amount not to exceed the amount so renewed,
extended or refunded.
Section 9.11 Contingent Liabilities. None of the Obligors and their
Subsidiaries will, directly or indirectly (including, without limitation, by
means of causing a bank to open a letter of credit), guarantee, endorse,
contingently agree to purchase or to furnish funds for the payment or
maintenance of, or otherwise be or become contingently liable upon or with
respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or guarantee the payment of dividends or other
distributions upon the stock or other ownership interests of any Person, or
agree to purchase, sell or lease (as lessee or lessor) property, products,
materials, supplies or services primarily for the purpose of enabling a debtor
to make payment of
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its obligations or to assure a creditor against loss (all such transactions
being herein called "Guarantees"), except:
(i) endorsements of negotiable instruments for deposit or collection
in the ordinary course of business;
(ii) the Guarantees described in Schedule 9.11;
(iii) Guarantees by any of the Obligors or one or more of their
Subsidiaries of Indebtedness of, and other obligations (incurred in the ordinary
course of business) of, any of the Obligors or any of their Subsidiaries, but
only if such Indebtedness or obligations are permitted by this Agreement;
(iv) Capital Lease Obligations to the extent they constitute
Guarantees by reason of having been assigned by the lessor to a lender to such
lessor (provided that the obligors in respect of such Capital Lease Obligations
do not increase their liability by reason of such assignment);
(v) surety bonds in an aggregate amount at any one time not to
exceed $12,500,000;
(vi) Guarantees of Indebtedness which would constitute Investments
which are not prohibited by Section 9.15 (other than by reason of subsection
(iii) thereof);
(vii) the Guarantees in Article VI hereof; and
(viii) other Guarantees by any of the Obligors or any of their
Subsidiaries, provided that the outstanding aggregate amount of the obligations
guaranteed does not exceed $7,500,000 at any time.
Section 9.12 Liens. None of the Obligors and their Subsidiaries will
create or suffer to exist any mortgage, pledge, security interest, conditional
sale or other title retention agreement, lien, charge or encumbrance upon any of
its assets, now owned or hereafter acquired, securing any Indebtedness or other
obligation (all such security being herein called "Liens"), except:
(i) Liens on tangible personal property securing Indebtedness owed
to any of the Obligors;
(ii) Liens securing Indebtedness permitted by Section 9.10(vi)
hereof to the extent such Liens attach solely to the assets (x) subject to
Capital Leases constituting such Indebtedness or (y) acquired with the proceeds
of such Indebtedness;
(iii) Permitted Liens; and
(iv) other Liens on tangible personal property in effect on the date
hereof to the extent set forth on Schedule 9.12 hereto.
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In addition, none of the Obligors and their Subsidiaries will enter into or
permit to exist any undertaking by it or affecting any of its properties whereby
any Obligor or any Subsidiary shall agree with any Person (other than the Banks
or the Administrative Agent) not to create or suffer to exist any Liens in favor
of any other Person.
Section 9.13 Leases. None of the Obligors and their Subsidiaries will
incur, assume or have outstanding any obligation to pay rent under Leases (as
lessee, guarantor or otherwise) except:
(i) Pole Rental Leases and Leases of microwave transmission and/or
reception rights related to the operation of the Obligors and their
Subsidiaries;
(ii) obligations under Leases by one Subsidiary of any Obligor to
another Subsidiary of any Obligor; and
(iii) obligations under Leases of equipment and other real or
personal property for use in the ordinary course of its business.
Section 9.14 Mergers, Acquisitions and Dispositions, Etc. (a) None of
the Obligors and their Subsidiaries will consolidate or merge with any Person,
or sell, lease, license, assign, transfer or otherwise dispose of any part of
its business, assets or rights except:
(i) dispositions by any Obligor or any Subsidiary of any Obligor
to, or mergers or consolidations of any of the Obligors' Subsidiaries with and
into, any Obligor or any Subsidiary of any Obligor;
(ii) subject to Section 9.18 hereof, sales by any Obligor or any
Subsidiary of any Obligor to Affiliates of surplus inventory, equipment and
fixed assets originally acquired for use by the such Obligor or such Subsidiary
in its own business;
(iii) dispositions in the ordinary course of business (including,
without limitation, dispositions of obsolete or worn-out property and other
property reasonably determined by the management of the disposing entity to be
not used or useful in its business);
(iv) dispositions of any Margin Stock;
(v) the Paramus-Hillsdale Sale; and
(vi) dispositions by any Obligor or any Subsidiary of any Obligor
(including, without limitation, by merger or consolidation of any such
Subsidiary) of cable television systems or portions thereof (including any such
dispositions in connection with which cable television systems or portions
thereof are acquired in exchange for the cable television systems or portions
thereof so disposed), provided that, in the case of any such disposition:
(A) immediately prior to, and after giving effect to, such
disposition, no Default shall have occurred and be continuing;
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(B) the amount of Operating Cash Flow attributable to the
cable television systems or portions thereof to be disposed (other
than pursuant to the Paramus-Hillsdale Sale) for the twelve-month
period ending on the last day of the calendar month immediately
preceding the month in which such disposition is to occur (the "Test
Period"), together with the aggregate amount of Operating Cash Flow
for the Test Period attributable to any other cable television
systems or portions thereof so disposed (other than pursuant to the
Paramus-Hillsdale Sale) during the twelve-month period prior to the
date that such disposition is to occur, shall not exceed 35% of the
aggregate amount of Operating Cash Flow for the Test Period; and
(C) if the cable television systems or portions thereof to
be disposed of in such disposition shall have a value greater than
$5,000,000 in the aggregate, such disposition, and the amount of any
consideration to be received therefor, shall have been approved by
the Board of Directors of the applicable Obligor or the applicable
Subsidiary;
The Obligors shall furnish to the Administrative Agent prior to any
such disposition (1) a certificate of an officer of the Obligors
certifying compliance with the requirements of clauses (A), (B) and (C)
of this subparagraph (v), (2) a reasonably detailed description of such
disposition demonstrating compliance with all of the Obligors' and
their Subsidiaries' covenants and agreements under this Agreement both
before and after giving effect to such disposition, and (3) a statement
as to any reduction of the Total Commitment required by Section 2.03(b)
as a result of such disposition and the date of such reduction.
(b) None of the Obligors and their Subsidiaries will purchase or
acquire assets from, or the business or assets of, any other Person, except:
(i) the purchase of assets in the ordinary course of business as
conducted or proposed to be conducted on the Effective Date by the Obligors and
their Subsidiaries; and
(ii) the acquisition (including, without limitation, by merger or
consolidation of any Subsidiary of any Obligor) of all or any part of the
business or assets of any Person engaged in the business of developing,
constructing, owning, acquiring, altering, repairing, financing, operating,
maintaining, publishing, distributing, promoting and otherwise exploiting cable
television systems and related businesses, including, without limitation,
telecommunications services, data transmission and telephony activities,
provided that, in the case of any such acquisition:
(A) such acquisition, and the amount of consideration
therefor, shall have been approved by the Board of Directors of such
Person (if a corporation) and the Board of Directors of the
applicable Obligor or the applicable Subsidiary, provided that this
subparagraph (A) shall not apply to any such acquisition for which
the total amount of consideration paid by the Obligors and their
Subsidiaries shall not exceed $5,000,000 in the aggregate;
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(B) immediately prior to, and after giving effect to, any
such acquisition no Default shall have occurred and be continuing;
and
(C) if the assets so acquired consist of stock or other
ownership interests of any Person which is to become a Subsidiary of
any Obligor, the Obligors and their Subsidiaries shall acquire in
the aggregate not less than 90% of the issued and outstanding shares
of all classes of stock, or other ownership interests, of such
Person.
The Obligors shall furnish to the Administrative Agent prior to any
such acquisition (1) a certificate of an officer of the Obligors
certifying compliance with the requirements of clauses (A), (B) and (C)
of this subparagraph (ii) and (2) a reasonably detailed description of
such acquisition demonstrating compliance with all of the Obligors' and
their Subsidiaries' covenants and agreements under this Agreement both
before and after giving effect to such acquisition.
Section 9.15 Investments. None of the Obligors and their Subsidiaries
will make or permit to remain outstanding any advances, loans, accounts
receivable (other than accounts receivable arising in the ordinary course of
business of any Obligor or any Subsidiary of any Obligor) or other extensions of
credit (excluding, however, accrued and unpaid interest in respect of any
advance, loan or other extension of credit) or capital contributions to (by
means of transfers of property to others, or payments for property or services
for the account or use of others, or otherwise), or purchase or own any stocks,
bonds, notes, debentures or other securities (including, without limitation, any
interests in any partnership, joint venture or joint adventure) of, or any bank
accounts with, or Guarantee any Indebtedness or other obligations of, any Person
(all such transactions being herein called "Investments"), except:
(i) bank accounts with, and banker's acceptances and certificates of
deposit of, banks having a combined capital and surplus of at least
$100,000,000;
(ii) readily marketable securities issued or guaranteed by the United
States Government and commercial paper rated P-1 by the National Credit Office
of Moody's Investors Service Inc. or bearing a similar rating by another
nationally recognized rating agency;
(iii) Guarantees permitted by Section 9.11 hereof;
(iv) Investments outstanding as of the date hereof to the extent set
forth on Schedule 9.15 hereto; and
(v) other Investments made after the Effective Date so long as, in the
case of any Investment in any Person other than a Subsidiary of an Obligor, (A)
no Default shall have occurred both before and after giving effect to such
Investment and (B) in the case of any such Investment or series of related
Investments in an aggregate amount in excess of $25,000,000, the Obligors'
Representative shall have furnished to the Banks a reasonably detailed
designation of such Investment or series of Investments demonstrating compliance
with all of the Obligors' and their Subsidiaries' covenants and agreements under
this Agreement both before and after giving effect to such Investment or series
of Investments.
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Section 9.16 Restricted Payments. None of the Obligors and their
Subsidiaries will, directly or indirectly, make any Restricted Payment.
Section 9.17 Business. The Obligors and their Subsidiaries shall not
permit the portion of consolidated gross revenues of the Obligors and their
Subsidiaries derived from the business of developing, constructing, owning,
acquiring, altering, repairing, financing, operating, maintaining, publishing,
distributing, promoting and otherwise exploiting cable television systems and
related businesses, including, without limitation, telecommunications services,
data transmission and telephony activities, for any Quarter to be less than 90%
of the total consolidated gross revenues of the Obligors and their Subsidiaries
for such Quarter.
Section 9.18 Transactions with Affiliates. No Obligor or Subsidiary of
any Obligor will effect any transaction with any of its Affiliates that is not
an Obligor or a Guarantor on a basis less favorable to such Obligor or
Subsidiary than would at the time be obtainable for a comparable transaction in
arm's-length dealing with an unrelated third party.
Section 9.19 Issuance of Stock. No Obligor will permit any of its
Subsidiaries to issue any shares of stock or other ownership interests in such
Subsidiary other than to the Obligors and their Subsidiaries.
D. Financial Covenants:
Section 9.20 Operating Cash Flow to Total Interest Expense. The
Obligors and their Subsidiaries will cause, for each Quarter, the ratio of
Operating Cash Flow for the period of two Quarters ending with such Quarter to
Total Interest Expense for such period of two Quarters ending with such Quarter
to be at least 2.00 to 1.
Section 9.21 Cash Flow Ratio. The Obligors and their Subsidiaries will
not permit the Cash Flow Ratio to exceed 4.75 to 1 at any time.
ARTICLE X
DEFAULTS
Section 10.01 Events of Default. If any one of the following "Events of
Default" shall occur and be continuing, namely:
(a) Any representation or warranty in this Agreement, or in
any certificate, statement or other document furnished to the Banks or the
Administrative Agent under this Agreement (including, without limitation, any
amendment to any of the foregoing), or any certification made or deemed to have
been made by any Obligor or any Subsidiary of any Obligor to any Bank hereunder,
shall prove to have been incorrect, or shall be breached, in any material
respect, when made or deemed made; or
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(b) Default in the payment when due of any principal on any
Note, or default in the payment when due of interest on any Note or any other
amount payable to any Bank or the Administrative Agent hereunder, and the
failure to pay such interest or other amount by 11:00 a.m. on the second next
following Business Day; or
(c) Default by any Obligor or any Subsidiary of any Obligor in
the performance or observance of any of its agreements in Article IX hereof
(other than Sections 9.01, 9.02, 9.03, 9.04, 9.05, 9.06, 9.07 and 9.15 hereof
but including Section 9.01(g) hereof); or
(d) Default by any Obligor or any Subsidiary of any Obligor in
the performance or observance of any of its other agreements herein which shall
remain unremedied for 30 days after notice thereof shall have been given to the
Obligors' Representative by any Bank (provided that such period shall be five
days and no such notice shall be required in the case of a default under Section
9.01(e) or 9.15 hereof and provided further that such period shall be fifteen
days and no such notice shall be required in the case of a default under Section
9.01(d) hereof); or
(e) Any Indebtedness of any Obligor or any Subsidiary of any
Obligor in an aggregate principal amount of $2,500,000 or more, excluding any
Indebtedness for the deferred purchase price of property or services owed to the
Person providing such property or services as to which such Obligor or such
Subsidiary is contesting its obligation to pay the same in good faith and by
proper proceedings and for which such Obligor or such Subsidiary has established
appropriate reserves (herein called "Excluded Indebtedness"), shall (i) become
due before stated maturity by the acceleration of the maturity thereof by reason
of default or (ii) become due by its terms and shall not be promptly paid or
extended; or
(f) Any default under any indenture, credit agreement or loan
agreement or other agreement or instrument under which Indebtedness of any
Obligor or any Subsidiary of any Obligor constituting indebtedness for borrowed
money in an aggregate principal amount of $500,000 or more is outstanding (other
than Excluded Indebtedness), or by which any such Indebtedness is evidenced,
shall have occurred and shall continue for a period of time sufficient to permit
the holder or holders of any such Indebtedness (or a trustee or agent on its or
their behalf) to accelerate the maturity thereof or to enforce any Lien provided
for by any such indenture, agreement or instrument, as the case may be, unless
such default shall have been permanently waived by the respective holder of such
Indebtedness; or
(g) Any Obligor or any Subsidiary of any Obligor shall (i)
apply for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its property, (ii) admit in writing its inability, or be generally
unable, to pay its debts as they become due, (iii) make a general assignment for
the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent, (v)
commence a voluntary case under the Federal bankruptcy laws (as now or hereafter
in effect), (vi) file a petition seeking to take advantage of any law relating
to bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, (vii) acquiesce in writing to, or fail to controvert in a
timely and appropriate manner, any petition filed against such Obligor or such
Subsidiary in any
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involuntary case under such bankruptcy laws, or (viii) take any action for the
purpose of effecting any of the foregoing; or
(h) A case or other proceeding shall be commenced, without the
application, approval or consent of any Obligor or any Subsidiary of any Obligor
, in any court of competent jurisdiction, seeking the liquidation,
reorganization, dissolution, winding up, or composition or readjustment or debts
of any Obligor or any Subsidiary of any Obligor , the appointment of a trustee,
receiver, custodian, liquidator or the like of any Obligor or any Subsidiary of
any Obligor or of all or any substantial part of its assets, or any other
similar action with respect to any Obligor or any Subsidiary of any Obligor
under the laws of bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, and such case or proceeding shall continue
undismissed, or unstayed and in effect, for any period of 30 consecutive days,
or an order for relief against any Obligor or any Subsidiary of any Obligor
shall be entered in an involuntary case under the Federal bankruptcy laws (as
now or hereafter in effect); or
(i) A judgment for the payment of money in excess of $250,000
shall be rendered against any Obligor or any Subsidiary of any Obligor and such
judgment shall remain unsatisfied and in effect for any period of 30 consecutive
days without a stay of execution or (if a stay is not provided for by applicable
law) without having been fully bonded; or
(j) Any Franchise issued to any Obligor or any Subsidiary of
any Obligor shall be revoked or canceled or expire by its terms and not be
renewed, or shall be modified in a manner adverse to any Obligor or any
Subsidiary of any Obligor utilizing such Franchise, if such action is likely to
have a Materially Adverse Effect; or
(k) (i) Any Termination Event shall occur; (ii) any
Accumulated Funding Deficiency, whether or not waived, shall exist with respect
to any Plan; (iii) any Person shall engage in any Prohibited Transaction
involving any Plan; (iv) any Obligor or any ERISA Affiliate is in "default" (as
defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan resulting from any Obligor's or any ERISA Affiliate's
complete or partial withdrawal (as described in Section 4203 or 4205 of ERISA)
from such Plan by any Obligor; (v) any Obligor or any ERISA Affiliate of any
such Person shall fail to pay when due an amount which is payable by it to the
PBGC or to a Plan under Title IV of ERISA and which, when aggregated with all
other such amounts with respect to the payment of which the Obligors and the
ERISA Affiliates are at the time in default, exceeds $125,000; (vi) a proceeding
shall be instituted by a fiduciary of any Plan against any Obligor or any ERISA
Affiliate to enforce Section 515 of ERISA and such proceeding shall not have
been dismissed within 30 days thereafter; and by reason of any or all of such
events described in clauses (i) through (vi) as applicable there shall or could
result in actual or potential liability of any Obligor and any ERISA Affiliate
in excess of $125,000 in the aggregate; or
(l) (i) Dolan Family Interests shall cease at any time to have
beneficial ownership (within the meaning of Rule 13d-3 (as in effect on the date
hereof) promulgated under the Securities and Exchange Act of 1934, as amended)
of shares of the capital stock of Parent Corp. having sufficient votes to elect
(or otherwise designate) at such time a majority of the members of the Board of
Directors of Parent Corp. or (ii) Parent Corp. shall cease to own directly (or,
in the case of CSC TKR I, Inc. indirectly through CSC TKR, Inc.) 100% of the
common stock of
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each Obligor, or any Person (other than Parent Corp. or, in the case of CSC TKR
I, Inc., CSC TKR, Inc.) shall obtain the legal or contractual right to own, or
to cause the transfer of the ownership of, any of the common stock of any
Obligor, without regard to any required approval of any other Person;
THEREUPON, the Administrative Agent may (and, if directed by the Majority Banks,
shall) by notice to the Obligors' Representative, terminate the Commitments of
the Banks hereunder (if then outstanding) and/or declare the unpaid principal of
and accrued interest on the Notes, and all other amounts owing hereunder, to be
forthwith due and payable, whereupon the same shall be and become forthwith due
and payable, without presentment or demand for payment, notice of nonpayment,
protest or further notice or demand of any kind, all of which are hereby
expressly waived by the Obligors (provided that the Banks' Commitments hereunder
shall forthwith terminate and the unpaid principal of and accrued interest on
the Notes, and all other amounts owing hereunder, shall automatically become and
be forthwith due and payable upon the occurrence of any event specified in
clause (g) or (h) above without any such notice or other action, all of which
are hereby expressly waived by the Obligors).
ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.01 Appointment, Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder with such powers as are specifically delegated to the Administrative
Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and shall not by reason of this Agreement be a trustee for any Bank. The
Administrative Agent shall not be responsible to any of the Banks for any
recitals, statements, representations or warranties contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by any of the Banks under, this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, or
any other document referred to or provided for herein or for any failure by any
Obligor to perform any of its obligations hereunder. The Administrative Agent
may employ agents and attorneys-in-fact and shall not be responsible, except as
to money or securities received by it or its authorized agents, for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable or responsible for any action
taken or omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct.
Section 11.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof received by telephone, telex, telegram or
cable) believed by it to be genuine and correct and to have been signed or sent
by or on behalf of the proper Person or Persons, and upon advice and statements
of legal counsel, independent accountants and other experts selected by the
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Administrative Agent. As to any matters not expressly provided for by this
Agreement, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in accordance with
instructions signed by the Majority Banks, and such instructions of the Majority
Banks and any action taken or failure to act pursuant thereto shall be binding
on all of the Banks.
Section 11.03 Defaults. The Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on the Obligations) unless the Administrative Agent has
received notice from a Bank or the Obligors' Representative specifying such
Default and stating that such notice is a "Notice of Default". In the event that
the Administrative Agent receives such a notice of the occurrence of a Default,
the Administrative Agent shall give prompt notice thereof to the Banks (and
shall give each Bank prompt notice of each such non-payment). The Administrative
Agent shall (subject to Section 11.07 hereof) take such action with respect to
such Default as shall be reasonably directed by the Majority Banks, provided
that, unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interest of the Banks.
Section 11.04 Rights as a Bank. With respect to its Commitment and the
Loans made by it, the Administrative Agent in its capacity as a Bank hereunder
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not acting as Administrative Agent, and the
term "Bank" or "Banks" shall, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent
and its affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Obligors, their Subsidiaries and any of their
Affiliates as if it were not acting as Administrative Agent, and the
Administrative Agent and its affiliates may accept fees and other consideration
from the Obligors and their Subsidiaries for services in connection with this
Agreement or otherwise without having to account for the same to the Banks.
Section 11.05 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 12.03 hereof,
but without limiting the obligations of the Obligors under said Section 12.03),
ratably in accordance with the aggregate principal amount of the Obligations
held by the Banks (or, if no Loans are at the time outstanding, ratably in
accordance with their respective Commitments), for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses which the Obligors are
obligated to pay under Section 12.03 hereof but excluding, unless a Default has
occurred and is continuing, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or of any such other documents, provided that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified.
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Section 11.06 Non-Reliance on Administrative Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Obligors and their Subsidiaries and decision to enter into this Agreement and
that it will, independently and without reliance upon the Administrative Agent
or any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any other document
contemplated by or referred to herein. The Administrative Agent shall not be
required to keep itself informed as to the performance or observance by the
Obligors and their Subsidiaries of this Agreement or to inspect the properties
or books of the Obligors and their Subsidiaries. Except for notices, reports and
other documents and information expressly required to be furnished to the Banks
by the Administrative Agent hereunder, the Administrative Agent shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or business of the
Obligors and their Subsidiaries (or any of their Affiliates) which may come into
the possession of the Administrative Agent or any of its affiliates.
Section 11.07 Failure to Act. Except for action expressly required of
the Administrative Agent hereunder, the Administrative Agent shall in all cases
be fully justified in failing or refusing to act hereunder unless it shall be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
Section 11.08 Resignation or Removal of Administrative Agent. Subject
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Banks and the Obligors' Representative, and the Administrative
Agent may be removed at any time with or without cause by the Majority Banks.
Upon any such resignation or removal, the Majority Banks shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Majority Banks and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Banks' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent, which shall be a bank
organized under the laws of the United States of America or any State having an
office (or an affiliate with an office) in New York, New York and a combined
capital and surplus of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent, the provisions
of this Article XI shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent.
Section 11.09 Agency Fee. So long as the Commitments are outstanding
and until payment in full of all Obligations hereunder, the Obligors will pay to
the Administrative Agent
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such fees as may have been agreed to by the Obligors and the Administrative
Agent. Such fees, once paid, shall be non-refundable.
ARTICLE XII
MISCELLANEOUS
Section 12.01 No Waiver. No failure on the part of the Administrative
Agent or any Bank to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Section 12.02 Notices. All notices and other communications provided
for herein shall be by telegraph, cable or in writing and telecopied,
telegraphed, cabled, mailed or delivered to the intended recipient at the
"Address for Notices" specified in Schedule 12.02 hereto or, as to any party, at
such other address as shall be designated by such party in a notice to each
other party. Except as otherwise provided in Section 2.02 hereof, all notices
and other communications hereunder shall be deemed to have been duly given when
transmitted by telecopier, delivered to the telegraph or cable office or
personally delivered or, in the case of a mailed notice, four Business Days
after the date deposited in the mails, airmail postage prepaid, in each case
given or addressed as aforesaid.
Section 12.03. Expenses, Etc. The Obligors shall pay or reimburse each
of the Banks and the Administrative Agent for: (a) the reasonable fees and
expenses of Winthrop, Stimson, Putnam & Roberts, special New York counsel to the
Administrative Agent, in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement, the Notes and the other documents
contemplated by or referred to herein and the making of the Loans hereunder and
(ii) any amendment, modification or waiver of any of the terms of this
Agreement, the Notes or any of such other documents; (b) all reasonable costs
and expenses of the Banks and the Administrative Agent (including reasonable
counsels' fees and expenses) in connection with the enforcement, protection,
preservation or exercise of any of their rights under this Agreement, the Notes
and the other documents contemplated by or referred to herein; and (c) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement,
any of the Notes or any other document referred to herein. Each Obligor shall
(to the fullest extent permitted by applicable law) indemnify the Administrative
Agent, the Banks and each affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages arise out of or
in any way relate to or result from any actual or proposed use by any Obligor of
the proceeds of any Loan hereunder and/or the negotiation, execution, delivery
or performance of this Agreement or the Notes or any Loan made or to be made
hereunder or from any investigation, litigation or other proceeding (including
any threatened investigation or proceeding) relating to the foregoing, and the
Obligors shall reimburse the Administrative Agent and each Bank, and each
affiliate thereof and their
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respective directors, officers, employees and agents, upon demand, for any
expenses (including legal fees) incurred in connection with any such
investigation or proceeding (but excluding any such losses, liabilities, claims,
damages, or expenses to the extent, but only to the extent, caused by action
taken which constitutes the gross negligence or willful misconduct of the Person
to be indemnified). If and to the extent that the obligations of any Obligor
under the preceding sentence may be unenforceable for any reason, such Obligor
shall make the maximum contribution to the payment and satisfaction of each of
the losses, liabilities, claims, damages and expenses referred to above as may
be permitted by applicable law.
Section 12.04 Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes, nor any consent to any departure by any Obligor
therefrom, shall in any event be effective unless the same shall be agreed or
consented to by the Majority Banks, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided that no amendment, waiver or consent shall, unless in writing
and signed by all the Banks, do any of the following: (a) increase the
Commitment of any of the Banks, extend the Commitment Termination Date or
subject the Banks to any additional obligations; (b) reduce the principal of, or
interest on, or fees with respect to, the Obligations or the amount of any
scheduled payments thereof; (c) postpone any date fixed for payment of principal
of, or interest on, or fees with respect to, the Obligations or the Notes; (d)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Obligations, or the number of Banks which shall be required for
the Banks or any of them to take any action under this Agreement; (e) change any
provision contained in Section 4.05, Articles V, VI, VII, Section 12.03 or this
Section 12.04; or (f) release or remove any Guarantor from its obligations
hereunder other than any such release or removal resulting from a transaction
permitted by Section 9.14 hereof.
Section 12.05 Successors and Assigns. (a) This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(b) No Obligor and no Guarantor may sell or assign its respective
rights or obligations hereunder or under the Notes without the prior consent of
all of the Banks and the Administrative Agent.
(c) At any time after the Effective Date, a Bank may sell a
participation of all or in part of its rights and obligations under such Bank's
Commitment under this Agreement and the Notes to one or more commercial banks or
investment companies that enter into participations of the type contemplated by
this Section 12.05 in the ordinary course of their business and that qualify as
"accredited investors," as such term is defined in Regulation D of the
Securities Act of 1933, as amended (each, a "participant"), such participant's
rights against such Bank to be set forth in a participation agreement (a
"Participation Agreement"); provided, however, that (i) such Bank shall submit
in writing to the Obligors' Representative and to the Administrative Agent a
request that each of the Obligors' Representative and the Administrative Agent
consent to the choice of such participant, (ii) the Obligors' Representative and
the Administrative Agent shall consent in writing to the choice of such
participant prior to the time of effectiveness of such participation, such
consent not to be unreasonably withheld or delayed, (iii) such participation
must be in an amount not less than $10,000,000 and (iv) in the event such Bank
was party to this Agreement on the Effective Date, after giving effect to such
participation, such Bank's
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Commitment not so participated if any shall be at least $10,000,000. All amounts
payable by the Obligors to any Bank under Article V hereof shall be determined
as if such Bank had not sold any such participations and as if such Bank were
funding all of its Commitments and Loans in the same way that it is funding the
Commitments and Loans in which no participations have been sold. In no event
shall a Bank that sells a participation be obligated to the participant under
its Participation Agreement to refrain from taking any action hereunder or under
such Bank's Note except that such Bank may agree in such Participation Agreement
that it will not, without the consent of such participant, agree to (A) extend
the Commitment Termination Date, (B) reduce the principal of, or interest on,
the Obligations or under the Notes or any Commitment Fee, (C) postpone any date
fixed for payment of the principal of, or interest on, the Obligations or under
the Notes or any Commitment Fee or (D) change any provision in Article VI
hereof. Any Bank selling a participation hereunder shall promptly notify the
Obligors' Representative of the effectiveness thereof.
(d) At any time after the Effective Date, a Bank may assign part of its
rights and obligations under such Bank's Commitment under this Agreement and the
Notes to one or more commercial banks (each, an "assignee") pursuant to an
Assignment and Acceptance; provided, that (i) such Bank shall submit in writing
to the Obligors' Representative and the Administrative Agent a request that each
of the Obligors' Representative and the Administrative Agent consent to the
choice of such assignee, (ii) the Obligors' Representative and the
Administrative Agent shall consent in writing to the choice of such assignee
prior to the time of effectiveness of such assignment, such consent not to be
unreasonably withheld or delayed, (iii) such assignment must be in an aggregate
amount not less than $10,000,000, (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent, for its approval, acceptance
and recording in the books and records maintained pursuant to Section 12.05(f)
hereof an Assignment and Acceptance, together with a processing and recordation
fee of $3,500 and (v) in the event such Bank was party to this Agreement on the
Effective Date, after giving effect to such assignment, such Bank's Commitment
shall be at least $10,000,000. Upon such execution, delivery, approval,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto,
and to the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations of a
Bank hereunder and under the Notes and (y) the Bank assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations hereunder and under the Notes. Any Bank making an
assignment hereunder shall promptly notify the Obligors' Representative of the
effectiveness thereof. In the event of any such assignment, the Obligors shall,
against receipt of the existing Note of the Bank assignor, issue a new Note to
the Bank assignee and, in the case of a partial assignment, to such Bank
assignor, in either case appropriately reflecting such assignment.
(e) By executing and delivering an Assignment and Acceptance, the Bank
assignor hereunder and the assignee thereunder shall confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Bank makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning
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Bank makes no representation or warranty with respect to the financial condition
of any Obligor or the performance or observance by any Obligor of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Sections 8.04 and 9.01 hereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Bank or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof and thereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.
(f) The Administrative Agent shall maintain books and records in which
shall be recorded (i) the names and addresses of the Banks and the Commitments
of, and principal amount of Obligations owing to, each Bank from time to time;
(ii) all other appropriate debits and credits as provided in this Agreement,
including, without limitation, all interest, fees (including attorneys' fees and
disbursements to the extent reimbursable hereunder), expenses, charges and other
Obligations; and (iii) all payments of Obligations made by the Obligors or for
the Obligors' account. All entries in such books and records shall be made in
accordance with the Administrative Agent's customary accounting practices as in
effect from time to time. The Administrative Agent will render a quarterly
statement to the Obligors' Representative detailing all relevant transactions
for billing purposes. Each and every such statement shall be deemed final,
binding and conclusive upon the Obligors in all respects as to all matters
reflected therein (absent manifest error), unless the Obligors' Representative,
within 15 days after the date such statement is rendered, delivers to the
Administrative Agent written notice of any objections which the Obligors may
have to such statement. In that event, only those items expressly objected to in
such notice shall be deemed to be disputed by the Obligors. Notwithstanding the
foregoing, the Administrative Agent's entries in the books and records
evidencing Loans and other financial accommodations made from time to time shall
be final, binding and conclusive upon the Obligors (absent manifest error) as to
the existence and amount of the Obligations recorded in such books and records.
(g) The Administrative Agent shall maintain at the applicable address
for notices as determined in accordance with Section 12.02 hereof a copy of each
Assignment and Acceptance delivered to and accepted by it and shall record in
such books and records the names and addresses of each Bank and the Commitment
of, and principal amount of the Loans owing to, such Bank from time to time. The
Obligors, the Guarantors, the Administrative Agent and the Banks may treat each
Person whose name is so recorded as a Bank hereunder for all purposes of this
Agreement.
(h) If any Bank (or, if such Bank has participated in any part of its
Loans or Commitment, any of such Bank's participants) does not agree with a
proposal of the Obligors for an amendment, waiver or consent in respect of an
issue described in the penultimate sentence of
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12.05(c) hereof, the Obligors may require that such Bank (and each of its
participants, if any) transfer all of its right, title and interest under this
Agreement and such Bank's Note to any Person identified by the Obligors who
agrees to assume the obligations of such Bank (a "Proposed Bank") for a
consideration equal to the outstanding principal amount of such Bank's Loans,
together with interest thereon to the date of such transfer and all other
amounts payable hereunder to such Bank on or prior to the date of such transfer
(including any fees accrued hereunder and any amounts which would be payable
under Section 5.05 as if all of such Bank's Loans were being prepaid in full on
such date). Subject to the execution and delivery of such instruments and
agreements relating to such transfer as the Banks (including the Proposed Bank
and such Bank) shall request, such Proposed Bank shall be a "Bank" for all
purposes hereunder.
(i) A Bank may furnish any information concerning any of the Obligors
or any of their Subsidiaries or Affiliates in the possession of such Bank from
time to time to assignees and participants (including prospective assignees and
participants).
(j) Notwithstanding anything in the foregoing to the contrary, (x) each
Bank may, without complying with any restrictions set forth in this Section
12.05, sell a participation or assign all or any part of its rights and
obligations under such Bank's Commitment under this Agreement and Notes to any
affiliate of such Bank, provided that the Obligors' Representative shall consent
to the choice of such affiliate, such consent not to be unreasonably withheld or
delayed, and provided, however, that any participation or assignment made by
such affiliate to a non-affiliate must be effected contemporaneously with its
other affiliates such that the non-affiliate participant or assignee holds an
amount of the Commitment as if such participation or assignment had been made by
such Bank; and (y) each Bank may at any time, without complying with any
restrictions set forth in Section 12.05, assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank, provided that such
assignment shall not release the Bank assignor from its obligations under this
Agreement.
Section 12.06. Survival. The obligations of the Obligors under Sections
5.01, 5.05 and 12.03 hereof shall survive the repayment of the Loans.
Section 12.07 Liability of General Partners and Other Persons. No
general partner of any Subsidiary of any Obligor which is a partnership, joint
venture or joint adventure shall have any personal liability in respect of such
Subsidiary's obligations under this Agreement or the Notes by reason of his, her
or its status as such general partner. In addition, no limited partner, officer,
employee, director, stockholder or other holder of an ownership interest of or
in any Obligor or any Subsidiary of any Obligor or any partnership, corporation
or other entity which is a stockholder or other holder of an ownership interest
of or in any Obligor or any Subsidiary of any Obligor shall have any personal
liability in respect of such obligations by reason of his, her or its status as
such limited partner, officer, employee, director, stockholder or holder.
Section 12.08 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart.
Section 12.09 Waiver. THE OBLIGORS, THEIR SUBSIDIARIES, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY WAIVE TRIAL BY JURY IN
50
<PAGE>
ANY JUDICIAL PROCEEDING TO WHICH ANY OF THEM IS A PARTY INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, THE NOTES OR
THE RELATIONSHIP ESTABLISHED HEREUNDER.
Section 12.10 Exntire Agreement. This Agreement and the Notes embody
the entire agreement among the Obligors, their Subsidiaries and the Banks and
supersede all prior agreements, representations and understandings, if any,
relating to the subject matter hereof and thereof.
Section 12.11 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the law of the State of New York.
Section 12.12 Captions, Etc. Captions, section headings and the table
of contents appearing herein are included solely for convenience of reference
and are not intended to affect the interpretation of any provision of this
Agreement.
Section 12.13 Waiver of Certain Defenses. The obligations of each
Obligor to pay amounts hereunder and under the Notes in accordance with the
terms hereof and thereof shall survive irrespective of the validity and
enforceability of this Agreement or the Notes, or the obligations of, any other
Obligor hereunder or thereunder and any other circumstance that might otherwise
affect the liability of such other Obligor. The obligations of each Obligor
under this Agreement shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of any other Obligor is rescinded or
must be otherwise restored by any holder of the obligations guaranteed hereunder
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise and the Obligors agree that they will indemnify the Banks and the
Administrative Agent on demand for reasonable costs and expenses (including,
without limitation, fees of counsel) incurred by the Banks or the Administrative
Agent in connection with such rescission or restoration.
Section 12.14 Release; Acceptances of Release. (a) Release. (i) Each
Obligor hereby releases each other Obligor from all, and agrees not to assert or
enforce (whether by or in a legal or equitable proceeding or otherwise), any
"claims" (as defined in Section 101(5) of the Bankruptcy Code), whether arising
under applicable law or otherwise, to which such Obligor is or would at any time
be entitled by virtue of its obligations under the Notes or this Agreement or
any payment made pursuant hereto, including any such claims to which such
Obligor may be entitled as a result of any right of subrogation, exoneration or
reimbursement.
(ii) To the extent not released by the Obligors under Section
12.14(a)(i), each Obligor agrees that it shall not be entitled to any rights of
subrogation, exoneration, reimbursement and contribution in respect of any
obligations hereunder until payment in full of all of the Obligations.
(b) Acceptance of Release. (i) Each Obligor hereby accepts the releases
effected by Section 12.14(a) hereof and agrees not to restore or attempt to
restore any of the rights thereby released.
51
<PAGE>
(ii) Each Obligor hereby accepts the release effected by
Article VI and agrees not to restore or attempt to restore any of the rights
thereby released.
Section 12.15 Authorization of Third Parties to Deliver Information and
Discuss Affairs. Each Obligor hereby confirms that it has authorized and
directed each Person whose preparation or delivery to the Administrative Agent
or the Banks of any opinion, report or other information is a condition or
covenant under this Agreement (including under Article VII and Article VIII) to
so prepare or deliver such opinions, reports or other information for the
benefit of the Administrative Agent and the Banks. The Obligors agree to confirm
such authorizations and directions provided for in this Section 12.15 from time
to time as may be requested by the Administrative Agent.
Section 12.16 Joint and Several Obligations. The Obligations shall be
the joint and several obligations of the Obligors, and all payments in respect
of the Obligations shall be made by the Obligors jointly and severally.
52
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
OBLIGORS
CSC TKR, INC.
for itself and as General Partner of KRC/CCC
Investment Partnership
CABLEVISION OF BROOKHAVEN, INC.
CABLEVISION OF OAKLAND, INC.
CABLEVISION OF PATERSON, INC.
CSC TKR I, INC.
UA-COLUMBIA CABLEVISION OF
WESTCHESTER, INC.
By /s/ Barry J. O'Leary
--------------------------------------------
Name: Barry J. O'Leary
Title: Senior Vice President,
Finance amd Treasurer
of each of the above-named six corporations
GUARANTORS
TKR CABLE COMPANY OF RAMAPO, INC.
TKR CABLE COMPANY OF WARWICK, INC.
of each of the above-named two corporations
By /s/ Barry J. O'Leary
--------------------------------------------
Name: Barry J. O'Leary
Title: Senior Vice President,
Finance amd Treasurer
KRC/CCC INVESTMENT PARTNERSHIP
By: CSC TKR, Inc., as General Partner
<PAGE>
Commitment
$175,000,000.00 TORONTO DOMINION (NEW YORK), INC., as a Bank
By /s/ Kimberly Burleson
------------------------------------------
Name: Kimberly Burleson
Title: Vice President
THE BANK OF NEW YORK, as a Managing Agent
By /s/ Kalpana Raina
------------------------------------------
Name: Kalpana Raina
Title: Authorized Signer
$125,000,000.00 THE BANK OF NEW YORK COMPANY, INC.,
as a Bank
By /s/ Debra McGarry
------------------------------------------
Name: Debra McGarry
Title: Assistant Vice President
$125,000,000.00 THE BANK OF NOVA SCOTIA, as a Bank and a
Managing Agent
By /s/ Margot Bright
------------------------------------------
Name: Margot C. Bright
Title: Authorized Signatory
$125,000,000.00 THE CANADIAN IMPERIAL BANK OF COMMERCE,
as a Bank and a Managing Agent
By /s/ Amy Kothari
------------------------------------------
Name: Amy Kothari
Title: Executive Director, CIBC
Oppenheimer Corp, as AGENT
<PAGE>
Commitment
$125,000,000.00 NATIONSBANK OF TEXAS, N.A., as a Bank and
a Managing Agent
By /s/ Jennifer Zydney
------------------------------------------
Name: Jennifer Zydney
Title: Vice President
$125,000,000.00 THE CHASE MANHATTAN BANK, as a Bank and
a Managing Agent
By /s/ Mitchell Gerris
------------------------------------------
Name: Mitchell Gerris
Title: Vice President
_______________
$800,000.000.00
TORONTO DOMINION (TEXAS), INC., as Arranging
Agent and Administrative Agent
By /s/ Kimberly Burleson
------------------------------------------
Name: Kimberly Burleson
Title: Vice President
<PAGE>
EXECUTION COPY
================================================================================
CSC TKR, INC.
CABLEVISION OF BROOKHAVEN, INC.
CABLEVISION OF OAKLAND, INC.
CABLEVISION OF PATERSON, INC.
CSC TKR I, INC.
UA-COLUMBIA CABLEVISION OF WESTCHESTER, INC.
---------------------------
SCHEDULES AND EXHIBITS
to
CREDIT AGREEMENT
Dated as of March 4, 1998
TORONTO DOMINION (TEXAS), INC.
as Arranging Agent and as
Administrative Agent
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
THE CANADIAN IMPERIAL BANK OF COMMERCE
NATIONSBANK OF TEXAS, N.A.
THE CHASE MANHATTAN BANK
as Managing Agents
================================================================================
<PAGE>
SCHEDULES
Section
Schedule Description Reference
- - -------- ----------- ---------
2.02(a) Form of Notice of Section 2.02(a)
Loan
2.02(c) Form of Notice of Section 2.02(c)(iv)
Conversion and
Continuation
2.06 Applicable Lending Offices Sections 1.01, 2.06
4.07(c) Form of Certificate of Non-US Bank Section 4.07(c)
8.02 Subsidiaries Section 8.02
8.03 Required Consents and Sections 8.03(ii),
Governmental Approvals 8.12
8.05 Existing Litigation Section 8.05
8.14 Existing Franchises Section 8.14
9.10 Existing Sections 8.09,
Indebtedness 9.10(vii)
9.11 Existing Guarantees Sections 8.09, 9.11(ii)
9.12 Existing Liens Sections 8.06, 8.09,
9.12(iv)
9.15 Existing Investments Sections 8.16, 9.15(iv)
12.02 Addresses for Notices Section 12.02
<PAGE>
EXHIBITS
Section
Exhibit Description Reference
- - ------- ----------- ---------
A Form of Note Section 2.05(a)
B Form of Compliance Section 1.01
Certificate
C Form of Subscribers' Section 1.01
Certificate
D(1) Form of Certificate as to Section 9.01(a)
Quarterly Financial
Statements
D(2) Form of Certificate as to Section 9.01(b)
Annual Financial Statements
E Form of Opinion of General Section 7.01(d)(i)
Counsel to the Obligors
F(1) Form of Opinion of special Section 7.01(d)(ii)
New York counsel to the
Obligors
F(2) Form of Opinion of special Section 7.01(d)(iii)
New Jersey counsel to the
Obligors
F(3) Form of Opinion of special Section 7.01(d)(iv)
FCC counsel to the Obligors
G Form of Opinion of special Section 7.01(e)
New York counsel to the
Administrative Agent
H Form of Assignment and Section 5.06
Acceptance
<PAGE>
Schedule 2.02(a)
[Form of Notice of Loans]
NOTICE OF LOANS
[date]
Toronto Dominion (Texas), Inc.
Company, as Administrative Agent
for the Banks parties to the Credit
Agreement referred to below
909 Fannin Street
Suite 1700
Houston, Texas 77010
Attention: Agency Department
Ladies and Gentlemen:
Reference is hereby made to the Credit Agreement dated as of March 4,
1998 (the "Credit Agreement"), among CSC TKR, Inc., Cablevision of Brookhaven,
Inc., Cablevision of Oakland, Inc., Cablevision of Paterson, Inc., CSC TKR I,
Inc., UA-Columbia Cablevision of Westchester, Inc., the Guarantors which are
parties thereto, the Banks which are parties thereto, the Managing Agents which
are parties thereto and Toronto Dominion (Texas), Inc., as Arranging Agent and
as Administrative Agent. Terms defined in the Credit Agreement that are used
herein shall have the respective meanings assigned to such terms therein.
Pursuant to Section 2.02(a) of the Credit Agreement, the Obligors'
Representative hereby gives notice of a proposed borrowing of Loans, and in that
connection sets forth below the terms on which such borrowing (the "Proposed
Borrowing") is requested to be made:
(A) Date of Proposed Borrowing ___________
(B) Amount of Proposed Borrowing ___________
(C) Type of Loan 1/ ___________
- - --------------------
1 Specify the duration of the Interest Period in the case of Eurodollar
Loans.
<PAGE>
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Borrowing:
(a) The representations and warranties in Article VIII of the Credit
Agreement are true with the same force and effect as if made on and as of such
date, except to the extent that such representations and warranties expressly
relate to an earlier date; and
(b) No Default has occurred and is continuing.
CABLEVISION OF OAKLAND, INC.
By ________________________________________
Name:
Title:
2
<PAGE>
Schedule 2.02(c)
[Form of Notice of Conversion or Continuation]
NOTICE OF CONVERSION OR CONTINUATION
Toronto Dominion (Texas), Inc.
Company, as Administrative Agent
for the Banks parties to the Credit
Agreement referred to below
909 Fannin Street
Suite 1700
Houston, Texas 77010
Attention: Agency Department
Date:
Ladies and Gentlemen:
Reference is hereby made to the Credit Agreement dated as of March 4,
1998 (the "Credit Agreement"), among CSC TKR, Inc., Cablevision of Brookhaven,
Inc., Cablevision of Oakland, Inc., Cablevision of Paterson, Inc., CSC TKR I,
Inc., UA-Columbia Cablevision of Westchester, Inc., the Guarantors which are
parties thereto, the Banks which are parties thereto, the Managing Agents which
are parties thereto and Toronto Dominion (Texas), Inc., as Arranging Agent and
as Administrative Agent. Terms defined in the Credit Agreement that are used
herein shall have the respective meanings assigned to such terms therein. The
undersigned hereby gives notice pursuant to Section 2.02(c) of the Credit
Agreement of its desire to convert or continue the Loans specified below into or
as Loans of the types and in the amounts specified below on [insert date of
conversion or continuation]:
<PAGE>
Converted
Loans to be Converted or Continued or Continued Loans
- - ---------------------------------- -----------------------------------
Last Day of
Type Current Type
of Loan 2/ Interest Period Amount of Loan 1/ Amount
- - -------- --------------- ------ --------- ------
- - -------- --------------- ------ --------- ------
- - -------- --------------- ------ --------- ------
- - -------- --------------- ------ --------- ------
- - -------- --------------- ------ --------- ------
- - -------- --------------- ------ --------- ------
The undersigned represents and warrants that conversions and
continuations requested hereby comply with the requirements of Section 2.02(c)
of the Credit Agreement.
CABLEVISION OF OAKLAND, INC.
By ______________________________________
Name:
Title:
- - --------
1/
2/ Specify the duration of the Interest Period in the case of Eurodollar
Loans.
2
<PAGE>
Schedule 2.06
APPLICABLE LENDING OFFICES
TORONTO DOMINION (NEW YORK), INC.
Lending Office for all Loans:
Agency Department
909 Fannin Street,
Suite 1700
Houston, TX 77010
THE BANK OF NEW YORK
Lending Office for all Loans:
One Wall St., 16th Floor South
New York, New York 10286
THE BANK OF NOVA SCOTIA
Lending Office for all Loans:
One Liberty Plaza
26th Floor
New York, New York 10006
THE CANADIAN IMPERIAL BANK OF COMMERCE
Lending Office for all Loans:
425 Lexington Avenue
New York, New York 10017
<PAGE>
NATIONSBANK OF TEXAS, N.A.
Lending Office for all Loans:
901 Main Street
64th Floor
Dallas, Texas 75202
THE CHASE MANHATTAN BANK
Lending Office for Base Rate Loans:
1 Chase Manhattan Plaza
New York, New York 10081
Lending Office for Eurodollar Loans:
Cayman Islands, B.W.I., Branch
c/o The Chase Manhattan Bank (National Association)
1 Chase Manhattan Plaza
New York, New York 10081
<PAGE>
Schedule 4.07(c)
[Form of Certificate of Non-US Bank]
[Name and address of the Obligors
in accordance with Schedule 12.02]
[Name and address of Administrative
Agent in accordance with Schedule 12.02]
Ladies and Gentlemen:
Reference is hereby made to the Credit Agreement dated as of March 4,
1998 (the "Credit Agreement"), among CSC TKR, Inc., Cablevision of Brookhaven,
Inc., Cablevision of Oakland, Inc., Cablevision of Paterson, Inc., CSC TKR I,
Inc., UA-Columbia Cablevision of Westchester, Inc., the Guarantors which are
parties thereto, the Banks which are parties thereto, the Managing Agents which
are parties thereto and Toronto Dominion (Texas), Inc., as Arranging Agent and
as Administrative Agent. Terms defined in the Credit Agreement that are used
herein shall have the respective meanings assigned to such terms therein.
The undersigned hereby certifies to the Obligors and the Administrative
Agent that it (i) is a Non-US Bank, (ii) is not a "10% shareholder" (within the
meaning of Section 871(h)(3)(B) of the Code) of any of the Obligors and (iii) is
not a controlled foreign corporation (within the meaning of Section 957(a) of
the Code) related to the Obligors (within the meaning of Section 864(d)(4) of
the Code). The undersigned hereby represents to the Obligors and the
Administrative Agent that the information contained in this certificate is true
and correct and understands that the Obligors and the Administrative Agent will
rely on the accuracy of the representations made in this certificate for all
purposes, including for purposes of making any determination that the Obligors
or the Administrative Agent, as the case may be, are not required to withold
amounts payable to such party on account of United States federal income taxes.
Dated:
[BANK]
By____________________________________
Name:
Title:
<PAGE>
Schedule 9.12
Existing Liens
1) None
<PAGE>
Schedule 9.15
Existing Investments
1) None
<PAGE>
Schedule 12.02
ADDRESSES FOR NOTICES
OBLIGORS and all GUARANTORS
Address for Notices:
[Name of Party]
One Media Crossways
Woodbury, New York 11797
Attention: Charles F. Dolan
Telephone No.: 516-364-8450
Telecopy No.: 516-496-1780
With copies to the Treasurer
and the General Counsel of the Obligors at
the above address.
TORONTO DOMINION (TEXAS), INC.
Address for all Notices:
Toronto Dominion (TEXAS), Inc.
Agency Department
909 Fannin Street,
Suite 1700
Houston, TX 77010
Attention: Diane Bailey
Telephone No.: 713-653-8234
Fax No.: 713-951-9921/0611
With copies to:
The Toronto-Dominion Bank
31 West 52nd Street
New York, New York 10019-6101
Attention: Amy Josephson
Communications Finance
Telephone No.: 212-827-7736
Telecopy No.: 212-262-1928
<PAGE>
With copies to:
Toronto Dominion (TEXAS), Inc.
909 Fannin Street
Suite 1700
Houston, Texas 77010
Attention: Agency Department
Telephone No: 713-653-8231
Telecopy No: 713-951-9921/0611
THE BANK OF NEW YORK
Address for all Notices:
The Bank of New York
One Wall Street
16th Floor South
New York, New York 10286
Attention: David Hunt
Telephone No.: 212-635-7294
Telecopy No.: 212-635-8679
Telex No.: 669859
With copies to:
The Bank of New York
One Wall St., 16th Floor South
New York, New York 10286
Attention: Brendan Nedzi
Telephone No.: 212-635-8628
Telecopy No.: 212-635-8593
Telex No.: 12304
2
<PAGE>
THE BANK OF NOVA SCOTIA
Address for all Notices:
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention: Vince Fitzgerald
Telephone No.: 212-225-5042
Telecopy No.: 212-225-5090
Telex No.: 669859
THE CANADIAN IMPERIAL BANK OF COMMERCE
Address for all Notices:
The Canadian Imperial Bank of Commerce
2 Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Attention: Ann Mylan
Telephone: 404-319-4819
Telecopy: 404-319-4950
With copies to:
425 Lexington Avenue, 6th Floor
New York, New York 10017
Attention: Deborah Strek
Telephone: 212-856-3732
Fax No.: 212-455-2502
3
<PAGE>
NATIONSBANK OF TEXAS, N.A.
Address for all Notices:
NationsBank of Texas, N.A.
901 Main Street
66th Floor
Dallas, Texas 75202
Attention: Tanya Davis
Telephone No.: 214-508-0601
Telecopy No.: 214-508-0944
With copies to:
NationsBank of Texas, N.A.
901 Main Street
64th Floor
Dallas, Texas 75283-1000
Attention: Jennifer Zydney
Telephone No.: 214-508-2752
Telecopy No.: 214-508-0980
THE CHASE MANHATTAN BANK
Address for Notices of Borrowing:
The Chase Manhattan Bank
1 Chase Manhattan Plaza, 4th Floor
New York, New York 10081
Attention: Connie Mandracchia
Telephone No.: 212-552-1135
Telecopy No.: 212-552-2783
Telex No.: 125563
4
<PAGE>
Address for all other Notices:
The Chase Manhattan Bank
Media and Communications Component
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Anne Kerns
Telephone No.: 212-552-5982
Telecopy No.: 212-552-4266
5
<PAGE>
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
_________, 1998
New York, New York
FOR VALUE RECEIVED, CSC TKR, INC., CABLEVISION OF BROOKHAVEN, INC.,
CABLEVISION OF OAKLAND, INC., CABLEVISION OF PATERSON, INC., CSC TKR I, INC.,
each a Delaware corporation, and UA-COLUMBIA CABLEVISION OF WESTCHESTER, INC.,
a New York corporation (collectively, the "Obligors"; individually, each an
"Obligor"), hereby promise to pay to the order of _________________ (the "Bank")
for the account of its Applicable Lending Office (as defined in the Credit
Agreement referred to below), at the principal office of Toronto Dominion
(Texas), Inc. at 909 Fannin Street, Suite 1700, Houston, Texas 77010, the
aggregate principal amount of the Loans evidenced hereby, in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each Loan made by the Bank to any or all of the
Obligors under the Credit Agreement, at such office, in like money and funds,
for the period commencing on the date of such Loan until such Loan shall be paid
in full, at the rates per annum and on the dates provided in the Credit
Agreement.
The Bank is hereby authorized by each of the Obligors to endorse on the
schedule attached to this Promissory Note (or any continuation thereof) the
amount and type of, and the duration of each Interest Period for, each Loan made
by the Bank to any or all of the Obligors under the Credit Agreement, the date
such Loan is made, and the amount of each payment on account of principal of
such Loan received by the Bank, provided that any failure by the Bank to make
any such endorsement shall not affect the obligations of the Obligors hereunder
or under the Credit Agreement in respect of such Loans.
<PAGE>
This Promissory Note is one of the Notes referred to in the Credit
Agreement dated as of March 4, 1998 among the Obligors, the Guarantors which are
parties thereto, the Managing Agents which are parties thereto, the Banks
(including the Bank) named therein and Toronto Dominion (Texas), Inc., as
Arranging Agent and as Administrative Agent, as the same may be amended from
time to time (the "Credit Agreement"), and evidences Loans made by the Bank
thereunder. Capitalized terms used in this Promissory Note have the respective
meanings assigned to them in the Credit Agreement.
Upon the occurrence of an Event of Default, the principal hereof and
accrued interest hereon shall become, or may be declared to be, forthwith due
and payable in the manner, upon the conditions and with the effect provided in
the Credit Agreement.
The Obligors may at their option prepay, and may be required to prepay,
all or part of the principal of this Promissory Note before maturity upon the
terms provided in the Credit Agreement.
CSC TKR, INC.
CABLEVISION OF BROOKHAVEN, INC.
CABLEVISION OF OAKLAND, INC.
CABLEVISION OF PATERSON, INC.
CSC TKR I, INC.
UA-COLUMBIA CABLEVISION OF WESTCHESTER, INC.
By:________________________________
Name:
Title:
2
<PAGE>
This Promissory Note evidences Loans made under the within-described Credit
Agreement to the Obligors, in the principal amounts, of the types and having the
Interest Periods set forth below, which Loans were made on the dates set forth
below, subject to the payments in respect of principal set forth below:
Principal Principal
Date Amount of Type of Amount Balance Interest
Made Loan Loan Paid Outstanding Period
- - ---- --------- ------- --------- ----------- --------
<PAGE>
EXHIBIT B
[Form of Compliance Certificate]
COMPLIANCE CERTIFICATE
(Pursuant to Section 9.01(d) of the Credit Agreement)
Period Ending , 19 ("Compliance Date")
I. Special Mandatory Reductions (Section 2.03(b))
----------------------------------------------
(*) aggregate Net Cash Proceeds of dispositions (other
than Paramus-Hillsdale Sale) pursuant to Section
9.14(a)(v) during 90-day period
ended on Compliance Date
("Compliance Period") $______
(**) portion of (*) above that will be used,
as specified in notices from the Obligors to the
Administrative Agent, for acquisitions pursuant to
Section 9.14(b)(ii) $______
(***) aggregate Net Cash Proceeds of each disposition (other
than Paramus-Hillsdale Sale)
pursuant to Section 9.14(a)(v) that were to be
used for acquisitions on or prior to Compliance
Date to the extent the Obligors did not enter
into binding purchase agreements with respect
to such disposition upon the expiration, during
Compliance Period, of the six-month period after
the date of such disposition $______
(****) aggregate Net Cash Proceeds of dispositions (other
than Paramus-Hillsdale Sale)
pursuant to Section 9.15(a)(v) that were to be
used for an acquisition with respect to which
the Obligors had entered into a binding purchase
agreement on or prior to Compliance Date to the
extent such acquisition was not completed upon the
<PAGE>
expiration, during Compliance Period, of the
nine-month period after the date such agreement
was signed $______
[ ] aggregate automatic reductions
to Total Commitment pursuant to Section 2.03(b),
during Compliance Period shall equal 50% of
(1) the result of (*) above minus (**) above plus
(2) (***) above plus (3) (****) above $______
2
<PAGE>
II. Indebtedness (Section 9.10)
---------------------------
(ii) Short-term Indebtedness incurred for working
capital purposes from any Bank outstanding at
Compliance Date $______
(iii) Indebtedness under or in respect of Interest
Swap Agreements at Compliance Date $______
(vi) Total principal amount of Capital Lease
Obligations outstanding at Compliance Date $______
III. Contingent Liabilities (Section 9.11)
-------------------------------------
(v) Aggregate surety bonds outstanding at
Compliance Date $______
(viii) Aggregate amount of obligations guaranteed
outstanding at Compliance Date pursuant to
Section 9.11(viii) $______
IV. Dispositions (Section 9.14(a)(vi)):
----------------------------------
(B) date of the most recent disposition of assets (other than
pursuant to the Paramus-Hillsdale Sale) pursuant
to Section 9.14(a)(vi) _____
(B)(*) aggregate Operating Cash Flow for the twelve-month calendar
period ending on the last day of the calendar month
immediately preceding the month of such date (the
"Test Period") attributable to cable television systems
or portions thereof disposed and any other cable television
systems disposed (other than pursuant to Paramus-
Hillsdale Sale) during the twelve-month period prior to
such date $______
(B)(**) 35% of the aggregate amount of Operating Cash Flow
for the Test Period $______
3
<PAGE>
V. Investments (Section 9.15)
--------------------------
(i) aggregate amount of certificates of deposit and
demand deposits with banks outstanding at
Compliance Date $______
VI. Operating Cash Flow to Total Interest Expense (Section 9.20)
------------------------------------------------------------
Operating Cash Flow for two
Quarters ended on Compliance Date
("Compliance Period") $______
Total Interest Expense for Compliance Period $______
ratio of Operating Cash Flow to
Total Interest Expense at Compliance Date __ to 1
VII. Cash Flow Ratio (Section 9.21)
------------------------------
Aggregate Indebtedness of the
Obligors and their Subsidiaries outstanding
at the Compliance Date excluding Interest
Swap Agreement obligations $______
Operating Cash Flow for the
three-month period ending on the last
day of the month covered by the most
recent Certificate which has been delivered
pursuant to Section 9.01(e) $______
Annualized Operating Cash Flow $______
Cash Flow Ratio at Compliance Date __to 1
4
<PAGE>
The undersigned hereby certifies that the foregoing information is true
and correct to the best of his knowledge and belief.
CSC TKR, INC.
CABLEVISION OF BROOKHAVEN, INC.
CABLEVISION OF OAKLAND, INC.
CABLEVISION OF PATERSON, INC.
CSC TKR I, INC.
UA-COLUMBIA TELEVISION OF WESTCHESTER, INC.
Dated: ______, 19 __ By __________________________________
Name:
Title:
5
<PAGE>
EXHIBIT C
[Form of Subscribers' Certificate]
SUBSCRIBERS' CERTIFICATE
(Pursuant to Section 9.01(e) of the Credit Agreement)
Month of , 19 ("Subject Month")
I. Subscribers:
<TABLE>
<CAPTION>
[Provide information for Brookhaven, Elizabeth, [List Other
Hamilton, Mamaroneck, Metuchen, New Franchise
Brunswick, Morris, Oakland, Paterson, areas
Allamuchy, Ramapo, Rockland and Warwick] individually] Total
----------------------------------------------- ------------- -----
<S> <C> <C> <C>
Penetration:
Number of
basic cable
subscribers
divided by
number of
homes passed ________ ________ ________ ________
Cable miles
cumulative ________ ________ ________ ________
Homes passed
cumulative ________ ________ ________ ________
Pay units ________ ________ ________ ________
Pay-to-Basic
Ratio ________ ________ ________ ________
Cable
subscribers
as of
opening of
subject
month ________ ________ ________ ________
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
[Provide information for Brookhaven, Elizabeth, [List Other
Hamilton, Mamaroneck, Metuchen, New Franchise
Brunswick, Morris, Oakland, Paterson, areas
Allamuchy, Ramapo, Rockland and Warwick] individually] Total
----------------------------------------------- ------------- -----
<S> <C> <C> <C>
Installations ________ ________ ________ ________
Disconnects ________ ________ ________ ________
Cable
subscribers
as of end
of subject
Month ________ ________ ________ ________
</TABLE>
II. Cash Flow Ratio (Section 9.21)
Aggregate Indebtedness of the
Obligors and their Subsidiaries
outstanding as at the last
day of Subject Month, excluding
Interest Swap Agreement obligations $________
Operating Cash Flow for Subject Month $________
Operating Cash Flow for the period
of the three complete consecutive
months including the Subject Month
ending as at the last day of
Subject Month $________
Annualized Operating Cash Flow
for the period of the three
complete consecutive months
including the Subject Month
ending as at the last day of
Subject Month $________
Cash Flow Ratio as at the last
day of Subject Month ____ to 1
2
<PAGE>
III. Cable Line Construction
Cumulative construction
from beginning of
Construction during calendar year through
Subject Month (miles) Subject Month (miles)
--------------------- -----------------------
3
<PAGE>
The undersigned hereby certifies that the foregoing information is true
and correct to the best of his knowledge and belief.
CSC TKR, INC.
CABLEVISION OF BROOKHAVEN, INC.
CABLEVISION OF OAKLAND, INC.
CABLEVISION OF PATERSON, INC.
CSC TKR I, INC.
UA-COLUMBIA TELEVISION OF WESTCHESTER, INC.
Dated: ____________, 19__ By _____________________________
Name:
Title:
4
<PAGE>
EXHIBIT D(1)
[Form of Certificate as to Quarterly Financial Statements]
CERTIFICATE AS TO QUARTERLY FINANCIAL STATEMENTS
I, _______________, [President/Senior Financial Executive] of CSC TKR,
Inc., Cablevision of Brookhaven, Inc., Cablevision of Oakland, Inc., Cablevision
of Paterson, Inc., CSC TKR I, Inc. and UA-Columbia Cablevision of Westchester,
Inc. (the "Obligors"), hereby certify, pursuant to Section 9.01(a) of the
Credit Agreement dated as of March 4, 1998 among the Obligors, the Guarantors
which are parties thereto, the Managing Agents which are parties thereto, the
Banks which are parties thereto and Toronto Dominion (Texas), Inc., as Arranging
Agent and as Administrative Agent (the "Agreement") (capitalized terms used
herein shall have the respective meanings assigned to such terms in the
Agreement), that:
1. The accompanying unaudited combined and consolidated financial
statements of the Obligors and their respective consolidated Subsidiaries as at
and for the quarterly accounting period ending
, 19 , are correct and complete and fairly present, in
accordance with generally accepted accounting principles (except for changes
(described below) that have been approved in writing by [KPMG Peat Marwick], the
Obligors' current independent certified public accountants), the financial
condition and results of operations of the respective entities covered thereby
as at the end of and for such quarterly period, and as at and for the elapsed
portion of the fiscal year ended with the last day of such quarterly period, in
each case on the basis presented and, in each case, subject to year-end and
audit adjustments.
2. (a) The changes from generally accepted accounting principles are as
follows:
All such changes have been approved in writing by [KPMG Peat Marwick].
[(b) Attached hereto as Annex A are unaudited combined and consolidated
financial statements of the Obligors and their respective consolidated
Subsidiaries as at and for the quarterly accounting
period ending , 19 , which have been prepared in accordance with
generally accepted accounting principles without giving effect to the changes
referred to in Paragraph 2(a) of this Certificate or any previous Certificate.
Such financial statements are correct and complete and fairly present, in
accordance with generally accepted accounting principles, the financial
condition and results of operations of the respective entities covered thereby
as at the end of and for
<PAGE>
such quarterly period, and as at and for the elapsed portion of the fiscal year
ended with the last day of such quarterly period, in each case on the basis
presented and, in each case, subject to year-end and audit adjustments.]*
3. To the best of my knowledge, no Default exists, including, in
particular, any such arising under the provisions of Article IX, of the
Agreement, except the following:
[If none such exist, insert "None"; if any do exist, specify the same
by Section, give the date the same occurred, whether it is continuing, and the
steps being taken by the Obligors or any of their Subsidiaries with respect
thereto.]
Dated:
-------------------
--------------------
[President/Senior
Financial Executive]
- - -------------------
* Paragraph (b) should be included in, and Annex A attached to, the
Certificate only if changes from generally accepted accounting
principles are specified in Paragraph 2(a) of this or any previous
Certificate.
2
<PAGE>
EXHIBIT D(2)
[Form of Certificate as to Annual Financial Statements]
CERTIFICATE AS TO ANNUAL FINANCIAL STATEMENTS
I, _____________, [President/Senior Financial Executive] of CSC TKR,
Inc., Cablevision of Brookhaven, Inc., Cablevision of Oakland, Inc., Cablevision
of Paterson, Inc., CSC TKR I, Inc. and UA-Columbia Cablevision of Westchester,
Inc. (the "Obligors"), hereby certify, pursuant to Section 9.01(b) of the
Credit Agreement dated as of March 4, 1998 among the Obligors, the Guarantors
which are parties thereto, the Managing Agents which are parties thereto, the
Banks which are parties thereto and Toronto Dominion (Texas), Inc., as Arranging
Agent and as Administrative Agent (the "Agreement") (capitalized terms used
herein shall have the respective meanings assigned to such terms in the
Agreement), that:
1. The accompanying combined and consolidated financial statements of
the Obligors and their respective consolidated Subsidiaries as at _____ and for
the fiscal year ending __________, 19__ , are correct and complete and fairly
present, in accordance with generally accepted accounting principles (except for
changes (described below) that have been approved in writing by [KPMG Peat
Marwick], the Obligors' current independent certified public accountants), the
financial condition and results of operations of the respective entities covered
thereby as at the end of and for such fiscal year, in each case on the basis
presented.
2. (a) The changes from generally accepted accounting principles are as
follows:
All such changes have been approved in writing by [KPMG Peat Marwick].
[(b) Attached hereto as Annex A are unaudited combined and consolidated
financial statements of the Obligors and their respective consolidated
Subsidiaries as at _________ and for the fiscal year ending _________, 19__,
which have been prepared in accordance with generally accepted accounting
principles without giving effect to the changes referred to in Paragraph 2(a) of
this Certificate or any previous Certificate. Such financial statements are
correct and complete and fairly present, in accordance with generally accepted
accounting principles, the financial condition and results of
<PAGE>
operations of the respective entities covered thereby as at the end of and for
such fiscal year, in each case on the basis presented.]*
3. To the best of my knowledge, no Default exists, including, in
particular, any such arising under the provisions of Article IX, of the
Agreement, except the following:
[If none such exist, insert "None"; if any do exist, specify the same
by Section, give the date the same occurred, whether it is continuing, and the
steps being taken by the Obligors or any of their Subsidiaries with respect
thereto.]
Dated:
-----------------
--------------------
[President/Senior
Financial Executive]
- - --------------------
* Paragraph (b) should be included in, and Annex A attached to, the
Certificate only if changes from generally accepted accounting
principles are specified in Paragraph 2(a) of this or any previous
Certificate.
2
<PAGE>
EXHIBIT G
[WSP&R Letterhead]
___________, 1998
Toronto Dominion (Texas), Inc.,
as Administrative Agent
Ladies and Gentlemen:
We have acted as your special New York counsel in connection with the
Credit Agreement dated as of March 4, 1998 (the "Credit Agreement"), among CSC
TKR, Inc., Cablevision of Brookhaven, Inc., Cablevision of Oakland, Inc.,
Cablevision of Paterson, Inc., CSC TKR I, Inc., each a Delaware corporation,
UA-Columbia Cablevision of Westchester, Inc., a New York corporation
(collectively, the "Obligors"; individually, each an "Obligor"), the Guarantors
parties thereto, the Managing Agents parties thereto, the Banks parties thereto
and Toronto Dominion (Texas), Inc., as Arranging Agent and as Administrative
Agent (the "Administrative Agent"). Except as otherwise specified herein, terms
defined in the Credit Agreement and used herein are used herein as defined
therein.
We have examined the originals or certified, conformed or photographic
copies of such documents, records, agreements and certificates as we have deemed
necessary as a basis for the opinions hereinafter expressed. We have assumed
that the Credit Agreement and the Notes have been duly authorized, executed and
delivered by the respective party or parties thereto and the authenticity of
documents submitted to us as originals and the conformity with the originals of
documents submitted to us as copies. With respect to certain matters of fact, we
have relied upon representations (including those contained in Article VIII of
the Credit Agreement) and certificates of the Obligors, their officers and other
Persons.
<PAGE>
Based upon the foregoing, and subject to the comments and
qualifications set forth below, and having due regard for such legal
considerations as we have deemed relevant, we are of the opinion that each of
the Credit Agreement and the Notes (as to amounts actually advanced there
against) constitutes a valid and binding agreement of the Obligors and their
Subsidiaries (in each case subject to bankruptcy, reorganization, insolvency and
other similar laws affecting creditors' rights generally and limitations on the
availability of equitable remedies imposed by the application of general
equitable principles). We express no opinion as to Article VI of the Credit
Agreement if the consideration or other benefit received by the respective
Guarantor is not fair or is of less than reasonably equivalent value.
We express no opinion as to (i) the fourth sentence of Section 4.05 of
the Credit Agreement, (ii) the effect of the law of any jurisdiction (other than
the State of New York) wherein any Bank (including any of its Applicable Lending
Offices) may be located that limits rates of interest which may be charged or
collected by such Bank or (iii) the effect, if any, on the enforceability of the
Credit Agreement or the Notes of Section 548 of the Bankruptcy Code (11 U.S.C.
Section 548) or Article 10 of the New York Debtor and Creditor Law relating to
fraudulent transfers and obligations.
In connection with the above we wish to point out that (i) provisions
of the Credit Agreement which permit the Administrative Agent or any Bank to
take action or make determinations may be subject to a requirement that such
action be taken or such determinations be made on a reasonable basis and in good
faith, (ii) a holder of a Note may, under certain circumstances, be called upon
to prove the outstanding amount of the Loans evidenced thereby and (iii) the
rights of the Administrative Agent and the Banks under the last two sentences of
Section 12.03 of the Credit Agreement may be limited in certain circumstances.
We are members of the Bar of the State of New York and we do not
express any opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal laws of the United States of America,
except that no opinions are expressed as to any matters governed by the
Communications Act of 1934, as amended, or the rules and regulations issued
thereunder, or as to Article 28 of the New York Executive Law, as amended, or
the rules and regulations issued thereunder or statutes, ordinances and
regulations of New York local governmental authorities relating to cable
television.
This opinion is solely for your benefit and the benefit of each of the
Banks party to the Credit Agreement (each of which may rely on this opinion as
if the same were addressed therein) in connection with the transactions referred
to above; it is not to be used, circulated, quoted or otherwise referred to for
any other purpose.
Very truly yours,
By:
---------------------------------
Name:
Title:
2
<PAGE>
EXHIBIT H
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE dated ___________, 19 between _____________
(the "Assignor") and _______________ (the "Assignee").
PRELIMINARY STATEMENTS:
A. Reference is made to the Credit Agreement dated as of March 4, 1998
(the "Credit Agreement"), among CSC TKR, Inc., Cablevision of Brookhaven, Inc.,
Cablevision of Oakland, Inc., Cablevision of Paterson, Inc., CSC TKR I, Inc.,
each a Delaware corporation, UA-Columbia Cablevision of Westchester, Inc., a New
York corporation (collectively, the "Obligors"; individually, each an
"Obligor"), the Guarantors parties thereto, the Managing Agents parties thereto,
the Banks parties thereto and Toronto Dominion (Texas), Inc., as Arranging Agent
and as Administrative Agent (the "Administrative Agent"). Terms defined in the
Credit Agreement and not otherwise defined herein are used herein as therein
defined.
B. This Assignment and Acceptance is made with reference to the
following facts:
(i) The Assignor is a Bank under and as defined in the Credit Agreement
and, as such, presently holds a percentage of the rights and obligations of the
Banks under the Credit Agreement;
(ii) As of the date hereof, the aggregate amount of the respective
Commitments of the Banks under the Credit Agreement is $_________; and
(iii) On the terms and conditions set forth below, the Assignor desires
to sell and assign to the Assignee, and the Assignee desires to purchase and
assume from the Assignor, as of the Effective Date (as defined below), that
percentage (the "Assigned Percentage") of the Assignor's rights and obligations
under the Credit Agreement with respect to the Assignor's Commitment that is
equal to ____% 3/ of the rights and obligations of all the Banks with respect to
the total Commitments under the Credit Agreement as of the Effective Date.
- - --------------------
3/ Specify percentage in no more than 4 decimal points.
<PAGE>
NOW, THEREFORE, the Assignor and the Assignee hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, the Assigned Percentage
of the Assignor's rights and obligations under the Credit Agreement with respect
to the Assignor's Commitment as in effect as of the Effective Date and the Loans
owing to the Assignor on the Effective Date.
2. The Assignor represents and warrants that (i) as of the date hereof
its Commitment (without giving effect to assignments thereof that have not yet
become effective) is $ ; and (ii) it is the legal and beneficial owner
of the interest being assigned by it hereunder and such interest is free and
clear of any adverse claim. The Assignor makes no representation or warranty and
assumes no responsibility with respect to (A) any statements, warranties or
representations made in or in connection with the Credit Agreement, the Notes or
any other instrument or document furnished pursuant thereto (the "Transaction
Documents") or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other Transaction Document
and (B) the financial condition of any party to any of the Transaction Documents
or the performance or observance by and party to any of the Transaction
Documents of any of its obligations under the Transaction Documents or any other
instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements delivered pursuant
to Section 9.01 thereof, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor or any other Bank
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is a commercial bank; (iv)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement and the other
Transaction Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; (v)
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Bank; (vi) specifies as its address for notices the office
set forth beneath its name on the signature pages hereof; and (vii) specifies as
its Applicable Lending Offices, if any, the address set forth below its name
under the heading "Applicable Lending Offices" on the signature pages hereof.
4. Following the execution of this Assignment and Acceptance, the
original hereof will be delivered to the Obligors' Representative for its
consent and then to the Administrative Agent for approval, acceptance and
recording by the Administrative Agent. The effective date for this Assignment
and Acceptance (the
2
<PAGE>
"Effective Date") shall be ____________; provided, however, that the Effective
Date hereunder shall not occur less than two (2) Business Days after the
execution and delivery of this Assignment and Acceptance to the Administrative
Agent, and, in any event, until the Obligors' Representative has consented to
and the Administrative Agent has approved, accepted and recorded this Assignment
and Acceptance; provided further, however, that the Assignor may in its sole and
absolute discretion terminate this Assignment and Acceptance if the Effective
Date has not occurred within sixty (60) days following the execution hereof.
5. Upon such approval, acceptance and recording by the Administrative
Agent, from and after the Effective Date, (i) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
6. Upon such approval, acceptance and recording by the Administrative
Agent, from and after the Effective Date the Administrative Agent shall make all
payments under the Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and fees
with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods prior
to the Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE AND THE RIGHTS, OBLIGATIONS AND
LIABILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. This Assignment and Acceptance may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Assignment and
Acceptance by signing any such counterpart.
[NAME OF ASSIGNOR]
By______________________________________
Name:
Title:
3
<PAGE>
[NAME OF ASSIGNEE]
By______________________________________
Name:
Title:
Address for notices:
________________________________________
________________________________________
________________________________________
[APPLICABLE LENDING OFFICE]
________________________________________
________________________________________
________________________________________
________________________________________
Consented to, approved, accepted
and recorded this ___ day of
_____, 19__ by TORONTO DOMINION
(TEXAS), INC. as Administrative Agent
By_____________________________
Name:
Title:
Consented to this ___ day of
_____, 19__ by
CABLEVISION OF OAKLAND, INC.
By____________________________
Name:
Title:
4
MASTER REORGANIZATION AGREEMENT
This MASTER REORGANIZATION AGREEMENT (this "Agreement"), dated
March 3, 1998, among CSC Parent Corporation (to be renamed, Cablevision Systems
Corporation), a Delaware corporation ("Cablevision"), and Cablevision Systems
Corporation (to be renamed CSC Holdings, Inc.), a Delaware corporation and a
wholly owned subsidiary of Cablevision ("CSC Holdings").
WHEREAS, pursuant to an Amended and Restated Contribution and
Merger Agreement (the "Contribution and Merger Agreement"), dated as of June 6,
1997, by and among CSC Holdings, Cablevision, CSC Merger Corporation, a Delaware
corporation, and TCI Communications, Inc., a Delaware corporation ("TCI"),
Cablevision will, among other things, acquire the Acquired Assets and the
Contributed Subsidiary Capital Stock and assume the Assumed Liabilities in the
Contribution;
WHEREAS, Cablevision may restructure the operations of
Cablevision and its Subsidiaries as set forth herein;
WHEREAS, the parties to this Agreement have agreed in the
Contribution and Merger Agreement that they shall not take or cause to be taken
any action, whether before or after the Effective Time, that would cause the
Merger, the Contribution or, if applicable, the Partnership Contribution not to
qualify as an exchange governed by Section 351 of the Code; and further thereto,
the parties hereto have no plan or intention to engage in any transaction,
including the Reorganization, that would cause the Merger, the Contribution or
the Partnership Contribution not to qualify as an exchange governed by Section
351 of the Code;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows:
<PAGE>
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Specific Definitions. The following terms shall
have the meaning set forth or referenced below. Any capitalized terms used but
not specifically defined in this Agreement shall have the meaning set forth in
the Contribution and Merger Agreement.
"First-Tier Reorganization" means a reorganization in
accordance with the terms of Article II.
"Reorganization" means the First-Tier Reorganization and the
Second-Tier Reorganization.
"Second-Tier Reorganization" means a reorganization in
accordance with the terms of Article III.
ARTICLE II
FIRST-TIER REORGANIZATION
2.1. Terms of First-Tier Reorganization. Cablevision shall,
after the Effective Time but subject to the satisfaction or waiver of the
conditions set forth in Section 4.1, effect and cause to be effected the
First-Tier Reorganization effective as of the time and dates and in the
chronological order set forth on Schedule 1.
ARTICLE III
SECOND-TIER REORGANIZATION
3.1. Terms of Second-Tier Reorganization. Cablevision and CSC
Holdings may, if Cablevision so elects after the Effective Time but subject to
the satisfaction or waiver of the conditions set forth in Article IV, effect and
cause to be effected the Second-Tier Reorganization effective as of the times
and dates and in the chronological order set forth on Schedule 2 or at such
other times, dates and order as Cablevision may designate.
-2-
<PAGE>
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Conditions to the Reorganization. The Reorganization
shall be subject to the satisfaction (or waiver by Cablevision and CSC Holdings)
of the following conditions:
(a) Completion of the Contribution. The Contribution
Closing shall have occurred.
(b) No Injunctions or Restraints; Illegality. No
temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of the
Reorganization shall be in effect. There shall not be any action
taken, or any statute, rule, regulation or order enacted, entered,
enforced or deemed applicable to the Reorganization, which makes the
consummation of the Reorganization illegal.
4.2. Conditions to the Second-Tier Reorganization. The
Second-Tier Reorganization shall be subject to the satisfaction of the following
conditions:
(a) Timing; Internal Revenue Service Ruling. Either (i) an
amount of time equal to one-year from the Contribution Closing shall
have elapsed or (ii) Cablevision or CSC Holdings shall have obtained a
ruling from the Internal Revenue Service to the effect that the
transactions in the Second-Tier Reorganization will not cause the
Contribution and the Merger not to qualify as an exchange governed by
Section 351 of the Code; and
(b) The First-Tier Reorganization. The First-Tier
Reorganization shall have been consummated.
ARTICLE V
MISCELLANEOUS
5.1. Termination. This Agreement may be terminated at any
time by an instrument executed by
-3-
<PAGE>
Cablevision and CSC Holdings. In the event of termination of this Agreement,
this Agreement shall forthwith become void and there shall be no liability or
obligation on the part of Cablevision or CSC Holdings or their respective
officers or directors.
5.2. Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when all counterparts have been signed by each of the
parties and delivered to all the other parties, it being understood that all
parties need not sign the same counterpart.
5.3. Entire Agreement. The Contribution and Merger Agreement
and this Agreement (including the documents and the instruments referred to
herein and therein) constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
5.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws applied under the Contribution and Merger
Agreement.
5.5. Third-Party Beneficiaries. This Agreement shall not be
construed to accrue any benefits, rights or privileges to any Person other than
the parties to this Agreement.
5.6. Amendment. This Agreement may be amended by the mutual
written agreement of the parties hereto.
-4-
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be signed by their respective officers as of the date first above written.
CABLEVISION SYSTEMS CORPORATION
By: /s/ Robert S. Lemle
---------------------------------
Name: Robert S. Lemle
Title: Executive Vice President,
General Counsel and
Secretary
CSC PARENT CORPORATION
By: /s/ Robert S. Lemle
---------------------------------
Name: Robert S. Lemle
Title: Executive Vice President,
General Counsel and
Secretary
-5-
<PAGE>
SCHEDULE 1
<TABLE>
<CAPTION>
CONTRIBUTED SUBSIDIARY CAPITAL
STOCK/ACQUIRED ASSETS/ASSUMED DATE AND TIME
LIABILITIES TRANSFEROR TRANSFEREE OF TRANSFER
----------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. .11% Interest in TKR Cable Company Parent CSC TKR, Inc. 3/4/98 at*
2. 99.89% Interest in TKR Cable Parent CSC TKR, Inc. 3/4/98 at*
Company
3. 52.05% Interest in KRC/CCC Parent CSC TKR, Inc. 3/4/98 at*
Investment Partnership
4. 52.05% Interest in KRC/CCC CSC TKR, CSC TKR I, 3/4/98 at**
Investment Partnership Inc. Inc.
5. 47.95% Interest in KRC/CCC Parent CSC TKR, Inc. 3/4/98 at*
Investment Partnership
6. Acquired Assets and Assumed Parent Cablevision 3/4/98 at*
Liabilities relating to the Oakland of Oakland,
and Franklin Lakes, New Jersey Inc.
Asset Contributed Systems***
7. Acquired Assets and Assumed Parent Cablevision 3/4/98 at*
Liabilities relating to the of
Brookhaven, New York Asset Brookhaven,
Contributed System*** Inc.
8. Certain Acquired Assets and Assumed Parent Cablevision 3/4/98 at*
Liabilities relating to the of Patterson,
Paterson, New Jersey Asset Inc.
Contributed System***
9. Remaining Acquired Assets and Parent Cablevision 3/4/98 at*
Assumed Liabilities relating to the of Patterson,
Paterson, New Jersey Asset Inc.
Contributed System and the Acquired
Assets and Assumed Liabilities
relating to the Allamuchy, New
Jersey Asset Contributed System***
- - --------
<FN>
* Immediately upon receipt by Parent pursuant to the transfers under the
Contribution and Merger Agreement.
** Immediately upon receipt by CSC TKR, Inc. from Parent pursuant to the
transfer under the set forth in 2 above.
*** Transfer including a transfer of certain rights to receive Acquired Assets
(and obligations to assume Assumed Liabilities) relating to the respective
Asset Contributed Systems being transferred as contemplated by Section 3.6
of the Contribution and Merger Agreement.
</FN>
</TABLE>
-6-
<PAGE>
SCHEDULE 2
TRANSFERRED
SUBSIDIARY TRANSFEROR TRANSFEREE
- - -------------------------------------------------------------------------------
UA-Columbia Cablevision Systems CSC Holdings, Inc.
Cablevision of Corporation
Westchester, Inc.
Cablevision of Cablevision Systems CSC Holdings, Inc.
Brookhaven, Inc. Corporation
Cablevision of Cablevision Systems CSC Holdings, Inc.
Patterson, Inc. Corporation
Cablevision of Cablevision Systems CSC Holdings, Inc.
Oakland, Inc. Corporation
CSC TKR, Inc. Cablevision Systems CSC Holdings, Inc.
Corporation
All of the Cablevision Systems CSC Holdings, Inc.
outstanding capital Corporation
stock held by
Cablevision Systems
Corporation in The
Cable Television
Network of New
Jersey, Inc.
Rainbow Media CSC Holdings, Inc. Cablevision Systems
Holdings, Inc. Corporation
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CABLEVISION SYSTEMS CORPORATION
Contact: Charlie Schueler
(516) 393-1399
Susan Pelcher
(516) 393-1961
TELE-COMMUNICATIONS, INC.
Contact: LaRae Marsik, Media Relations
303-267-5277
Linda Dill, Investor Relations
303-267-5048
TCI AND CABLEVISION COMPLETE TRANSACTION
NEW YORK, NEW JERSEY AREA CABLE SYSTEMS SERVING 830,000 CUSTOMERS
TRANSFERRED TO CABLEVISION,
TCI RECEIVED EQUITY POSITION IN RETURN
WOODBURY, N.Y., AND ENGLEWOOD, COLO., MARCH 4, 1998 - Cablevision Systems
Corporation (ASE:CVC) and TCI Communications, Inc. ("TCIC"), part of
TeleCommunications, Inc.'s TCI Group (NASDAQ:TCOMA), today announced that they
have completed the transfer of TCIC's New York metropolitan area cable systems
to Cablevision. Cablevision now serves the country's largest single regional
cluster of cable customers -- 2.5 million cable homes.
In the transaction, originally announced in June 1997, Cablevision has acquired
TCIC's systems in New Jersey, Westchester Country, N.Y. and Long Island serving
approximately 830,000 customers. In exchange, subsidiaries of
Tele-Communication, Inc. ("TCI") have received approximately 12.2 million newly
issued Cablevision Class A Common shares, which represents approximately 33
percent of Cablevision's total shares outstanding. TCI will have two
representatives on Cablevision's board of directors, each of whom will occupy
seats elected by Cablevision Class B shareholders.
"This acquisition is key to our strategy to focus resources on our core
geographic clusters in the New York, Boston and Cleveland markets," explained
Cablevision Chief Executive Officer James L. Dolan. "It will enable us to offer
our customers a new generation of
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telecommunications technologies and services, including high-speed Internet
access, telephone service, HDTV, digital television, and attractive regional and
local programming."
"We're very pleased to have an investment in Cablevision as they enhance their
operations in the New York area and bolster their growth into new product and
service areas," said Leo J. Hindery Jr., president and chief executive officer
of TCI Communications, Inc. "This is a tremendously valuable arrangement for
both companies, and we look forward to a very long relationship with the
exceptional management team at Cablevision."
Effective immediately, Cablevision will operate systems serving approximately
597,000 customers in New Jersey, including Hamilton, Raritan Valley (formerly
Tri-System), Elizabeth, Morris, Paterson/Allamuchy, and Oakland. The acquisition
also includes the systems serving approximately 162,000 customers in
Westchester, including Ramapo/Rockland, Warwick and Southern Westchester
(Mamaroneck). In addition, Cablevision has acquired the Brookhaven, Long Island
system, which serves 71,000 customers.
Separately, Cablevision and TCIC have reached an agreement in principle for
Cablevision to purchase systems serving 250,000 households in Connecticut in
exchange for Cablevision's Kalamazoo, Michigan system and an additional equity
position in the company. That transaction is expected to be completed later this
year.
Cablevision Systems Corporation is one of the nation's leading
telecommunications and entertainment companies and one of the largest operators
of cable television systems in the United States. Cablevision serves more than
3.3 million customers in nine states with major operations in the Boston,
Cleveland and New York metropolitan area, where Cablevision now serves 2.5
million households. Its subsidiary, Rainbow Media Holdings, Inc., manages
entertainment, news and sports programming, including American Movie Classics,
Bravo, and The Independent Film Channel, and is a 50-percent partner in Fox
Sports Net. The company owns a majority interest in Madison Square Garden L.P.,
which includes the arena complex, the New York Knicks, the New York Rangers, as
well as the MSG Network. Its Radio City Productions manages the operations of
New York's famed Radio City Music Hall, and holds a long-term lease on the
property. Cablevision Lightpath, a wholly-owned subsidiary, provides telephone
service to more than 850 businesses on Long Island, while Optimum Online offers
high speed online and Internet access via cable modems to customers in New York
and Connecticut. Most recently, the company acquired Nobody Beats The Wiz, Inc.
Tele-Communications, Inc. is traded through the TCI Group, the TCI Ventures
Group and the Liberty Media Group common stocks. The Series A and Series B TCI
Group
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<PAGE>
common stocks are traded on the National Market tier of the Nasdaq Stock Market
under the symbols of TCOMA and TCOMB, respectively.
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FOR IMMEDIATE RELEASE:
CABLEVISION SYSTEMS CORP. Contact:
One Media Crossways Charles Schueler
Woodbury, N.Y. (516) 393-1399
CABLEVISION SYSTEMS CORPORATION ANNOUNCES
DECLARATION OF TWO-FOR-ONE STOCK SPLIT
WOODBURY, N.Y., - MARCH 4, 1998 - Cablevision Systems Corporation (ASE:CVC)
today announced the declaration of a two-for-one stock split to be effected as a
special stock distribution of one share of common stock for each share of the
Company's common stock outstanding.
The record date for the distribution has been set for March 19, 1998. The
payment date will be March 30, 1998.
"We are gratified that the marketplace has placed increased value on
Cablevision's common stock. By extension, the market has recognized what we
believe is a very sound business strategy of building a state-of-the-art
telecommunications infrastructure. This will allow us to offer a new generation
of services while developing live and televised information, sports and
entertainment programming for our customers," said Cablevision Chief Executive
Officer James L. Dolan. "We hope that this stock split will make Cablevision
shares more accessible to the marketplace," Mr. Dolan continued.
Cablevision Systems Corporation is one of the nation's leading
telecommunications and entertainment companies and one of the largest operators
of cable television systems in the United States. Cablevision serves more than
3.3 million customers in nine states with major operations in the Boston,
Cleveland and New York metropolitan area, where Cablevision now serves 2.5
million customers. Its subsidiary, Rainbow Media Holdings, Inc., manages
entertainment, news and sports programming, including American Movie Classics,
Bravo, and The Independent Film Channel, and is a 50-percent partner in Fox
Sports Net. The company owns a majority interest in Madison Square Garden L.P.,
which includes the arena complex, the New York Knicks, the New York Rangers, as
well as the MSG Network. Its Radio City Productions manages the operations of
New York's famed Radio City Music Hall, and holds a long-term lease on the
property. Cablevision Lightpath, a wholly-owned subsidiary, provides telephone
service to more than 850 businesses on Long Island, while Optimum Online offers
high-speed online and Internet access via cable modems to customers in New York
and Connecticut. Most recently, the company acquired Nobody Beats The Wiz, Inc.
