<PAGE> 1
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) JANUARY 2, 1998
NORTHLAND CABLE PROPERTIES SIX LIMITED PARTNERSHIP
(Exact name of registrant as specified in charter)
STATE OF WASHINGTON 0-16063 91-1318471
- ------------------------------- ------------ -------------------
(State or other jurisdiction of (Commission (IRS Employer
of incorporation) File Number) Identification No.)
NORTHLAND COMMUNICATIONS CORPORATION
3600 WASHINGTON MUTUAL TOWER
1201 THIRD AVENUE, SEATTLE, WASHINGTON 98101
-----------------------------------------------------
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (206) 621-1351
N.A.
-------------------------------------------------------------
(Former name or former address, if changed since last report)
This filing contains________ pages. Exhibits Index appears on page ________ .
<PAGE> 2
NORTHLAND CABLE PROPERTIES SIX LIMITED PARTNERSHIP
ITEM 2. ACQUISITION OF ASSETS
On August 27, 1997 Northland Cable Television, Inc. (NCTV), an affiliate
of Northland Cable Properties Six Limited Partnership (the "Registrant"),
entered into an asset purchase and sale agreement with Intermedia Partners of
Carolina, L.P. and Robin Cable Systems, L.P. (collectively "Sellers") for the
purchase of 10 cable systems located in South Carolina. NCTV assigned all of its
rights under the asset purchase and sale agreement relating to systems located
in Bennettsville, Barnwell, Bamberg and Allendale, South Carolina (the
"Systems") to the Registrant. The Systems are operated from four headends and
serve an aggregate of approximately 11,280 basic subscribers. On January 2, 1998
the Registrant purchased all operating assets and franchise rights of the
Systems at a purchase price of $20,500,000, adjusted at closing for the
proration of certain revenues and expenses. Of the total purchase price Sellers
received $20,400,055 on January 2, 1998. Under the terms of the asset purchase
and sale agreement the remaining balance of $99,945 will be held in escrow for a
period of six months to be offset by any remaining post-closing adjustments.
There is no material relationship between the Registrant and Sellers or any of
their affiliates, directors, officers or associates.
FINANCING
The purchase was financed by borrowings under the Registrant's amended
and restated revolving credit and term loan facility (the "Credit Facility").
The Credit Facility provides for borrowings up to $33,000,000 including a
$25,000,000 term loan, and an $8,000,000 revolving credit facility which mature
December 31, 2000. As of the date of this filing the balance outstanding under
the Credit Facility is $31,372,848. The remaining credit capacity of $1,627,152
is available to the Registrant based on maintenance of certain financial
covenants. This credit capacity will be available to the Registrant for future
working capital needs. Based on management's estimates no borrowings will be
required to meet the Registrant's future operating, debt service or capital
expenditure obligations.
On January 8, 1998 the Registrant entered into a self-amortizing
interest rate swap agreement on $23,000,000 at a fixed rate of 8.02% expiring
December 31, 1999. Additionally the Registrant has fixed rates as follows:
$6,200,000 fixed at 8.00% expiring June 30, 1998; $2,000,000 fixed at 7.79%
expiring March 31, 1998. The above rates include a margin paid to the lender
based on overall leverage (currently 2.25%), and may increase or decrease as the
Registrant's leverage fluctuates.
PROFILE OF THE SYSTEMS
The City of Bennettsville is located approximately 100 miles northeast
of Columbia, South Carolina and serves as the county seat of Marlboro County.
The economy is primarily driven by agriculture and
2
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manufacturing, with three of the largest employers being Mohawk Carpet, United
Technologies Automotive and Williamette Industries.
Barnwell, Bamberg and Allendale are located approximately sixty miles south
of Columbia, South Carolina. The economy is based primarily on agricultural and
manufacturing activities.
SUBSCRIBER SUMMARY
- ------------------
<TABLE>
<CAPTION>
BENNETTSVILLE BARNWELL BAMBERG ALLENDALE
------------- -------- ------- ---------
<S> <C> <C> <C> <C>
Estimated Homes Passed: 9,090 5,395 3,884 2,844
Basic Subscribers: 5,154 2,704 2,102 1,321
% of Homes Passed 56.7% 50.1% 54.1% 46.4%
Pay Subscribers: 4,481 2,019 1,399 1,104
% of Basic 86.9% 37.4% 36.0% 38.8%
CURRENT RATES
- -------------
Basic $21.64 $27.28 $28.37 $28.37
HBO 12.45 10.95 10.95 10.95
The Movie Channel 9.95 10.95 10.95 10.95
Disney 8.95 8.95 8.95 8.95
Cinemax 9.95 N/A 10.95 N/A
Showtime 11.20 10.95 10.95 10.95
Encore 1.50 N/A N/A N/A
Installation 38.64 42.98 42.98 42.98
Reconnect fee 25.76 26.82 26.82 26.82
</TABLE>
3
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CHANNEL LINE-UP - BENNETTSVILLE, SOUTH CAROLINA
<TABLE>
<CAPTION>
CABLE
CHANNEL STATION
------- -------
<S> <C>
2 HBO
3 WWMB (IND)
4 Government Access
5 WCCB (FOX)
6 DISNEY
7 Government Access
8 WJPM (PBS)
9 WPDE (ABC)
10 WIS (NBC)
11 WECT (NBC)
12 WBTW (CBS)
13 WSOC (ABC)
14 ENCORE
15 F/X
16 WTBS (IND)
17 MTV
18 FAMILY
19 BET
20 CNN-HN
21 SHOWTIME
22 PPV
23 SPORTSOUTH
24 ESPN
25 USA
26 TNT
27 COURT-TV
28 VH-1
29 CNN
30 NICKELODEON
31 QVC
32 A&E
33 LIFETIME
34 CMT
35 TNN
36 TBN
37 C-SPAN
</TABLE>
4
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CONTINUED CHANNEL LINE-UP - BENNETTSVILLE, SOUTH CAROLINA
<TABLE>
<CAPTION>
CABLE
CHANNEL STATION
------- -------
<S> <C>
38 CNBC
39 WEATHER
40 COMEDY CENTRAL
41 DISCOVERY
42 LEARNING
43 AMC
44 ESPN- 2
45 AMERICA'S TALKING
46 HISTORY
47 TURNER CLASSIC MOVIES
60 THE MOVIE CHANNEL
61 CINEMAX
</TABLE>
5
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CHANNEL LINE-UP - ALLENDALE, SOUTH CAROLINA
<TABLE>
<CAPTION>
CABLE
CHANNEL STATION
------- -------
<S> <C>
2 WFXG (FOX)
3 WLTX (CBS)
4 QVC
5 WJBF (ABC)
6 WEATHER
7 WAGT (NBC)
8 WEBA (PBS)
9 HSN
10 WIS (NBC)
11 MTV
12 WOLO (ABC)
13 WRDW (CBS)
14 WGN
15 TNT
16 DISCOVERY
17 -
18 LIFETIME
19 USA
20 -
21 -
22 -
23 ESPN
24 FAMILY
25 TNN
26 WTBS
27 NICKELODEON
28 CNN
29 BET
30 SportSouth
31 A&E
32 CNN-HN
33 CMT
34 C-SPAN
35 F/X
36 FOX NEWS
37 ESPN-2
38 HISTORY
39 HGTV
40 LEARNING
</TABLE>
6
<PAGE> 7
CONTINUED CHANNEL LINE-UP - ALLENDALE, SOUTH CAROLINA
<TABLE>
<CAPTION>
CABLE
CHANNEL STATION
------- -------
<S> <C>
41 ODYSSEY
PAY AND PPV SERVICES
17 DISNEY
20 TMC
21 HBO
22 SHOWTIME
60 CINEMAX
</TABLE>
7
<PAGE> 8
CHANNEL LINE-UP BAMBERG, SOUTH CAROLINA
<TABLE>
<CAPTION>
CABLE
CHANNEL STATION
------- -------
<S> <C>
2 WFXG (FOX)
3 WLTX (CBS)
4 QVC
5 WJBF (ABC)
6 WEATHER
7 WAGT (NBC)
8 WEBA (PBS)
9 HSN
10 WIS (NBC)
11 MTV
12 WOLO (ABC)
13 WRDW (CBS)
14 WGN
15 TNT
16 DISCOVERY
17 -
18 LIFETIME
19 USA
20 -
21 -
22 -
23 ESPN
24 FAMILY
25 TNN
26 WTBS
27 NICKELODEON
28 CNN
29 BET
30 SPORTSOUTH
31 A&E
32 CNN-HN
33 CMT
34 C-SPAN
35 F/X
36 FOX NEWS
37 ESPN- 2
38 HISTORY
39 HGTV
40 LEARNING
</TABLE>
8
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CONTINUED CHANNEL LINE-UP- BAMBERG, SOUTH CAROLINA
<TABLE>
<CAPTION>
CABLE
CHANNEL STATION
------- -------
<S> <C>
41 VISN
PAY AND PPV SERVICES
--------------------
17 DISNEY
20 TMC
21 HBO
22 SHOWTIME
60 CINEMAX
</TABLE>
9
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CHANNEL LINE-UP- BARNWELL, SOUTH CAROLINA
<TABLE>
<CAPTION>
CABLE
CHANNEL STATION
------- -------
<S> <C>
2 WFXG (FOX)
3 WLTX (CBS)
4 QVC
5 WJBF (ABC)
6 WEATHER
7 WAGT (NBC)
8 WEBA (PBS)
9 HSN
10 WIS (NBC)
11 MTV
12 WOLO (ABC)
13 WRDW (CBS)
14 WGN
15 TNT
16 DISCOVERY
17 -
18 LIFETIME
19 USA
20 -
21 -
22 -
23 ESPN
24 FAMILY
25 TNN
26 WTBS
27 NICKELODEON
28 CNN
29 BET
30 SPORTSOUTH
31 F/X
32 FOX NEWS
PAY AND PPV SERVICES
17 DISNEY
20 TMC
21 HBO
22 SHOWTIME
</TABLE>
10
<PAGE> 11
FRANCHISE AGREEMENTS
The Systems operate under the terms of following franchise agreements:
<TABLE>
<CAPTION>
FRANCHISE EXPIRATION DATE FRANCHISE FEE
<S> <C> <C>
City of Bennettsville June 10, 2006 5%
City of McColl March 22, 2007 5%
Town of Tatum May 31, 2007 5%
Town of Clio February 14, 1998 3%
Marlboro County August 30, 2007 3%
Allendale County July 16, 2012 3%
Town of Allendale November 13, 2007 3%
Town of Fairfax September 13, 2003 3%
Bamberg County February 19, 2007 3%
City of Bamberg January 8, 2007 3%
City of Denmark November 20, 2007 3%
Barnwell County March 18, 2012 3%
City of Barnwell October 6, 2006 3%
Town of Blackville November 20, 2010 5%
Town of Elko November 19, 2011 3%
Town of Snelling May 23, 2004 3%
Town of Williston October 13, 2006 3%
</TABLE>
11
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<TABLE>
<CAPTION>
Sequentially
Numbered
Page
------------
<S> <C> <C>
Item 7. Financial Statements and Exhibits
Financial Statements, Pro Forma
(a)(4) The financial statements required to be filed were not available as of
the date of this filing.
(b)(2)(c) Exhibits
Asset Purchase and Sale Agreement between
Northland Cable Television, Inc. and
Intermedia Partners of Carolina, L.P. and
Robin Cable Systems, L.P.
Assignment and Assumption of Asset
Purchase and Sale Agreement between
Northland Cable Television, Inc. and
Northland Cable Properties Six Limited
Partnership
Revolving Credit and Term Loan
Agreement between Northland Cable
Properties Six Limited Partnership
and First Union National
Bank
First Amendment to the Asset Purchase
and Sale Agreement between
Northland Cable Television, Inc. and
InterMedia Partners of Carolina, L.P.
and Robin Cable Systems, L.P.
</TABLE>
12
<PAGE> 13
SIGNATURES
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 thereunto duly authorized.
NORTHLAND CABLE PROPERTIES SIX LIMITED PARTNERSHIP
BY: Northland Communications Corporation,
Managing General Partner
Dated: ______________ BY: /s/ GARY S. JONES
-----------------
Gary S. Jones
(Vice President)
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<PAGE> 14
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description Numbered Page
- ------- ----------- -------------
<S> <C> <C>
10.41 Asset Purchase and Sale Agreement between
Northland Cable Television, Inc. and
InterMedia Partners of Carolina, L.P. and
Robin Cable Systems, L.P.
10.42 Assignment and Assumption of Asset
Purchase and Sale Agreement between
Northland Cable Television, Inc. and
Northland Cable Properties Six Limited
Partnership
10.43 Revolving Credit and Term Loan
Agreement between Northland Cable
Properties Six Limited Partnership
and First Union National
Bank
10.44 First Amendment to the Asset
Purchase and Sale Agreement
between Northland Cable Television,
Inc. and InterMedia Partners of
Carolina, L.P. and Robin Cable
Systems, L.P.
</TABLE>
15
<PAGE> 1
ASSET PURCHASE AND SALE AGREEMENT
Dated as of August 27, 1997
by and between
INTERMEDIA PARTNERS OF CAROLINA, L.P.
and
ROBIN CABLE SYSTEMS, L.P.
as Sellers
and
NORTHLAND CABLE TELEVISION, INC.
as Buyer
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE 1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Accounts Payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Assumed Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 Basic Subscriber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.9 Basic Subscriber Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.10 Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.11 Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.12 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.13 Communications Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.14 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.15 Current Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.16 Current Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.17 Deferred Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.18 Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.19 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.20 FCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.21 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.22 Franchises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.23 Franchise Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.24 GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.25 Governmental Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.26 Governmental Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.27 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.28 Legal Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.29 Necessary Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.30 Nonstandard Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.31 Other Current Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.32 Prepaid Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.33 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.34 Required Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.35 Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.36 Signals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.37 Subscriber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.38 Subscriber Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.39 Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.40 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.41 Working Capital Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.42 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 2 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Purchase and Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Assumed Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Purchase Price and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.4 Preliminary and Final Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.5 Disputed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.6 Completion of Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
-i- ASSET PURCHASE
AND SALE AGREEMENT
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 3 Representations and Warranties of Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1 Organization and Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2 Sellers' Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.3 Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.4 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.5 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.6 Compliance with Other Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.7 Complete System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.8 Title and Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.9 Cable Plant and Homes Passed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.10 Franchises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.11 Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.12 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.13 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.14 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.15 Carriage of Signals and Channel Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.16 FCC and Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.17 Profit and Loss Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.18 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.19 Employees and Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.20 Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 4 Representations and Warranties of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.1 Organization and Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.2 Buyer Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.3 Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.4 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.5 Compliance with Other Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.6 Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 5 Covenants of Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.1 Access to System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.2 Continuity and Maintenance of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.3 Compliance with Contracts and Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.4 Adverse Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.5 Line Extensions and Rebuilds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 6 Other Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.2 HSR Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.3 Required Consents and Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.4 Franchise Transfer Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.5 Employee Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 7 Conditions Precedent to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1 Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.2 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 8 Conditions Precedent to Obligations of Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.1 Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.2 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 9 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
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<TABLE>
<CAPTION>
Page
----
<S> <C>
9.2 Closing Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 10 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.1 Indemnification by Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.2 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.3 Notice and Right To Defend Third-Party Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.4 Notice and Right to Remediate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.5 Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.6 Exclusive Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 11 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.1 Termination Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.2 Manner of Exercise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
11.3 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 12 General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
12.1 Covenant Not To Sue and Nonrecourse to Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
12.2 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
12.3 Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
12.4 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
12.5 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
12.6 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
12.7 Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
12.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
12.9 Entire Understanding; Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
12.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
12.11 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
12.12 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
12.13 Further Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
12.14 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
12.15 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
12.16 Judicial Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
</TABLE>
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EXHIBITS
<TABLE>
<S> <C>
Exhibit A Escrow Agreement
Exhibit B Franchise Consent Form
Exhibit C Assignment, Assumption & Consent - Leases
Exhibit D Assignment, Assumption & Consent - Contracts
Exhibit E Receipt
Exhibit F Bill of Sale
Exhibit G FIRPTA Certificate
Exhibit H Certificate of Sellers
Exhibit I Opinion of Sellers' Counsel
Exhibit J Assumption Agreement
Exhibit K Opinion of Buyer's Counsel
Exhibit L Certificate of Buyer
Exhibit M Post-Closing Escrow Agreement
SCHEDULES
- ---------
Schedule 1 The Businesses (including Rate Schedules)
Schedule 1.5 Assumed Contracts
Schedule 1.18 Vehicles
Schedule 1.19 Excluded Assets
Schedule 1.22 Franchises
Schedule 1.29 Necessary Consents
Schedule 1.34 Required Consents
Schedule 2.3 Purchase Price Allocation
Schedule 3.12 Contracts and Instruments
Schedule 3.13 Real Property
Schedule 3.14 Environmental Disclosure
Schedule 3.17(a) Financial Statements
Schedule 3.17(b) Material Changes
Schedule 3.18 Litigation
Schedule 3.19(a) Employees and Employment Agreement
Schedule 3.19(b) Collective Agreements
Schedule 3.19(c) Employment Benefit Plans
Schedule 6.5(d) Sellers' Welfare Plans
</TABLE>
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<PAGE> 6
ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT is made as of August 27, 1997,
by and between INTERMEDIA PARTNERS OF CAROLINA, L.P., a California limited
partnership ("IP-Carolina"), and ROBIN CABLE SYSTEMS, L.P., a California
limited partnership ("RCS," and together with IP-Carolina, each referred to
herein individually as "Seller," and collectively as "Sellers"), and NORTHLAND
CABLE TELEVISION, INC. ("Buyer").
RECITALS
A. RCS, through its ownership and operation of various assets,
provides cable television and related services to subscribers located in the
vicinities of Aiken, Allendale, Barnwell, Bamberg, Edgefield, McCormick, Saluda
and Ware Shoals, South Carolina, including all franchised communities listed on
SCHEDULE 1 (the "A System").
B. IP-Carolina, through its ownership and operation of various
assets, provides cable television and related services to subscribers located
in the vicinity of Bennettsville, South Carolina, including all franchised
communities listed on SCHEDULE 1 (the "B System") and Greenwood, South
Carolina, including all franchised communities listed on SCHEDULE 1 (the "C
System," and together with the A System and the B System, the "Systems").
C. Sellers desire to sell to Buyer, and Buyer desires to purchase
from Sellers, subject to the terms and conditions contained in this Agreement,
substantially all of the assets, rights, privileges, interests, business and
properties owned, leased, held or utilized by Sellers to operate and maintain
the Systems.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, Sellers and Buyer
agree as follows:
ARTICLE 1
Definitions
As used in this Agreement, the following terms shall have the
following meanings:
1.1 Accounts Payable. The book value of all accounts payable of
the Systems relating to the conduct of the Businesses determined as of the
Closing Date in accordance with GAAP on a basis consistent with the application
of such principles in the preparation of the Financial Statements.
1.2 Accounts Receivable. All accounts receivable of the
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Sellers representing amounts owed to the Sellers in connection with their
operation of the Businesses.
1.3 Affiliate. With respect to any person or entity, any other
person or entity owning a majority interest in or controlling such person or
entity, or owned or controlled by or under common ownership or control with
such person or entity, where "control" (and its corollaries) includes ownership
of interests representing a majority of total voting power in an entity, and
"ownership" (and its corollaries) includes ownership of a majority of the
equity interests in an entity.
1.4 Agreement. This Asset Purchase and Sale Agreement dated as of
August 27, 1997 between Sellers and Buyer, as the same may be amended from time
to time.
1.5 Assumed Contracts. All contracts of the Businesses as set forth
on SCHEDULE 1.5.
1.6 Assets. All of Sellers' right, title and interest in all
properties, privileges, rights, interests and claims, real and personal,
tangible and intangible, of every type and description that are owned, leased,
held for or used exclusively in the Businesses in which Sellers have any right,
title or interest or in which Sellers acquire any right, title or interest on
or before the Closing Date, including Governmental Permits, Intangibles,
Contracts, Equipment and Real Property, but excluding any Excluded Assets.
1.7 Authorities. Any and all approvals, consents, rights,
certificates, orders, franchises, determinations, permissions, licenses,
authorities or grants issued, noticed, declared, designated or promulgated by
any Governmental Authority; excluding, however, the Franchises.
1.8 Basic Subscriber. As of any date and for each Franchise Area
served by the Systems, without duplication, the aggregate of all of the
following which are receiving basic cable television service ("Basic Services")
provided by the Systems: (a) private residential customer accounts that are
billed by individual unit (regardless of whether such accounts are in single
family homes or in individually billed units in apartment houses and other
multi-unit buildings) (excluding Nonstandard Charges (as defined herein)) each
of which shall be counted as one "Basic Subscriber;" and (b) all commercial,
bulk-billed and other accounts not billed by individual unit, such as hotels,
motels, apartment houses and multi-family homes, provided that the number of
"Basic Subscribers" serviced by each such account shall be deemed to be an
amount equal to the quotient of (x) the aggregate monthly Basic Services
revenue and expanded basic cable television service revenue derived by the
Systems from such accounts (excluding any Nonstandard Charges), in each case
for the last calendar month preceding the date of such determination, divided
by (y) the Basic Subscriber Rate in effect on the date of such
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determination. Notwithstanding the foregoing, the term "Basic Subscriber"
shall not include any commercial, residential or other subscriber who (A) has
not paid for at least one (1) month of service, or (B) is more than sixty (60)
days delinquent from the date of billing on five dollars ($5.00) or more due to
either Seller.
1.9 Basic Subscriber Rate. For each Franchise Area, the monthly fees
and charges for the provision of both "basic service" and "expanded basic
service" (as such terms are customarily used in the cable television industry
and excluding any charges for additional outlets and installation fees and
revenues derived from the rental of converters, remote control devices and
other like charges for equipment) charged to customers served by the Systems,
as of the end of the last full month prior to the Closing Date.
1.10 Businesses. The individual cable television businesses
conducted by Sellers on the date of this Agreement through the Systems in the
Franchise Areas, as described on SCHEDULE 1.
1.11 Business Day. Any day other than Saturday, Sunday or a day on
which banking institutions in either San Francisco, California or New York, New
York are required or authorized to be closed.
1.12 Code. The Internal Revenue Code of 1986, as amended.
1.13 Communications Act. The Communications Act of 1934, as amended,
including, but not limited to, by the Cable Communication Policy Act of 1984
and by the Cable Television Consumer Protection and Competition Act of 1992,
and the rules and regulations promulgated thereunder.
1.14 Contracts. Any and all leases of real and personal property,
private easements, rights-of-way, rights of access, contracts for easements,
pole line or pole attachment agreements, joint line agreements, underground
conduit agreements, wire or cable crossing agreements, contracts with
Subscribers, bulk and commercial service agreements relating to the Systems,
and any other agreements with third parties relating to the Systems.
1.15 Current Assets. The sum of (a) Accounts Receivable as of the
Closing Date which have not been outstanding for more than ninety (90) days,
net of any credit balances due to subscribers, and (b) Prepaid Expenses.
1.16 Current Liabilities. The sum of (a) Accounts Payable, (b)
Deferred Revenue, and (c) Other Current Liabilities.
1.17 Deferred Revenue. Liabilities to Subscribers
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representing advance billings for services to be performed by Buyer after the
Closing Date.
1.18 Equipment. All electronic devices, trunk and distribution
coaxial and optical fiber cable, amplifiers, power supplies, conduit, vaults
and pedestals, grounding and pole hardware, Subscriber's devices (including
converters, encoders, transformers behind television sets and fittings),
headend hardware (including origination, earth stations, transmission and
distribution system), test equipment, vehicles and other tangible personal
property owned, leased, used or held for use in the Businesses. SCHEDULE 1.18
lists each vehicle owned, used or held for use in the Businesses.
1.19 Excluded Assets. All (a) insurance policies and rights and
claims thereunder; (b) bonds, letters of credit, surety instruments, notes and
other similar items; (c) cash and cash equivalents; (d) Sellers' rights under
any agreement governing or evidencing an obligation of any Seller for borrowed
money; (e) Sellers' rights under any contract, license, authorization,
agreement or commitment other than those creating or evidencing Assumed
Contracts; (f) claims, rights and interests in and to any refunds for federal,
state or local franchise, income or other taxes or fees (including, without
limitation, copyright fees) of any nature whatsoever relating to such taxes or
fees payable for taxable periods, or portions thereof, ending on or prior to
the Closing Date; (g) assets or properties owned by Sellers that are unrelated
to the Businesses; (h) assets of any Employee Plan or arrangement, except as
expressly provided in Section 6.5; (i) Sellers' names and all trademarks,
servicemarks and copyrights owned by Sellers; (j) Sellers' billing contracts;
provided that Sellers shall offer Buyer billing services related to the
Businesses at Sellers' actual cost at the time of providing such service, for a
period of ninety (90) days following the Closing, which period shall be
extended at Buyer's option for an additional thirty (30) days, and shall
cooperate with Buyer to effect the transition of billing services from Sellers'
service provider to Buyer's service provider; (k) programming and carriage
agreements, except as described on SCHEDULE 6.6; and (l) the assets described
on SCHEDULE 1.19.
1.20 FCC. The Federal Communications Commission or any successor
agency.
1.21 Financial Statements. The financial statements attached as
SCHEDULE 3.17(a) and described in Section 3.17(a).
1.22 Franchises. The franchises set forth on SCHEDULE 1.22 hereof.
1.23 Franchise Areas. The areas in which Sellers are authorized to
provide cable television service under the Franchises, and the areas, if any,
served by the Systems in which Sellers provide cable television service without
a
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Franchise.
1.24 GAAP. Generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
1.25 Governmental Authority. Any nation or government, any state,
province or other political subdivision thereof or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
1.26 Governmental Permits. All franchises, approvals,
authorizations, permits, licenses, easements, registrations, qualifications,
leases and similar rights obtained from any Governmental Authority.
1.27 Intangibles. All intangible assets, including subscriber lists,
accounts receivable, claims (excluding any claims relating to Excluded Assets),
patents, copyrights and goodwill, if any, owned, used or held for use in the
Businesses.
1.28 Legal Rules. The requirements of all federal, state, municipal
or local laws, codes, statutes, ordinances, orders, judgments, decrees,
injunctions, franchises, determinations, approvals, rules, regulations,
permits, licenses, authorizations, certificates, notices, demand letters,
circulars, opinion letters and directions, of all Governmental Authorities.
1.29 Necessary Consents. All material franchises, licenses,
authorizations, approvals and consents required under Governmental Permits,
Contracts or otherwise for (a) Sellers to transfer the Assets and the
Businesses to Buyer, (b) Buyer to conduct the Businesses and to own, lease, use
and operate the Assets at the places and in the manner in which the Businesses
are conducted as of the date of this Agreement and on the Closing Date and (c)
Buyer to assume and perform the Governmental Permits and Contracts. SCHEDULE
1.29 sets forth all Necessary Consents.
1.30 Nonstandard Charges. Any charges for taxes, second connects,
additional outlets, installation fees, deposits and other non- recurring items
and any charges for the rental of converters, remote control devices and other
like charges for equipment.
1.31 Other Current Liabilities. All current liabilities (including,
but not limited to, accrued vacation pay of
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employees of Sellers, subscriber security deposits and customer advance
payments, but excluding (i) Accounts Payable and (ii) Deferred Revenue) of the
Systems relating to the conduct of the Businesses determined as of the Closing
Date in accordance with GAAP on a basis consistent with the application of such
principles in the preparation of the Financial Statements.
1.32 Prepaid Expenses. The book value of prepaid expenses and
miscellaneous prepaids (in each case, only to the extent constituting a current
asset) of the Systems with respect to the Businesses determined as of the
Closing Date in accordance with GAAP on a basis consistent with the application
of such principles in the preparation of the Financial Statements, to the
extent that such prepaid expenses will accrue to the benefit of Buyer upon and
after the Closing Date.
1.33 Real Property. All assets consisting of realty, including
appurtenances, improvements and fixtures located on such realty, and any other
interests in real property, including fee interests in Sellers' offices and
headend sites and leasehold interests and easements, licenses, rights-of-way or
other real property rights used or held for use in the Businesses, but
excluding any Excluded Assets.
1.34 Required Consents. Those Necessary Consents which must be
obtained prior to Closing. SCHEDULE 1.34 sets forth all Required Consents.
1.35 Rules and Regulations. Rules and Regulations of the FCC, as in
effect from time to time.
1.36 Signals. The transmissions, except radio signals (whether
television, satellite or otherwise), of video programming or other information
that the Systems make available to all Subscribers generally.
1.37 Subscriber. A Basic Subscriber of the Systems.
1.38 Subscriber Adjustment. An amount equal to the product of (x)
$1,925 and (y) the difference between 47,000 and the actual number of Basic
Subscribers in the Systems as of the Closing Date if such difference is greater
than 470.
1.39 Systems. The individual cable television reception and
distribution systems operated in the conduct of the Businesses, each of which
is capable of being operated, without modification, as an independent system
without interconnections to other systems.
1.40 Taxes. Any and all governmental or quasi-governmental fees
(including, without limitation, license, filing and registration fees), taxes
(including, without limitation, income, gross receipts, franchise, sales, use,
property, real or personal, tangible or intangible taxes), interest
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equalization and stamp taxes, assessments, levies, imposts, duties, charges,
required contributions or withholdings of any kind or nature whatsoever,
together with any and all penalties, fines or interest thereon. For purposes
of determining any Tax cost or Tax benefit to any person, such amount will be
the actual cost or benefit recognized by such person at the time of actual
payment of the additional Tax or actual recognition of the Tax benefit. In the
event that any payment or other amount is required to be determined on an
after-Tax basis, such payment or other amount will initially be determined
without regard to any Tax cost or Tax benefit not actually recognized
currently, and appropriate adjustments will be made when and to the extent that
such Tax cost or Tax benefit is actually recognized.
1.41 Working Capital Adjustment. The number obtained by subtracting
(x) the sum of the Current Liabilities existing (as defined and determined in
accordance with GAAP) of Seller existing on the Closing Date which constitute
assumed Current Liabilities, from (y) the sum of the Current Assets (as defined
and determined in accordance with GAAP, except that inventory and cash shall
not be included as a current asset) of Sellers on the Closing Date which are
included within the Assets.
1.42 Other Definitions. In addition, the following terms have the
meanings given them in the following sections:
<TABLE>
<CAPTION>
Term Section
- ---- -------
<S> <C>
Adjustment Time 2.3(d)
Buyer's DC Plan 6.5(c)
Buyer's Welfare Plans 6.5(d)
CLI 3.16(a)
Closing 2.6
Closing Date 2.6
COBRA 6.5(d)(ii)(B)
Copyright Act 3.15
Deposit 2.3(c)
Employee Plans 3.19(c)
Employment Transfer Date 6.5(d)
Environmental Law 3.14(b)
ERISA 3.19(c)
ERISA Affiliate 6.5(b)
Final Adjustments Report 2.4(b)
Hazardous Substance 3.14(c)
HSR Act 6.2
HSR Adjustment 6.2
Indemnifiable Damages 10.1(a)
Indemnitee 10.3(a)
Indemnitor 10.3(a)
Lien 3.8
New Employees 6.5(a)
Nonrecourse 12.1(b)
Nontransferring Employees 6.5(a)
Preliminary Adjustments Report 2.4(a)
</TABLE>
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<TABLE>
<S> <C>
Prospective Employees 6.5(a)
Purchase Price 2.3(a)
Sellers' DC Plan 6.5(c)
Sellers' Welfare Plans 6.5(d)(i)
Transaction Document 12.1(a)
</TABLE>
ARTICLE 2
Purchase and Sale
2.1 Purchase and Sale of Assets. Subject to the terms and conditions
hereinafter set forth, Buyer hereby agrees to purchase from Sellers, and
Sellers hereby agree to sell to Buyer, the Assets. Sellers will retain, and
Buyer hereby does not purchase, the Excluded Assets.
2.2 Assumed Obligations. Concurrently with the purchase described in
Section 2.1 and subject to the terms and conditions hereinafter set forth,
Buyer shall assume and agree to pay when due, and perform, those obligations,
but only those obligations, that (i) constitute the Current Liabilities, (ii)
arise on or after the Closing Date under all Franchises and Assumed Contracts,
or (iii) arise out of its ownership and operation of the Assets after the
Closing Date.
2.3 Purchase Price and Payment.
(a) The consideration to be paid for the Assets shall be ninety
million, four hundred seventy-five thousand dollars ($90,475,000) in cash
adjusted as hereinafter provided (the "Purchase Price"). SCHEDULE 2.3 sets
forth the manner in which the Purchase Price is to be allocated among the
Assets. Notwithstanding the foregoing, in the event that after the adjustments
the Purchase Price is less than eighty-five million, nine hundred fifty-one
thousand, two hundred and fifty dollars ($85,951,250), at Seller's option, this
Agreement may be terminated prior to Closing and, if so terminated, the parties
shall have no further rights or obligations hereunder, except for the
respective obligations of the parties under Sections 6.1, 12.1 and 12.14.
(b) On the Closing Date, the Purchase Price shall be:
(i) either
(A) decreased by the Working Capital Adjustment to
the extent it is a negative amount as of the Closing Date; or
(B) increased by the Working Capital Adjustment to
the extent it is a positive amount as of the Closing Date; and
(ii) either increased (up to a maximum of
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$4,523,750) or decreased, as the case may be, for the
Subscriber Adjustment, if any.
(c) To secure Buyer's obligations under this Agreement and the
agreement to be entered into in connection with the acquisition by Buyer of
cable systems located in Royston and Toccoa, Georgia, among others (the
"Royston/Toccoa Sale"), immediately upon execution of this Agreement, Buyer
shall either (i) deposit the amount of $1,000,000 into an escrow account, under
an escrow agreement, the form of which is attached hereto as EXHIBIT A (the
"Escrow Agreement"), or (ii) obtain an irrevocable letter of credit in favor of
the Seller in the amount of $1,000,000 issued by a financial institution
reasonably acceptable to the Seller (in either case, the "Deposit").
(d) All revenues and all expenses arising from the operations of
the Systems until 12:01 a.m. on the Closing Date (the "Adjustment Time") shall
be prorated between Buyer and Sellers as of the Adjustment Time in accordance
with GAAP on the principle that Sellers shall receive all revenues (other than
with respect to Accounts Receivable being purchased by Buyer hereunder) and
shall be responsible for all expenses, costs and liabilities allocable to the
period prior to the Adjustment Time and Buyer shall receive all revenues and
shall be responsible for all expenses, costs and liabilities allocable to the
period after the Adjustment Time.
2.4 Preliminary and Final Adjustments. Preliminary and final
adjustments to the Purchase Price will be determined as follows:
(a) At least ten (10) Business Days prior to the Closing Date,
Sellers will deliver to Buyer a report (the "Preliminary Adjustments Report"),
prepared in good faith and on a reasonable basis and in a manner consistent
with the Financial Statements, setting forth in reasonable detail a pro forma
determination as of the Closing Date of the adjustments and prorations set
forth in Section 2.3. The Preliminary Adjustments Report shall: (i) contain
all information reasonably necessary to determine such adjustments and
prorations and such other information as may be reasonably requested by Buyer;
(ii) be prepared in accordance with GAAP; and (iii) be certified by an
authorized officer of Sellers to be true, correct and complete as of the date
thereof. Within five (5) Business Days after receipt of such report, Buyer
shall give Sellers written notice of any objections. If Buyer makes any such
objections, the parties shall agree on the amount, if any, which is not in
dispute within two (2) Business Days after Sellers' receipt of Buyer's
objections thereto. Any undisputed amounts shall be paid by the party
responsible therefor to the other party upon the Closing, and the remaining
disputed amounts shall be determined in the Final Adjustments Report.
(b) Within sixty (60) days after the Closing Date, Buyer
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shall deliver to Sellers a report (the "Final Adjustments Report"), prepared in
good faith and on a reasonable basis and similarly certified by Buyer, setting
forth in reasonable detail the final determination of all adjustments that were
not calculated as of the Closing Date and containing any corrections to the
Preliminary Adjustments Report.
(c) Within fifteen (15) days after receipt of the Final
Adjustments Report, Sellers shall notify Buyer of its objections, if any. Any
amount which is not in dispute shall, within five (5) Business Days of the
expiration of the review period, be paid in cash by wire or interbank transfer
in immediately available funds as follows: (i) if the Purchase Price calculated
based on the Final Adjustments Report is greater than the Purchase Price
calculated based on the Preliminary Adjustments Report, Buyer shall pay such
difference to Sellers, or (ii) if the Purchase Price is less, Sellers shall pay
such difference to Buyer. In the event any payment required by this Section
2.4(c) or by Section 2.4(d) is not made when due, Sellers or Buyer, as
appropriate, shall make the payment required by this Section 2.4(c) with
interest accruing from the date such payment was due at a rate of ten percent
(10%) per annum.
(d) Any disputed amounts will be determined within ninety (90)
days after the Closing Date by the San Francisco, California office of the
accounting firm of Price Waterhouse, whose determination will be conclusive.
Sellers and Buyer will bear equally the fees and expenses payable to such firm
in connection with such determination. The payment required after
determination of all disputed amounts will be made by the responsible party by
wire transfer of immediately available funds to the other party within three
(3) Business Days after the final determination.
2.5 Disputed Liabilities. If a proration or adjustment to the
Purchase Price is made in Buyer's favor for any liability assumed by Buyer but
is in good faith being contested by Sellers as of the Closing Date, and if
Buyer is relieved of this liability, Buyer shall pay to Sellers or its designee
in cash (by means of wire or interbank transfer in immediately available funds)
an amount equal to the portion of this liability so relieved within five (5)
Business Days after the date Buyer is relieved of this liability. In the event
any payment required by this Section 2.5 is not made by Buyer when due, Buyer
shall make the payment required by this Section 2.5 with interest accruing from
the date Buyer was relieved of such liability at a rate of ten percent (10%)
per annum.
2.6 Completion of Purchase and Sale. The purchase and sale of the
Assets shall be completed in accordance with Article 9 (the "Closing"). Within
five (5) Business Days of fulfillment of all conditions to Closing, Buyer and
Sellers shall mutually agree upon the date of Closing (the "Closing Date"),
which date shall not be later than December 31, 1997.
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The Closing shall take place in the offices of Pillsbury Madison & Sutro LLP,
235 Montgomery Street, San Francisco, California 94104.
ARTICLE 3
Representations and Warranties of Sellers
As a material inducement to Buyer to enter into this Agreement, each
Seller, severally and not jointly, represents and warrants to Buyer the
following:
3.1 Organization and Qualification. Each Seller is a limited
partnership duly organized, validly existing and in good standing under the
laws of California and has all requisite power and authority to own, lease and
use the Assets as they are currently owned, leased and used and to conduct the
Businesses as currently conducted. Each Seller is duly qualified or licensed
to do business and is in good standing under the laws of the State of South
Carolina.
3.2 Sellers' Authority. Each Seller has the partnership right,
power, legal capacity and authority to execute, deliver and (subject to the
receipt of the Necessary Consents) perform its obligations under this Agreement
and the documents, instruments and certificates to be executed and delivered by
Sellers pursuant to this Agreement. The execution and delivery of, and
performance of the obligations contained in, this Agreement by each Seller and
the transactions contemplated hereby have been, and all documents, instruments
and certificates have been or as of the Closing will be, duly authorized by all
necessary partnership action on the part of each Seller.
3.3 Enforceability. The terms and provisions of this Agreement and
all documents, instruments and certificates made or delivered from time to time
by Sellers hereunder and thereunder constitute valid and legally binding
obligations of Sellers, enforceable against Sellers in accordance with the
terms hereof and thereof, except as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
generally the enforcement of creditors' rights and by general principles of
equity.
3.4 Approvals. SCHEDULE 1.29 sets forth all Necessary Consents.
Except for the Necessary Consents and compliance with the HSR Act, the
execution, delivery and performance of this Agreement by Sellers does not
require any material consent which has not been made, given or otherwise
accomplished.
3.5 Compliance with Laws. Each Seller is in material compliance with
all Legal Rules imposed by any Governmental Authority having jurisdiction over
Sellers, the Businesses, the Assets or the Systems, and of any jurisdiction in
which the
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Systems are being operated or conducted, including, but not limited to, the
Communications Act.
3.6 Compliance with Other Instruments.
(a) The execution and delivery of this Agreement and (subject to the
receipt of the Necessary Consents) the consummation of the transactions
contemplated hereunder do not and will not result in a breach or violation of
any term or provision of, or result in the imposition of any Lien upon any
Assets or any properties of Sellers pursuant to, or constitute a breach or
default (including any event that, with the passage of time or giving of
notice, or both, would become a breach or default) under the partnership
agreement of either Seller or under any material contract, agreement,
Authority, Legal Rule, license, lease, indenture, mortgage, loan agreement or
note, as to which either Seller is a party or by which any of the Assets may be
affected, except for such breaches or violations as would not have a material
adverse effect on the Businesses or materially impair the ability of either
Seller to perform its obligations under this Agreement.
(b) Each Seller has complied with all provisions of and is not in
breach or default (including any event that, with the passage of time or giving
of notice, or both, would become a breach or default) under its partnership
agreement or any contract, lease, instrument affecting any parcel of real
property, authority or franchise, or obligation to which it is a party or by
which it is or any of the Assets may be bound or affected, except for such
breaches or violations as would not have a material adverse effect on the
Businesses or materially impair the ability of Sellers to operate their
businesses as presently operated.
3.7 Complete System. The Assets constitute fully operational cable
television systems and include the assets, properties, franchises, licenses,
permits, consents, certificates, authorities, operating rights, leases,
easements, licenses, rights-of-way, contracts, agreements, commitments and
arrangements (excluding programming and carriage agreements) necessary to
operate and maintain the same as operated and maintained on the date hereof.
3.8 Title and Encumbrances. Sellers have good title to and
possession of all of the Assets, free and clear of all Liens, except for the
Permitted Liens. A "Lien" is any interest in property securing an obligation,
whether such interest is based on common law, statute or contract, and
including, but not limited to, any security interest or lien arising from a
mortgage, claim, encumbrance, pledge, charge, easement, servitude, security
agreement, conditional sale or trust receipt or a lease, consignment or
bailment for security purposes. The term "Lien" shall also include
reservations, exceptions, covenants, conditions, restrictions, leases,
subleases, licenses, occupancy agreements, pledges, equities,
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charges, assessments, covenants, reservations, defects in title, encroachments
and other burdens, and other title exceptions and encumbrances affecting
property of any nature, whether accrued or unaccrued, or absolute or
contingent. "Permitted Liens" are (a) Liens for taxes not yet due and payable;
(b) any carrier's, warehousemen's, mechanic's, materialmen's, repairmen's or
other like lien arising in the ordinary course of business; (c) easements,
rights-of-way, restrictions, minor encroachments and other similar nonmonetary
encumbrances (i) incurred in the ordinary course of business, and (ii) which do
not render the Asset subject thereto unusable for the purpose intended,
materially detract from the value of the Asset or interfere with the ordinary
use of the Asset in the ordinary course of business; and (d) in the case of
real property leased to Seller, the rights of the fee owner and any lien
encumbering the fee interest in such property.
3.9 Cable Plant and Homes Passed.
As of the Closing Date, the A System will pass no fewer than
forty-eight thousand three hundred (48,300) homes and will consist of no
greater than eleven hundred seventy (1,170) miles of cable plant, the B System
will pass no fewer than nine thousand ninety (9,090) homes and will consist of
no greater than one hundred eighty (180) miles of cable plant, and the C System
shall pass no fewer than twenty-three thousand seventy-five (23,075) homes and
will consist of no greater than four hundred ninety (490) miles of cable plant.
3.10 Franchises.
(a) SCHEDULE 1.22 lists each Franchise held by Sellers in
connection with the operation or maintenance of the Systems, and the coverage
area serviced thereby.
(b) To Sellers' knowledge, each Franchise is in full force and
effect and no proceeding to revoke, cancel, encumber or adversely affect in any
manner any such Franchise has been initiated or threatened, and Sellers are in
material compliance therewith.
3.11 Authorities. Sellers have all Authorities that are necessary to
carry on the business of the Systems as conducted on the date hereof, except
for such Authorities the failure of which to obtain would not have a material
adverse effect on the Systems. To Sellers' knowledge, each such Authority is
in full force and effect and no proceeding to revoke, cancel, encumber or
adversely affect in any manner any such Authority has been initiated or
threatened, and Sellers are in material compliance therewith.
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3.12 Contracts. SCHEDULE 3.12 lists all presently effective
Contracts that are material to the conduct of the Businesses as they are now
conducted. Copies of such Contracts as currently in effect have been, or prior
to the Closing will be, made available to Buyer. To Sellers' knowledge, each
Contract is in full force and effect and no action to revoke, cancel or
adversely affect in any manner any such Contract has been initiated or
threatened, and Sellers are in material compliance therewith.
3.13 Real Property.
SCHEDULE 3.13 contains a list of all Real Property owned in fee or
leased by Sellers which is used for headend equipment, microwave equipment and
satellite earth receiving stations and related facilities, tower and antenna
sites and office facilities in connection with the Systems.
3.14 Environmental Laws.
(a) Except as disclosed on SCHEDULE 3.14, to Sellers' Actual
Knowledge: (i) none of Sellers' operations on the Real Property is currently
subject to any judicial or administrative proceeding alleging the violation of
an Environmental Law; (ii) none of the Real Property is the subject of any
investigation by any Governmental Authority concerning any release of any
Hazardous Substance on the Real Property; (iii) Sellers have not filed any
written notice under any Environmental Law indicating past or present
treatment, storage or disposal of a hazardous waste on the Real Property or
reporting a spill or release of a Hazardous Substance into the environment from
its operations on the Real Property; (iv) Sellers have no material contingent
liability in connection with any release of any Hazardous Substance into the
environment from the Real Property; (v) no lien in favor of any Governmental
Authority for (A) any liability under Environmental Laws, or (B) damages
arising from or costs incurred in response to a release of any Hazardous
Substance into the environment has been filed or attached to any of the Real
Property; and (vi) no underground storage tanks are currently located on the
Real Property and no building or other structure on the Real Property contains
friable asbestos.
(b) "Environmental Law" means a law, regulation, statute or
ordinance pertaining to land use, air, soil, surface water, groundwater
(including the protection, cleanup, removal, remediation or damage thereof)
including, without limitation, the following laws: (i) Clean Air Act (42 U.S.C.
Section 7401, et seq.); (ii) Clean Water Act (33 U.S.C. Section 1251, et
seq.); (iii) Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et
seq.); (iv) Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. Section 9601, et seq.); (v) Safe Drinking Water Act (42 U.S.C.
Section 300f, et seq.); and (vi) Toxic Substances Control Act (15 U.S.C.
Section 2601, et seq.).
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(c) "Hazardous Substance" means any matter that is designated or
regulated as a pollutant, contaminant or hazardous or toxic substance,
constituent or waste under any Environmental Law.
(d) "Sellers' Actual Knowledge" means that Robert J. Lewis or
Rodney M. Royse has current actual knowledge of the accuracy of such statement,
without any duty of investigation or inquiry.
3.15 Carriage of Signals and Channel Capacity. Sellers have the
legal right and authority, including (without limitation) all necessary
authority from the FCC and the requisite compulsory copyright license under
section 111 of Title 17 of the United States Code, as amended, and all rules
and regulations promulgated thereunder, as amended (the "Copyright Act"), to
carry and use in the conduct of the Businesses all of the Signals. Other than
requests for network nonduplication and syndex protection, no written notices
have been received by Sellers from the FCC or the United States Copyright
Office challenging or questioning the right of Sellers or the Systems to carry
or furnish any of the Signals.
3.16 FCC and Copyright.
(a) Sellers have Cumulative Leakage Index, as defined by the Rules
and Regulations ("CLI"), monitoring equipment which is required by the Rules
and Regulations, and have in connection with their CLI obligations under the
Rules and Regulations (i) maintained appropriate log books and other
recordkeeping, and (ii) filed all annual FCC Form 320s with the FCC.
(b) Sellers have made all material submissions (including, without
limitation, registration statements) required under the Communications Act.
Sellers have delivered to Buyer complete and correct copies of all reports and
filings made or filed pursuant to the Communications Act with respect to the
Systems, a completed and accurate Form 393, Form 1200 Series or other FCC rate
document for the Systems, and all notices alleging noncompliance with the
Communications Act or the Franchises. Sellers have made all material filings
required to be made with the FCC, including cable television registration
statements, annual reports and aeronautical frequency usage notices. Sellers
have all material FCC licenses necessary to operate the Systems and operate
such licensed facilities in conformance with the terms and conditions of such
licenses. The Systems are in compliance with all "must carry" requirements and
have received all retransmission consents.
(c) Sellers have deposited with the United States Copyright Office
all statements of account and other documents and instruments, and paid all
royalties, supplemental royalties, fees and other sums to the United States
Copyright
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Office required under the Copyright Act with respect to the business and
operations of the Systems as are required to obtain, hold and maintain the
compulsory copyright license for cable television systems prescribed in section
111 of the Copyright Act.
3.17 Profit and Loss Statements.
(a) The profit and loss statements with respect to the Systems
furnished by Sellers to Buyer as SCHEDULE 3.17(a), which shall include the
profit and loss statements for the year ended December 31, 1996 (the "Financial
Statements") (other than information described as estimated) are (i) true,
complete and correct in all material respects for the respective dates and
periods thereof, subject to changes resulting from normal audit and year-end
adjustments; and (ii) prepared in accordance with GAAP (provided that there are
no footnotes and accompanying balance sheets, statement of sources and uses of
funds or statements of stockholders' equity), in each case consistently applied
throughout the applicable period.
(b) Except as disclosed on SCHEDULE 3.17(b), since June 30, 1997,
there has been no material adverse change in the condition, financial or
otherwise, results of operations, revenues, expenses, gross operating profits,
assets or liabilities (contingent or otherwise) of the Businesses.
3.18 Litigation. Except as set forth on SCHEDULE 3.18, (a) there is
no material claim, grievance, action, proceeding or governmental investigation
pending or, to Sellers' knowledge, threatened against Sellers or affecting any
of the Assets or the Systems; and (b) there is no material outstanding or
unsatisfied judgment, order or decree to which either Seller is a party or
which involves the transactions contemplated herein.
3.19 Employees and Employee Benefits.
(a) Employment Agreements. SCHEDULE 3.19(a) sets forth a list of
all employees of the Systems as of June 30, 1997 and the position and base
compensation paid or payable to each such individual. Except as described on
SCHEDULE 3.19(a), neither Seller is a party to any written employment contract,
agreement, commitment or arrangement with any individual identified on SCHEDULE
3.19(a).
(b) Collective Agreements. Except as described in SCHEDULE
3.19(b), (i) neither Seller is party to or subject to any labor union or
collective bargaining agreement with respect to any employee of the Systems,
(ii) neither Seller is party to any labor or employment dispute as it relates
to the Systems and their employees, and (iii) to the knowledge of Sellers, no
labor union or bargaining agent holds bargaining rights with respect to any
employee of the Systems or has applied or indicated an intention to apply to be
certified as the bargaining agent of any employee of the Systems.
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(c) Employee Benefit Plans. SCHEDULE 3.19(c) lists each pension
benefit, welfare benefit, stock option, stock purchase, disability, vacation
pay, incentive bonus, severance pay, deferred compensation, supplemental income
or other employee benefit plan, policy or arrangement or agreement, including
each "employee benefit plan" within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), maintained by or
contributed to by the Sellers covering current or former employees of the
Systems or their dependents or survivors (collectively referred to as "Employee
Plans"). Sellers have provided or, upon Buyer's request, will provide or make
available to Buyer prior to the Closing Date complete, accurate and current
copies of the plan document(s) of each Employee Plan, summary plan descriptions
and other descriptive materials provided to employees and, in the case of an
Employee Plan intended to qualify under section 401(a) of the Code, a copy of
the most recent Internal Revenue Service determination letter of such Employee
Plan's qualified status.
(d) Employee Benefit Plan Compliance. No material liabilities,
other than for payment of benefits in the ordinary course, have been incurred
with respect to the Employee Plans. Having made due inquiry, Sellers:
(i) Know of no circumstances relating to an Employee Plan
intended to qualify under section 401(a) of the Code that would likely
be treated by the Internal Revenue Service as a disqualifying defect;
(ii) Know of no facts reasonably likely to result in any
material liability (whether or not asserted as of the date hereof) of
Sellers arising by virtue of any event, act or omission occurring
prior to the Closing Date with respect to any Employee Plan; and
(iii) Know of no liens under Code section 412(n) or ERISA
section 4069(a), nor liabilities under ERISA section 4069(a) or
4201(a), in effect with respect to any Employee Plan that would have a
material adverse effect on the Assets, and know of no facts reasonably
likely to result in the assertion of any such liens or liabilities.
3.20 Commissions. Neither Seller has entered into an agreement,
commitment or obligation with regard to any brokerage commission or finder's
fee which would be payable by Buyer arising out of the execution, delivery or
performance of this Agreement or the transactions contemplated hereby. Sellers
have employed Daniels & Associates and will be responsible for their fees and
expenses.
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ARTICLE 4
Representations and Warranties of Buyer
As a material inducement to Sellers to enter into this Agreement,
Buyer represents and warrants to Sellers the following for the benefit of
Sellers:
4.1 Organization and Qualification. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Washington and, prior to Closing, will be authorized to transact business in
all states in which the Assets are located. Buyer has all necessary corporate
power and authority to own, lease and utilize its properties and assets and to
engage in the business or businesses in which it is presently engaged and in
the places where such property and assets are now owned, leased or utilized or
as such business is now conducted.
4.2 Buyer Authority. Buyer has the corporate right, power, legal
capacity and authority to execute, deliver and perform its obligations under
this Agreement and the documents, instruments and certificates to be executed
and delivered by Buyer pursuant to this Agreement. The execution, delivery and
performance of this Agreement by Buyer and the transactions contemplated hereby
have been, and all documents, instruments and certificates have been or as of
the Closing will be, duly authorized by all necessary corporate action on the
part of Buyer.
4.3 Enforceability. The terms and provisions of this Agreement and
all documents, instruments and certificates made or delivered from time to time
by Buyer hereunder and thereunder constitute valid and legally binding
obligations of Buyer enforceable against Buyer in accordance with the terms
hereof and thereof, except as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
generally the enforcement of creditors' rights and by general principles of
equity.
4.4 Approvals. Except for compliance with the HSR Act, the
execution, delivery and performance of this Agreement by Buyer and the
consummation by Buyer of the transactions contemplated hereby do not require
any material consent which consent has not been made, given or otherwise
accomplished and satisfactory evidence thereof has been delivered to Sellers.
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4.5 Compliance with Other Instruments.
(a) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereunder do not and will not result in a
breach or violation of any term or provision of Buyer's articles of
incorporation or bylaws or under any contract, agreement, Authority, Legal
Rule, license, lease, indenture, mortgage, loan agreement or note, as to which
Buyer is a party, except for such breaches or violations as would not
materially impair the ability of Buyer to perform its obligations under this
Agreement.
(b) Buyer has complied with all provisions of and is not in breach or
default (including any event that, with the passage of time or giving of
notice, or both, would become a breach or default) under its articles of
incorporation or bylaws or any contract, lease, instrument affecting any parcel
of real property, authority or franchise, or obligation to which it is a party
or by which it is bound or affected, except for such breaches or defaults as
would not materially impair the ability of Buyer to operate the Businesses as
presently operated.
4.6 Commissions. Buyer has entered into no agreement, commitment or
obligation with regard to any brokerage commission or finder's fee which would
be payable by Sellers arising out of the execution, delivery or performance of
this Agreement or the transactions contemplated hereby.
ARTICLE 5
Covenants of Sellers
5.1 Access to System. Prior to the Closing Date, Sellers shall give
Buyer's employees and representatives, during normal business hours and with
reasonable prior notice, access to all of the properties, books, accounts,
records, contracts, agreements, commitments, arrangements and documents of or
relating to the Assets and the Systems, and shall permit the making of copies
or extracts thereof. Prior to the Closing Date, Sellers shall furnish to Buyer
and its representatives such existing documentation concerning the operation
and financial condition of the Assets and the Systems as Buyer or any such
representative shall reasonably request.
5.2 Continuity and Maintenance of Operations. Except as to actions
which Buyer has been advised and to which it has consented in writing and
except as specifically permitted or required by this Agreement or required by
any Legal Rule, Sellers shall from the date hereof to the Closing Date, operate
the Businesses in the ordinary course consistent with past practices, and use
reasonable efforts to preserve any beneficial business relationships with
customers, suppliers and others having business dealings with it that are
material to
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the Businesses and use reasonable efforts to keep available to Buyer the
services of present employees of the Systems.
5.3 Compliance with Contracts and Laws. From the date hereof to the
Closing Date, Sellers shall keep in full force and effect and shall comply in
all material respects with all Franchises, Authorities and material Contracts
to which it is a party or by which it or the Assets may be bound or affected
and which are material to the Businesses.
5.4 Adverse Changes. From the date hereof to the Closing Date,
Sellers shall promptly notify Buyer in writing of any material adverse
developments affecting the Systems which become known to Sellers, including,
without limitation: (a) any material adverse change in the condition,
financial or otherwise, of the Systems; (b) any damage, destruction or loss
(whether or not covered by insurance) materially adversely affecting any of the
Assets or the Systems; or (c) any material notice of violation, forfeiture or
complaint under any Franchise.
5.5 Line Extensions and Rebuilds. All line extensions made by
Sellers from the date hereof until the Closing Date shall be built and spaced
to operate at a minimum of 450 MHz. On the Closing Date, Buyer shall reimburse
Sellers for any and all rebuild expenditures incurred by Sellers and approved
by Buyer from the date hereof until the Closing Date.
5.6 Taxes.
(a) Sellers agree to timely file all sales or transfer tax returns
with respect to sales, including the sale of Assets hereunder, occurring on or
before the Closing Date, in connection with the Systems, and Sellers shall
timely pay all sales or transfer taxes applicable to the sales reported on such
tax returns, provided that Buyer cooperates, to the extent required, in the
preparation and execution of such tax returns and related filing.
(b) Sellers and Buyer shall cooperate fully as and to the extent
reasonably requested by the other party in connection with any audit,
litigation or other proceeding with respect to Taxes. Such cooperation shall
include the retention and (upon the other party's request) the provision of
records and information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder. Sellers and Buyer agree (i) to retain all books
and records with respect to Tax matters pertinent to the Assets relating to all
taxable periods until the statute of limitations (including any extensions) as
to any taxable year that may be affected thereby shall have run, (ii) to abide
by all record retention agreements entered into with any Governmental
Authority, and (iii) to give the other party reasonable written notice prior
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to destroying or discarding any such books and records and, if one party so
requests, shall allow the requesting party to take possession of such books and
records proposed for destruction or discard.
(c) No new elections with respect to Taxes or any changes in current
elections with respect to Taxes affecting the Assets shall be made after the
date of this Agreement without the prior written consent of Buyer.
ARTICLE 6
Other Covenants
6.1 Confidentiality.
(a) Neither of the parties hereto shall make any public
announcement regarding the transactions contemplated in this Agreement without
the prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that either of the parties
may at any time make announcements which are required by applicable law so long
as the party so required to make an announcement promptly upon learning of such
requirement notifies the other party of such requirement and discusses with the
other party in good faith the exact wording of any such announcement.
(b) Each party shall keep strictly confidential any and all
information furnished to it or to its Affiliates, agents or representatives in
the course of negotiations relating to this Agreement or any transaction
contemplated by this Agreement, and the business and financial reviews and
investigation conducted by such party in connection with this Agreement. Each
party has instructed its officers, employees and other representatives having
access to such information of such party's obligation of confidentiality. If
this Agreement is terminated, each party shall promptly deliver to the other
party or certify as to the destruction of all originals and copies (including
all notes, extracts and computer disks) of documents, work papers and other
written material concerning or obtained from such other party or its agents,
employees or representatives in connection with such negotiations and business
and financial reviews and investigations, whether so obtained before or after
the execution hereof. Neither party shall use any information so obtained
except in connection with the transactions contemplated by this Agreement or
disclose or divulge such information to any other person, and each party will
keep confidential any information so obtained.
(c) Notwithstanding the foregoing, either party may disclose any
information which such party is obligated under this Section 6.1 to keep
confidential after consultation with the other party as follows:
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(i) to which the other party consents in writing;
(ii) to representatives, agents, consultants and attorneys of
the disclosing party who need to know such confidential information
for the purpose of assisting or advising such party, provided that the
disclosing party informs each such representative, agent, consultant
and attorney of the confidential nature of such information and
requires them to be bound by the provisions of this Section 6.1 prior
to disclosure;
(iii) to third parties whose consent or approval is required
for consummating the transactions contemplated herein;
(iv) in compliance with applicable Legal Rules; or
(v) in order to use such information as evidence in or in
connection with any pending or threatened litigation related to this
Agreement or any transaction contemplated hereunder;
but in each case only to the extent such disclosure is necessary in connection
with the purpose for which disclosure is permitted. The obligations of
confidentiality set forth herein shall not apply to information generally
available to the public or in the possession of the receiving party on a
non-confidential basis.
6.2 HSR Notification. As soon as practicable, if required by
applicable Legal Rules, Sellers and Buyer shall complete and file, or cause to
be completed and filed, any notification and report required to be filed under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"). Each of the parties will take or cause to be taken any additional
action that may be necessary, proper or advisable, will cooperate to prevent
inconsistencies between their respective filings and will furnish to each other
such necessary information and reasonable assistance as the other may
reasonably request in connection with its preparation of necessary filings or
submissions under the HSR Act. Buyer, on the one hand, and Sellers, on the
other hand, shall use commercially reasonable efforts (including the filing of
a request for early termination) to obtain the early termination of the waiting
period under the HSR Act. Buyer and Sellers shall share equally all HSR filing
fees and any other fees to a governmental authority in connection with the
transfer of the Assets.
6.3 Required Consents and Estoppel Certificates. Sellers will use
reasonable commercial efforts to obtain, as soon as possible, all the Required
Consents, in form and substance
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satisfactory to Buyer. Required Consents will be deemed to be satisfactory to
Buyer if they are similar in all material respects to the applicable form
attached as EXHIBIT B, C OR D. Sellers will provide copies of all
correspondence to or from, any parties in connection with the Required
Consents. Buyer will cooperate with Sellers to obtain all Required Consents.
Buyer, on the one hand, and Sellers, on the other hand, shall bear equally any
costs or fees in connection with obtaining the Required Consents.
6.4 Franchise Transfer Expenses.
Buyer and Sellers shall share equally all administrative fees and
expenses, if any, required by any Governmental Authority in connection with the
transfer to Buyer of all Franchises.
6.5 Employee Matters.
(a) Employment. SCHEDULE 3.19(a) sets forth a list of all
employees of the Systems as of June 30, 1997, showing then-current positions
and rates of compensation. At least forty-five (45) days prior to the Closing,
Buyer shall notify Sellers of the employees ("Prospective Employees") it
intends to hire and shall offer employment as of the Closing Date to all
Prospective Employees for a position with at least comparable responsibility.
Prospective Employees who accept Buyer's offer of employment and become
employees of Buyer within six (6) months of the Closing Date are referred to
herein as "New Employees" and all other employees of the Systems are referred
to as "Nontransferring Employees." Subject to the provisions of this Section
6.5 as to any particular benefit, Buyer shall provide New Employees with
compensation and employee benefits that are substantially similar to those
provided to similarly situated Buyer employees. Buyer shall indemnify and hold
Sellers and their Affiliates harmless from and against all claims, expenses
(including reasonable attorneys' fees), loss and liability arising either (i)
out of Sellers' submission of personnel records or information to Buyer about
the employees of the Systems, or (ii) with respect to the New Employees'
employment with Buyer after the Closing. Except as otherwise specifically
provided in this Agreement, Sellers and their Affiliates shall indemnify and
hold Buyer and its Affiliates harmless from and against all claims, expenses
(including reasonable attorneys' fees), loss and liability arising out of the
New Employees' and Nontransferring Employees' employment with Sellers or their
Affiliates prior to the Closing.
(b) Service Credit for New Employees. Subject to the provisions of
this Section as to any particular benefit, Buyer shall recognize all prior
service of New Employees with the Sellers and any Affiliate that is aggregated
with the Sellers under section 414(b), 414(c) or 414(m) of the Code ("ERISA
Affiliate") for tenure purposes, and for all benefit plan purposes, other than
benefit accrual under a defined benefit
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plan, at least to the extent recognized under the comparable Sellers employee
benefit plan as in effect on the Closing Date, but without regard to any
amendment increasing such service adopted or made effective less than twelve
(12) months prior to the Closing Date. On or before the Closing Date, Sellers
shall provide Buyer with a list setting forth the service accrued by each
Prospective Employee. Sellers agree that Buyer shall be under no obligation to
and shall not assume sponsorship of any Employee Plan.
(c) Qualified Defined Contribution Plan. Each Seller is currently
a participating company in the InterMedia Partners Tax-Deferred Savings Plan
("Sellers' DC Plan"). New Employees shall not accrue any further benefits
under the Sellers' DC Plan as of any date after the Closing (unless employed by
either Seller or its ERISA Affiliates).
Buyer is a participating company in the Northland Telecommunications
Corporation 401(k) Plan ("Buyer's DC Plan"). The account balances of New
Employees in the Sellers' DC Plan shall be transferred to the Buyer's DC Plan
as soon as reasonably practicable following the Closing in accordance with this
Subsection 6.5(c). Buyer represents and warrants that the Buyer's DC Plan and
related trust meet the requirements for qualification under section 401 and
related sections of the Code and shall continue to meet such requirements as of
the date of the transfer described in this Subsection 6.5(c). Prior to such
transfer, but in no event later than two (2) months after the Closing Date,
Buyer shall provide to Sellers satisfactory evidence that the Buyer's DC Plan
complies with such requirements, including copies of Buyer's DC Plan and the
most recent determination letter issued by the Internal Revenue Service (and
any subsequent determination letter application filed with the Internal Revenue
Service).
As soon as reasonably practicable after the Closing and provision of
satisfactory evidence pursuant to this Subsection 6.5(c), the trustee of
Sellers' DC Plan shall transfer to the trustee of Buyer's DC Plan cash and/or
assets, including plan loan obligations, equal to the value of the account
balances of each New Employee under Sellers' DC Plan as of the last valuation
date immediately preceding the transfer date, which amount shall be credited to
the respective account or accounts under Buyer's DC Plan. The foregoing
notwithstanding, the amount to be so transferred with respect to any New
Employee shall be reduced by any withdrawals and other distributions made from
Sellers' DC Plan to the New Employee between such valuation date and such
transfer date.
Buyer agrees that once the transfers made herein have been made, the
sole and exclusive responsibility for providing the benefits accrued by the New
Employees under Sellers' DC Plan as of the transfer date and transferred to
Buyer's DC Plan shall be that of Buyer's DC Plan and Buyer.
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(d) Welfare Plans. Each New Employee shall be eligible for
coverage as of the later of the Closing Date or the date on which he or she
becomes a New Employee (the "Employment Transfer Date") under any medical,
dental, vision, prescription drug, life insurance and other welfare benefit
plans (within the meaning of section 3(1) of ERISA) maintained by Buyer for its
employees ("Buyer's Welfare Plans"). Buyer agrees to (i) waive any waiting
periods and preexisting condition limitations in Buyer's Welfare Plans, except
to the extent coverage would have been denied or restricted on a similar basis
under the welfare benefit plans of Sellers for employees of the Systems
("Sellers' Welfare Plans") and (ii) coordinate deductibles, maximum benefit
restrictions and "out-of-pocket" maximums so that (A) New Employees receive
credit toward any deductibles under Buyer's Welfare Plans for deductibles paid
under the Sellers' Welfare Plans during the coverage year of the Buyer's
Welfare Plans in which the Employment Transfer Date occurs and (B) New
Employees receive credit for eligible claims incurred under the Sellers'
Welfare Plans during the coverage year of the Buyer's Welfare Plans in which
the Employment Transfer Date occurs toward any "out-of-pocket" maximums under
Buyer's Welfare Plans. As soon as reasonably practicable after the Closing
Date, Sellers shall prepare and deliver to Buyer SCHEDULE 6.5(d), setting forth
the information needed for Buyer to comply with the preceding sentence.
Sellers will pay or cause to be paid all eligible unpaid claims incurred by New
Employees prior to the Employment Transfer Date and which are timely submitted
for reimbursement in accordance with the Sellers' Welfare Plans. Sellers will
be responsible for providing continuation health care ("COBRA") coverage as
required by section 4980B of the Code and sections 601-608 of ERISA to or with
respect to any of Sellers' employees who incurs a "qualifying event" prior to
the Employment Transfer Date, including a qualifying event that occurs as a
result of the transaction contemplated by this Agreement. Buyer will be
responsible for providing COBRA coverage to or with respect to any New Employee
who incurs a "qualifying event" after the Employment Transfer Date.
(e) Vacation. As of the Closing Date, Buyer shall assume Sellers'
liability for each New Employee's vacation pay for up to and including four
weeks of vacation accrued under the Sellers' vacation policy but not taken
before the Closing Date. The aggregate dollar value of the liabilities so
assumed by Buyer shall be an "Other Current Liability."
(f) Sick Leave. As of the Closing Date, Buyer shall assume
Sellers' liability for each New Employee's sick (short-term disability) days
for up to and including ten (10) days of sick leave accrued under the Sellers'
sick leave policy but not taken before the Closing Date. The aggregate dollar
value of the liabilities so assumed by Buyer shall be an "Other Current
Liability."
(g) General. Sellers and Buyer shall give any notices
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required by law and take whatever other actions with respect to the plans
described in this Section as may be necessary to carry out the arrangements
described in this Section 6.5. Sellers and Buyer shall provide each other with
such plan documents and descriptions, employee data and other information as
may reasonably be required to carry out the arrangements described in this
Section. If any of the arrangements in this Section is determined by the
Internal Revenue Service or other applicable governmental authority, or by a
court of competent jurisdiction, to be prohibited by law, Sellers and Buyer
shall modify such arrangement to as closely as possible retain the intent of
the parties, as reflected herein, in a manner that is not so prohibited.
(h) No Third Party Beneficiaries. Except as set forth in Section
10.2, nothing in this Section 6.5 or elsewhere in this Agreement shall be
deemed to make any employee of Sellers a third party beneficiary of this
Agreement.
6.6 Programming Services. As of the Closing and notwithstanding
anything to the contrary contained herein, Buyer shall have entered into
programming agreements with each of TV Land, Home Shopping Network and TV Food
which provide for carriage of such programming to those customers of the System
as are currently receiving such programming. In the event that, as of the
Closing Date, Buyer has not entered into such an agreement with TV Land, Buyer
shall pay Sellers forty thousand six hundred twenty-two dollars ($40,622) in
cash.
ARTICLE 7
Conditions Precedent to Obligations of Buyer
7.1 Conditions Precedent. The obligations of Buyer to consummate the
transactions contemplated on the Closing Date are subject to the satisfaction,
on or before the Closing Date, of all the following conditions:
(a) If required under applicable Legal Rules, all filings required
under the HSR Act shall have been made and the applicable waiting period shall
have expired or been earlier terminated without the receipt of any objection or
the commencement or threat of any litigation by a Governmental Authority of
competent jurisdiction to restrain the consummation of the transactions
contemplated by this Agreement.
(b) Sellers shall have performed and complied in all material
respects with all covenants, conditions and obligations required by this
Agreement to be performed or complied with by Sellers on or before the Closing
Date.
(c) All representations and warranties of Sellers, including, without
limitation, those made to the knowledge of
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Sellers, contained in this Agreement, shall be true, correct and complete in
all material respects on and as though made on the Closing Date.
(d) Each of the Franchises transferred pursuant to this Agreement and
listed on SCHEDULE 1.22 hereof shall have a term expiring no earlier than one
(1) year after the Closing Date.
(e) Sellers shall have obtained and delivered to Buyer all Required
Consents.
(f) As of the Closing Date, no action or proceeding shall be
completed, pending or threatened against Buyer or Seller that has or may result
in a judgment, decree or order that would prevent or make unlawful the
consummation of the transactions under this Agreement or have a material
adverse effect on the Systems and there shall be in effect no order restraining
or prohibiting the consummation of the transactions contemplated by this
Agreement nor any proceedings pending with respect thereto.
(g) Sellers shall have tendered to Buyer all documents which Sellers
are required by Section 9.2(a) to deliver to Buyer.
7.2 Waiver. Buyer may waive any or all of the conditions set forth
in Section 7.1 hereof in whole or in part; however, no such waiver of a
condition shall constitute a waiver by Buyer of any of its other rights or
remedies under this Agreement or otherwise at law or in equity if Sellers
should be in default of any of the covenants, agreements, representations or
warranties of Sellers under this Agreement.
ARTICLE 8
Conditions Precedent to Obligations of Sellers
8.1 Conditions Precedent. The obligations of Sellers to consummate
the transactions contemplated on the Closing Date are subject to the
satisfaction, on or before the Closing Date, of all the following conditions:
(a) If required under applicable Legal Rules, all filings required
under the HSR Act shall have been made and the applicable waiting period shall
have expired or been earlier terminated without the receipt of any objection or
the commencement or threat of any litigation by a Governmental Authority of
competent jurisdiction to restrain the consummation of the transactions
contemplated by this Agreement.
(b) Buyer shall have performed and complied in all material respects
with all covenants, conditions and obligations required by this Agreement to be
performed or complied with by Buyer on or before the Closing Date.
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(c) All representations and warranties made by Buyer, including,
without limitation, those made to the knowledge of Buyer, contained in this
Agreement shall be true, correct and complete in all material respects at and
as of the Closing Date as though made on such date.
(d) Sellers shall have obtained all Required Consents, provided that
this condition shall be deemed to be satisfied as to Sellers with respect to
any Required Consent if Buyer at or prior to Closing waives the requirement
that such consent be obtained prior to Closing.
(e) The closing of the Royston/Toccoa Sale shall have occurred or
will occur simultaneously with the Closing hereunder.
(f) As of the Closing Date, no action or proceeding shall be
completed, pending or threatened against Sellers or Buyer that has or is likely
to result in a judgment, decree or order that would prevent or make unlawful
the consummation of the transactions under this Agreement and there shall be in
effect no order restraining or prohibiting the consummation of the transactions
contemplated by this Agreement nor any proceedings pending with respect
thereto.
(g) Buyer shall have tendered to Sellers the Purchase Price and all
documents which Buyer is required by Section 9.2(b) to deliver to Sellers.
8.2 Waiver. Sellers may waive any or all of such conditions set
forth in Section 8.1 hereof in whole or in part; however, no such waiver of a
condition shall constitute a waiver by Sellers of any of their other rights or
remedies under this Agreement or otherwise at law or in equity if Buyer should
be in default of any of the covenants, agreements, representations or
warranties made by Buyer under this Agreement.
ARTICLE 9
Closing
9.1 Closing. The Closing shall take place on the Closing Date at the
place set forth in Section 2.6. At the Closing, each of the parties shall take
all action and deliver all documents, instruments, certificates, agreements and
other items as required under this Agreement in order to perform, fulfill and
observe all covenants, conditions and agreements on its part to be performed,
fulfilled and observed at or prior to the Closing Date (and not theretofore
accomplished) and cause all conditions precedent to the other party's
obligations hereunder to be satisfied in full.
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9.2 Closing Documents.
(a) At the Closing, Sellers shall deliver to Buyer all of the
following:
(i) a certificate of each Seller that all appropriate action
authorizing the execution, performance and delivery of this Agreement
has been taken;
(ii) a copy of each instrument pursuant to which a
Governmental Authority or other person consents to the transfer of the
Franchise which it issued, substantially in the form of EXHIBIT B;
(iii) wire transfer instructions for the Purchase Price and a
receipt, substantially in the form of EXHIBIT E, for the Purchase
Price;
(iv) a bill of sale, substantially in the form of EXHIBIT F;
(v) for each parcel of Real Property a deed in the form
customarily used in the jurisdiction where the real property is
located;
(vi) Certification of Nonforeign Status for each Seller
pursuant to section 1.1445-2(b)(2) of the United States Treasury
Income Tax Regulations, substantially in the form of EXHIBIT G;
(vii) for each lease of real property listed on SCHEDULE 3.13
for which a consent is required, an assignment, assumption and
consent, if required, substantially in the form of EXHIBIT C, duly
executed by the relevant Seller and the third party, if any, whose
consent is required for the assignment of such lease;
(viii) for each Contract the assignment of which requires a
Required Consent, an assignment, assumption and consent substantially
in the form of EXHIBIT D, duly executed by the relevant Seller and the
third party to such Contract;
(ix) documents of title for any motor vehicles included
within the Assets;
(x) a certificate of each Seller, substantially in the form
of EXHIBIT H;
(xi) a written opinion dated the Closing Date, from Pillsbury
Madison & Sutro LLP, counsel to Sellers, in the form annexed hereto as
EXHIBIT I;
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(xii) all data, books and records which relate primarily to
the Systems and the Assets;
(xiii) a Certificate of Good Standing for each Seller
certified to by the Secretary of State of the State of California and
a Certificate of Qualification certified to by the Secretary of State
of the State of South Carolina;
(xiv) such other documents and certificates as Buyer may
reasonably request.
(b) At the Closing, Buyer shall deliver to Sellers the following
documents:
(i) a Certificate of Good Standing of Buyer certified to by
the Secretary of State of the State of Washington and a Certificate of
Qualification of Buyer certified to by the Secretary of State of the
State of South Carolina;
(ii) a Certificate of Buyer that all appropriate action
authorizing the execution, performance and delivery of this Agreement
has been taken;
(iii) an assumption agreement, substantially in the form of
EXHIBIT J and an executed counterpart of each assignment, assumption
and consent delivered by Sellers pursuant to and in accordance with
Section 9.2(a) hereof;
(iv) a written opinion dated the Closing Date, from Buyer's
counsel, in the form annexed hereto as EXHIBIT K;
(v) a certificate of Buyer, substantially in the form of
EXHIBIT L;
(vi) a wire transfer of the Purchase Price pursuant to
instructions received from Sellers; and
(vii) such other documents and certificates as Sellers may
reasonably request.
ARTICLE 10
Indemnification
10.1 Indemnification by Sellers.
(a) Each Seller agrees severally, and for its own account only, to
indemnify Buyer and hold it harmless on an after-Tax basis, from any and all
losses, liabilities, claims, suits, proceedings, demands, judgments, damages,
expenses and costs,
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including, without limitation, counsel fees and disbursements, expert fees and
costs and expenses incurred in the investigation, defense or settlement of any
claims covered by this indemnity (in this Section 10.1, collectively, the
"Indemnifiable Damages") which Buyer may suffer or incur by reason of (i) the
inaccuracy of any representation or warranty of such Seller contained in this
Agreement; (ii) the breach by such Seller of any covenant made by it in any of
the Transaction Documents; (iii) the ownership, operation or transfer of the
Assets or the Systems on or prior to the Closing Date and any liabilities
relating to the Systems not assumed by Buyer, provided that in no case shall
this Subsection 10.1(a)(iii) apply to or include Indemnifiable Damages caused
by, relating to or arising under Environmental laws, including contamination of
the Real Property, which are intended to be covered by Subsection 10.1(a)(i).
The foregoing obligation of Sellers shall be subject to and limited by each of
the qualifications set forth in this Article 10.
(b) Except as set forth in subparagraphs (i) and (ii) below or with
respect to bona fide and valid claims for which notice has been given within
twelve (12) months of the Closing Date, each representation, warranty and
covenant made by Sellers in this Agreement or pursuant hereto shall survive
until the date which is twelve (12) months following the Closing Date, and
thereafter all such representations, warranties and covenants shall be
extinguished:
(i) the representations, warranties and covenants made by
Sellers in Section 5.6 (Taxes) shall survive until the end of any
statutory limitation period with respect thereto; and
(ii) the representations, warranties and covenants made by
Sellers in the first sentence of Section 3.8 (title) shall survive
indefinitely.
(c) The indemnity obligations of Sellers hereunder shall not apply
(i) to the extent that Buyer is compensated for the same loss under Buyer's
insurance policies in the absence of any indemnity hereunder if the insurers
under such policy waive their rights of subrogation with respect thereto; (ii)
if the damages to Buyer do not exceed $500,000; and (iii) if such damages
exceed $500,000, the indemnity obligations hereunder shall only apply to that
portion of the damages that exceed such $500,000 threshold and thereafter
losses shall be paid up to a maximum of $9,750,000.
(d) Four hundred forty-four thousand and two hundred dollars
($444,200) of the Purchase Price shall be held in escrow pursuant to a mutually
acceptable form of escrow agreement, a form of which is attached hereto as
EXHIBIT M (the "Post-Closing Escrow Agreement") for a period of six (6) months
after the Closing as security for the indemnity obligations of Sellers
hereunder.
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10.2 Indemnification by Buyer.
(a) Buyer agrees to indemnify each Seller and its Affiliates,
directors, partners, agents and employees against and hold each of them
harmless on an after-Tax basis, from any and all Indemnifiable Damages which
any such indemnified party may suffer or incur by reason of or in connection
with (i) the inaccuracy of any representation or warranty of Buyer contained in
this Agreement or any document, certificate or agreement delivered pursuant
hereto; (ii) the breach by Buyer of any covenant made by it in any of the
Transaction Documents; (iii) the ownership and operation of the Assets after
the Closing Date; and (iv) any obligation or liability assumed by Buyer
hereunder or under any document, certificate or agreement delivered pursuant
hereto. The foregoing obligation of Buyer shall be subject to and limited by
each of the qualifications set forth below.
(b) Except as set forth in the next succeeding sentence, or with
respect to bona fide and valid claims for which notice has been given prior to
the date twelve (12) months from the Closing Date, each representation,
warranty and covenant made by Buyer in this Agreement or pursuant hereto and
the indemnity obligations set forth in this Section 10.2 shall survive until
the date twelve (12) months from the Closing Date, and thereafter all such
representations, warranties, covenants and indemnity obligations and any
liability thereunder shall be extinguished. The right of Sellers to assert
claims for Indemnifiable Damages arising out of the ownership or operation of
the Assets or the Systems after the Closing Date and any obligation or
liability assumed by Buyer hereunder or pursuant hereto shall survive
indefinitely.
(c) The indemnity obligations of Buyer hereunder shall not apply (i)
to the extent that Sellers or any Affiliates are compensated for the same loss
under Sellers' or any Affiliate's insurance policies in the absence of any
indemnity hereunder if the insurers under such policy waive their rights of
subrogation with respect thereto; (ii) if the damages to Sellers or any
Affiliates do not exceed $500,000; and (iii) if such damages exceed $500,000,
the indemnity obligations hereunder shall only apply to that portion of the
damages that exceed such $500,000 threshold and thereafter losses shall be paid
up to a maximum of $9,750,000. Notwithstanding anything to the contrary
contained herein, the limitations set forth in this Section 10.2(c) shall not
apply with respect to any liability related to Section 6.6 hereof.
10.3 Notice and Right To Defend Third-Party Claims.
(a) Upon receipt of written notice of any claim, demand or
assessment or the commencement of any suit, action or proceeding in respect of
which indemnity may be sought on account of an indemnity agreement contained in
this Article,
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<PAGE> 38
the party seeking indemnification (the "Indemnitee") shall promptly, but in no
event later than twenty (20) days prior to the date a response or answer
thereto is due (unless a response or answer is due within fewer than twenty
(20) days from the date of Indemnitee's receipt of notice thereof), inform the
party against whom indemnification is sought (the "Indemnitor") in writing
thereof. The failure, refusal or neglect of such Indemnitee to notify the
Indemnitor within the time period specified above of any such claim or action
shall relieve such Indemnitor from any liability which it may have to such
Indemnitee in connection therewith, if the effect of such failure, refusal or
neglect is to prejudice materially the rights of the Indemnitor in defending
against the claim or action.
(b) In case any claim, demand or assessment shall be asserted or
suit, action or proceeding commenced against an Indemnitee, and such Indemnitee
shall have timely and properly notified the Indemnitor of the commencement
thereof, the Indemnitor shall assume the defense, conduct or settlement
thereof, with counsel selected by the Indemnitor. After assumption of the
defense, conduct or settlement thereof, the Indemnitor will not be liable to
the Indemnitee for expenses incurred by Indemnitee in connection with the
defense, conduct or settlement thereof, except for such expenses as may be
reasonably required to enable the Indemnitor to take over such defense, conduct
or settlement.
(c) The Indemnitee will at its own expense cooperate with the
Indemnitor in connection with any such claim, make personnel, witnesses, books
and records relevant to the claim available to the Indemnitor at no cost, and
grant such authorizations or powers of attorney to the agents, representatives
and counsel of the Indemnitor as the Indemnitor may reasonably request in
connection with the defense or settlement of any such claim.
(d) Notwithstanding the foregoing in this Section 10.3, the
Indemnitee shall have the right to employ separate counsel in any such action,
claim or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be its fees and expenses unless (i) the
Indemnitor has agreed to pay such fees and expenses, (ii) the Indemnitor has
failed to assume the defense of such action, claim or proceeding or (iii) the
named parties to any such action, claim or proceeding (including any impleaded
parties) include both the Indemnitor and the Indemnitee and the Indemnitee has
been advised by counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
Indemnitor (in which case, if the Indemnitee informs the Indemnitor in writing
that it elects to employ separate counsel at the expense of the Indemnitor, the
Indemnitor shall not have the right to assume the defense of such action, claim
or proceeding on behalf of the Indemnitee, it being understood, however, that
the Indemnitor shall not, in
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<PAGE> 39
connection with any one such action, claim or proceeding or separate but
substantially similar or related actions, claims or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for the Indemnitee, which firm shall be designated in
writing by the Indemnitee).
10.4 Notice and Right to Remediate. Anything in this Agreement to
the contrary notwithstanding, Sellers shall have no obligation to indemnify
Buyer with respect to Indemnifiable Damages arising under Environmental Laws,
including damages due to any necessary investigation, remediation or cleanup of
Hazardous Substances at the Real Property, unless Buyer first gives Sellers an
option to conduct any necessary response or perform any required work and
Sellers refuse to do so. Such an option should be given with the written
notice required by Section 10.3(a), but in any case, shall be given prior to
any Buyer expenditure of what it considers to be Indemnifiable Damages.
Sellers shall respond to the option in writing within thirty (30) Business
Days. If Sellers exercise their option, Sellers shall perform all work in a
safe and workmanlike manner in compliance with all applicable Environmental
Laws to the satisfaction of the appropriate Governmental Authority. In
addition, Sellers will afford Buyer a reasonable opportunity to comment (at
Buyer's sole expense) in advance of Sellers' proposed responses or submissions
to Governmental Authorities or third parties relating to activities on the
Property, including reports and workplans, provided that such comment period
does not delay or interfere with Sellers' obligations to any third party.
Sellers shall consider Buyer's comments in good faith, but are under no
obligation to accept or incorporate Buyer's comments. Buyer, its
representatives and agents will not make comments or submissions to any
Governmental Authority or third parties with respect to environmental
conditions as to which Sellers have exercised their option. Any conflicts
between Section 10.3 and this Section 10.4 shall be resolved in favor of this
Section 10.4.
10.5 Mitigation. Nothing herein contained shall affect a party's
legal duty to mitigate damages.
10.6 Exclusive Remedy. This Article 10 shall be the sole and
exclusive basis of any remedy that each party may have against the other party
for an inaccuracy or breach of a representation, warranty or covenant under
this Agreement or any agreement contemplated hereby, and each party hereby
waives any claim (other than under this Article 10) it may have against the
other party with respect to the inaccuracy or breach of any such
representation, warranty or covenant.
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ARTICLE 11
Termination
11.1 Termination Events. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned:
(a) at any time, by the mutual agreement of Buyer and Sellers;
(b) by either Buyer or Sellers, upon written notice to the other,
if the conditions to its obligations set forth in Sections 7.1 and 8.1,
respectively, shall not have been satisfied or waived on or before December 31,
1997 for any reason other than a breach or default by such party of its
respective covenants, agreements, or other obligations hereunder, or any of its
representations or warranties herein not being true and accurate when made or
when otherwise required by this Agreement to be true and accurate;
(c) By Sellers, in the event that the Closing does not occur by
reason of breach or default by the Buyer under this Agreement and provided that
Sellers have not breached or defaulted hereunder and have performed or stand
ready, willing, and able to perform, their obligations under this Agreement in
all material respects;
(d) By the Buyer, in the event that the Closing does not occur by
reason of a breach or default by the Sellers under this Agreement and provided
that the Buyer has not breached or defaulted hereunder and has performed or
stands ready, willing, and able to perform, its obligations under this
Agreement in all material respects; or
(e) By Sellers in the event that the Closing does not occur
because the Purchase Price, as adjusted, is less than the threshold set forth
in Section 2.3(a).
11.2 Manner of Exercise. In the event of the termination of this
Agreement by either Buyer or Sellers pursuant to this Article 11, notice
thereof shall forthwith be given to the other party and this Agreement shall
terminate and the transactions contemplated hereunder shall be abandoned
without further action by Buyer or Sellers.
11.3 Effect of Termination. In the event of the termination of this
Agreement pursuant to this Article 11 and prior to the Closing, all obligations
of the parties hereunder shall terminate, except for the respective obligations
of the parties under Sections 6.1 (Confidentiality) and 12.14 (Expenses);
provided, however, that no termination of this Agreement shall (a) relieve a
defaulting or breaching party from any liability to the other party or parties
hereto for or in respect of such
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<PAGE> 41
default or (b) result in the rescission of any transaction theretofore
consummated hereunder. If this Agreement is terminated by Sellers in
accordance with Section 11.1(c) or by Buyer other than in accordance with
Section 11.1, Sellers shall be entitled to retain the Deposit.
ARTICLE 12
General
12.1 Covenant Not To Sue and Nonrecourse to Partners.
(a) Buyer agrees that notwithstanding any other provision in this
Agreement, any agreement, instrument, certificate or document entered into
pursuant to or in connection with this Agreement or the transactions
contemplated herein or therein (each a "Transaction Document") and any rule of
law or equity to the contrary, to the fullest extent permitted by law, Sellers'
obligations and liabilities under all Transaction Documents and in connection
with the transactions contemplated therein shall be nonrecourse to all direct
and indirect general and limited partners of Sellers.
(b) "Nonrecourse" means that the obligations and liabilities are
limited in recourse solely to the assets of Sellers (for those purposes, any
capital contribution obligations of the general and limited partners of Sellers
or any negative capital account balances of such partners shall not be deemed
to be assets of Sellers) and are not guaranteed directly or indirectly by, or
the primary obligations of, any general or limited partner of Sellers, and
neither Sellers nor any general or limited partner or any officer, director,
partner, employee or agent of Sellers or any general or limited partner of any
successor partnership, either directly or indirectly, shall be personally
liable in any respect (except to the extent of their respective interests in
the assets of Sellers) for any obligation or liability of Sellers under any
Transaction Document or any transaction contemplated therein.
(c) "Direct" partners include all general and limited partners of
Sellers, and "indirect" partners include all general and limited partners and
members of each direct partner and all general and limited partners and members
of each such indirect partner and all such further indirect partners and
members thereof and each such indirect partner.
(d) Buyer hereby covenants for itself, its successors and assigns
that it, its successors and assigns will not make, bring, claim, commence,
prosecute, maintain, cause or permit any action to be brought, commenced,
prosecuted, maintained, either at law or equity, in any court of the United
States or any state thereof against any direct or indirect member or general or
limited partner of Sellers or any officer, director, partner, employee or agent
of Sellers or any direct or indirect
-36- ASSET PURCHASE
AND SALE AGREEMENT
<PAGE> 42
member or general or limited partner of Sellers for (i) the payment of any
amount or the performance of any obligation under any Transaction Document or
(ii) the satisfaction of any liability arising in connection with any such
payment or obligation or otherwise, including without limitation, liability
arising in law for tort (including, without limitation, for active and passive
negligence, negligent misrepresentation and fraud), equity (including, without
limitation, for indemnification and contribution) and contract (including,
without limitation, monetary damages for the breach of representation or
warranty or performance of any of the covenants or obligations contained in any
Transaction Document or with the transactions contemplated herein or therein).
12.2 Assignment. Neither Buyer nor Sellers may assign its rights and
obligations under, or grant a security interest in, this Agreement to any
person or entity other than an Affiliate of such party without the consent of
the other parties hereto.
12.3 Parties in Interest. All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and permitted assigns of the parties hereto,
whether herein so expressed or not. Except as provided in Sections 10.1, 10.2
and 12.1, no person other than Buyer and Sellers and their respective
Affiliates may rely upon any provision of this Agreement or any agreement,
instrument, certificate or document executed pursuant to this Agreement.
12.4 Time of Essence. Time is of the essence in each and every
provision in this Agreement.
12.5 Severability. Any provision of this Agreement that is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining provisions of this Agreement
or affecting the validity or enforceability of any provision of this Agreement
in any other jurisdiction.
12.6 Amendment. Except as otherwise provided herein, Buyer and
Sellers may amend, modify or supplement this Agreement at any time, but only in
writing duly executed by all parties hereto.
12.7 Terms. Defined terms used herein are equally applicable to the
singular and plural forms as appropriate. Unless otherwise expressly stated
herein, references to Articles and Sections are to articles and sections of
this Agreement and references to parties, Exhibits and Schedules are to the
parties, and the exhibits and schedules attached, to this Agreement.
12.8 Headings. The headings preceding the text of
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Sections of this Agreement are for convenience only and shall not be deemed a
part hereof.
12.9 Entire Understanding; Schedules. The terms set forth in this
Agreement including its Schedules and Exhibits are intended by the parties as a
final, complete and exclusive expression of the terms of their agreement and
may not be contradicted, explained or supplemented by evidence of any prior
agreement, any contemporaneous oral agreement or any consistent additional
terms. The Schedules and Exhibits attached to this Agreement are made a part
of this Agreement. All documents or information disclosed in the Schedules are
intended to be disclosed for all purposes under this Agreement and will also be
deemed to be incorporated by reference in each Schedule to which they may be
relevant without further disclosure.
12.10 Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
12.11 Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California.
12.12 Notices. Any notice or demand desired or required to be given
hereunder shall be in writing and deemed given when personally delivered, sent
by telecopier, overnight courier or deposited in the mail, postage prepaid,
sent certified or registered, return receipt requested, and addressed as set
forth below or to such other address as either party shall have previously
designated by such a notice. Any notice so delivered personally or by telecopy
shall be deemed to be received on the date of delivery or transmission by
telecopier; any notice so sent by overnight courier shall be deemed to be
received one (1) Business Day after the date sent; and any notice so mailed
shall be deemed to be received on the date stamped on the receipt (rejection or
other refusal to accept or inability to deliver because of a change of address
of which no notice was given shall be deemed to be receipt of the notice).
If to Sellers:
235 Montgomery Street, Suite 420
San Francisco, CA 94104
Attention: Mr. Rodney M. Royse
Telephone: (415) 616-4600
Telecopier: (415) 397-3978
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<PAGE> 44
Copy to:
Pillsbury Madison & Sutro LLP
235 Montgomery Street
San Francisco, CA 94104
Attention: Gregg F. Vignos, Esq.
Telephone: (415) 983-1649
Telecopier: (415) 983-1200
If to Buyer:
Northland Cable Television, Inc.
1201 Third Avenue, Suite 3600
Seattle, WA 98101
Attention: Mr. John S. Whetzell
Telephone: (206) 674-3900
Telecopier: (206) 674-3950
Copy to:
Ryan Swanson & Cleveland
1201 Third Avenue
Suite 3400
Seattle, WA 98101
Attention: John E. Iverson, Esq.
Telephone: (206) 464-4224
Telecopy: (206) 583-0359
12.13 Further Acts. If, at any time before, on or after the Closing
Date, any further action by either party is necessary to carry out the purposes
of this Agreement, such party shall take all such necessary action or use such
party's reasonable best efforts to cause such action to be taken.
12.14 Expenses. Except as set forth in Sections 6.2, 6.3 and 6.4,
Sellers and Buyer shall each bear its own costs and expenses incurred in
connection with the negotiation, preparation or execution of this Agreement
(including, but not limited to, fees and expenses of attorneys, accountants,
brokers, consultants, finders and investment bankers), whether or not the
Closing occurs. In the event that one of the parties hereto breaches this
Agreement, however, and fails to consummate the transaction contemplated
hereby, such breaching party shall be responsible for all costs and expenses
incurred by the non-breaching party in connection herewith.
12.15 Attorneys' Fees. If any action or proceeding is commenced
between the parties with respect to the Transaction Documents, the prevailing
party shall be entitled to all fees and expenses incurred by it in connection
with such action or proceeding, including reasonable attorneys' fees.
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12.16 Judicial Proceedings. Each party consents to the jurisdiction
over it of the courts of the State of California in the City and County of San
Francisco, and of the United States Courts in the Northern District of
California and agrees that personal service of all process may be made by
registered or certified mail pursuant to the provisions of Section 12.12.
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<PAGE> 46
IN WITNESS WHEREOF, the parties hereto have entered into and signed
this Agreement as of the date and year first above written.
SELLERS:
INTERMEDIA PARTNERS OF CAROLINA, L.P.
By: InterMedia Partners, a
California limited partnership
Its General Partner
By: InterMedia Capital Management I, LLC,
Its General Partner
By: InterMedia Management, Inc.
Its Managing Member
By: ___________________________________
Rodney M. Royse
Vice President
ROBIN CABLE SYSTEMS, L.P.
By: MITGO CORP.,
Its general partner
By: ___________________________________
Rodney M. Royse
Attorney-In-Fact
BUYER:
NORTHLAND CABLE TELEVISION, INC.
By: ___________________________________
Title: ________________________________
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<PAGE> 47
DO NOT DELETE THESE PAGES
References used in this doc - please update as needed
<TABLE>
<S> <C>
1.34 required consents
1.5 assumed contracts
1.19 excluded assets
2.1 purchase and sale of assets
2.3 purchase price & payment
2.3(a) purchase price
2.3(a) consideration for assets
2.3(d) adjustment time
2.4 preliminary & final settlements
2.4(a) preliminary adjustments report
2.4(b) final adjustments report
2.5 disputed liabilities
2.6 closing
? closing date
2.6 completion of purchase and sale
3.8 title & encumbrances
? franchises
3.12 contracts
3.13 real property
3.14 environmental laws
3.14(b) environmental law
3.14(c) hazardous substance
3.15 copyright act
3.16(a) cli
3.17(a) financial statements
3.17(a) profit (a)
3.17(b) material changes
5.6 sellers taxes
3.19 employees
3.19(a) employment agreements
3.19(b) collective agreements
3.19(c) employee benefit plans
3.19(c) employee plans
3.19(c) erisa
5.6 sellers taxes
6.1 confidentiality
6.2 hsr act
6.5 employee matters
6.5(a) nontransferring employees
6.5(a) new employees
? prospective employees
6.5(b) erisa affiliates
6.5(c) qualified defined contribution
6.5(c) buyer's dc plan
6.5(c) sellers' dc plan
6.5(d) welfare plans
6.5(d)(i) sellers' welfare plans
6.5(d) buyer's welfare plans
6.5(d)(ii)(B) cobra
6.5(d) employment transfer date
</TABLE>
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<TABLE>
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7.1 buyers conditions precedent
Article 9 article 9
9.2(a) closing docs-seller delivers
9.2 closing documents
Article 10 article 10
10.1 indemnification by seller
10.1(a) indemnifiable damages
10.2 indemnification by buyer
10.3 notice and right
10.3(a) notice and right (a)
10.3(a) indemnitee
10.3(a) indemnitor
10.5 mitigation
Article 11 article 11
12.1 covenant not to sue & nonrecourse
12.1(a) transaction document
12.1(b) nonrecourse
12.12 notices
12.14 expenses
</TABLE>
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<PAGE> 1
ASSIGNMENT AND ASSUMPTION
OF
ASSET PURCHASE AND SALE AGREEMENT
This Assignment and Assumption of Asset Purchase and Sale Agreement
(this "Assignment") is made as of October 27, 1997, and is by and between
NORTHLAND CABLE TELEVISION, INC., a Washington corporation ("Assignor"), and
NORTHLAND CABLE PROPERTIES SIX LIMITED PARTNERSHIP, a Washington limited
partnership ("Assignee").
RECITALS
A. InterMedia Partners of Carolina, L.P., a California limited
partnership ("InterMedia") and Robin Cable Systems, L.P., a California limited
partnership ("Robin"), currently are engaged in the business of providing cable
television service in and around the communities of (1) the City of Aiken, the
Town of Burnettown, the Town of New Ellenton, the Town of Jackson, and nearby
unincorporated areas of Aiken County, the City of Greenwood, the Town of Ninety
Six, and nearby unincorporated areas of Greenwood and Laurens counties, the Town
of Ware Shoals, the Town of Hodges, and nearby unincorporated areas of
Greenwood, Laurens and Abbeville counties, the Town of McCormick and nearby
unincorporated areas of McCormick County, the Town of Saluda and nearby
unincorporated areas of Saluda County, and the Town of Edgefield, the Town of
Johnston, and nearby unincorporated areas of Edgefield County (the
"Greenwood/Aiken Area Systems"), and (2) the City of Bennettsville, the City of
McColl, the Town of Clio, the Town of Tatum, and nearby unincorporated areas of
Marlboro County, the City of Barnwell, the Town of Blackville, the Town of Elko,
the Town of Williston, the Town of Snelling and nearby unincorporated areas of
Barnwell County, the City of Bamberg, the City of Denmark, and nearby
unincorporated areas of Bamberg County, and the Town of Allendale, the Town of
Fairfax, and nearby unincorporated areas of Allendale County (the
"Bennettsville/Barnwell/Bamberg/Allendale Area Systems"), all in the State of
South Carolina.
B. Assignor has entered into that certain Asset Purchase and Sale
Agreement dated as of August 27, 1997 (the "Agreement") with InterMedia and
Robin to purchase substantially all of the assets of InterMedia and Robin used
or useful in connection with the Greenwood/Aiken Area Systems and the
Bennettsville/Barnwell/Bamberg/Allendale Area Systems.
C. Pursuant to Section 12.2 of the Agreement, Assignor desires to assign
all of its rights pursuant to the Agreement relating to the
Bennettsville/Barnwell/Bamberg/Allendale Area Systems to Assignee, and Assignee
desires to accept such assignment and to assume all associated obligations, all
as more particularly described below.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
Page 1
<PAGE> 2
1. Assignment and Assumption. Assignor hereby assigns to Assignee all of
its rights under the Agreement relating to the purchase of all of the assets of
InterMedia and Robin associated with the
Bennettsville/Barnwell/Bamberg/Allendale Area Systems, and Assignee hereby
assumes all obligations relating to such rights.
2. Payment of Purchase Price by Assignee. In accordance with the
purchase price negotiated with InteMedia and Robin and set forth on Schedule 2.3
of the Agreement, the purchase price to be paid by Assignee for its purchase of
the Bennettsville/Barnwell/Bamberg/Allendale Area Systems is Twenty Million Five
Hundred
Thousand Dollars ($20,500,000).
3. Adjustments and Prorations. All pre- and post-Closing adjustments and
prorations which are to be made under Sections 2.3 and 2.4 of the Agreement with
respect to the Bennettsville/Barnwell/Bamberg/Allendale Area Systems shall be
applied to the purchase price associated with the purchase of such systems. In
the event that any such proration is not attributable to any particular cable
television system, such proration or adjustment shall be applied to the purchase
prices to be paid by each of Assignor and Assignee prorata in accordance with
the proportionate share of the aggregate purchase price to be paid by Assignor
and Assignee.
4. Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of the State of Washington.
DATED as of the date first mentioned above.
ASSIGNOR: NORTHLAND CABLE TELEVISION, INC.
By ______________________________________
James A. Penney, Vice President
ASSIGNEE: NORTHLAND CABLE PROPERTIES SIX
LIMITED PARTNERSHIP
By: Northland Communications Corporation,
Its Managing General Partner
By ______________________________________
James A. Penney, Vice President
Page 2
<PAGE> 1
DRAFT DATE: 1/13/98
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of December 31st, 1997
by and among
NORTHLAND CABLE PROPERTIES SIX LIMITED PARTNERSHIP
as Borrower,
the Lenders referred to herein,
and
FIRST UNION NATIONAL BANK,
as Administrative Agent,
and
FIRST UNION CAPITAL MARKETS CORP.,
as Arranger
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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ARTICLE I DEFINITIONS........................................................................1
SECTION 1.1 Definitions.....................................................................1
SECTION 1.2 General........................................................................14
SECTION 1.3 Other Definitions and Provisions...............................................14
ARTICLE II REVOLVING CREDIT FACILITY........................................................14
SECTION 2.1 Revolving Credit Loans.........................................................14
SECTION 2.2 Procedure for Advance of Revolving Credit Loans................................15
SECTION 2.3 Repayment of Revolving Credit Loans............................................15
SECTION 2.4 Revolving Credit Notes.........................................................16
SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment.........................16
SECTION 2.6 Termination of Revolving Credit Facility.......................................17
SECTION 2.7 Use of Proceeds................................................................17
SECTION 2.8 Security.......................................................................17
ARTICLE III TERM LOAN FACILITY..............................................................17
SECTION 3.1 Term Loan and Use of Proceeds..................................................17
SECTION 3.2 Procedure for Advance of Term Loan.............................................17
SECTION 3.3 Repayment of Term Loan.........................................................18
SECTION 3.4 Optional Prepayments of Term Loan..............................................18
SECTION 3.5 Mandatory Prepayments of Term Loan.............................................18
SECTION 3.6 Term Notes.....................................................................19
</TABLE>
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<TABLE>
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SECTION 3.7 Security......................................................................20
ARTICLE IV GENERAL LOAN PROVISIONS..........................................................20
SECTION 4.1. Interest......................................................................20
SECTION 4.2. Notice and Manner of Conversion or Continuation of Loans......................23
SECTION 4.3 Commitment Fees...............................................................23
SECTION 4.4 Manner of Payment.............................................................24
SECTION 4.5 Crediting of Payments and Proceeds............................................25
SECTION 4.6. Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption
by Administrative Agent......................................................25
SECTION 4.7. Changed Circumstances.........................................................26
SECTION 4.8. Indemnity.....................................................................27
ARTICLE V CLOSING, CONDITIONS OF CLOSING AND BORROWING......................................29
SECTION 5.1. Closing.......................................................................29
SECTION 5.2 Conditions to Closing and Initial Loans.......................................29
SECTION 5.3. Conditions to All Loans.......................................................34
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BORROWER.......................................35
SECTION 6.1. Representations and Warranties................................................35
SECTION 6.2 Survival of Representations and Warranties, Etc...............................43
ARTICLE VII FINANCIAL INFORMATION AND NOTICES...............................................43
SECTION 7.1 Financial Statements and Projections..........................................43
SECTION 7.2 Officer's Compliance Certificate..............................................44
SECTION 7.3 Accountants' Certificate......................................................44
SECTION 7.4. Other Reports.................................................................44
SECTION 7.5 Notice of Litigation and Other Matters........................................45
</TABLE>
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<TABLE>
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ARTICLE VIII AFFIRMATIVE COVENANTS..........................................................46
SECTION 8.1 Preservation of Existence and Related Matters.................................46
SECTION 8.2. Maintenance of Property.......................................................46
SECTION 8.3 Insurance.....................................................................47
SECTION 8.4 Accounting Methods and Financial Records......................................47
SECTION 8.5 Payment and Performance of Obligations........................................47
SECTION 8.6 Compliance With Laws and Approvals............................................47
SECTION 8.7 Environmental Laws............................................................47
SECTION 8.8 Compliance with ERISA.........................................................48
SECTION 8.9 Compliance With Agreements....................................................48
SECTION 8.10 Conduct of Business...........................................................48
SECTION 8.11 Visits and Inspections........................................................48
SECTION 8.12 Interest Rate Protection......................................................49
SECTION 8.13 Additional Collateral.........................................................49
SECTION 8.14 Further Assurances............................................................49
ARTICLE IX FINANCIAL COVENANTS..............................................................50
SECTION 9.1 Maximum Leverage Ratio........................................................50
SECTION 9.3 Fixed Charge Ratio............................................................50
SECTION 9.4 Maximum Capital Expenditures..................................................50
ARTICLE X NEGATIVE COVENANTS................................................................51
SECTION 10.1. Limitations on Debt...........................................................51
SECTION 10.2 Limitations on Contingent Obligations........................................52
SECTION 10.3 Limitations on Liens.........................................................52
SECTION 10.4 Limitations on Loans, Advances, Investments and Acquisitions.................53
</TABLE>
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<TABLE>
<S> <C>
SECTION 10.5 Limitations on Mergers and Liquidation........................................54
SECTION 10.6 Limitations on Sale of Assets.................................................54
SECTION 10.7 Limitations on Distributions; Organizational Structure........................54
SECTION 10.8 Limitations on Exchange and Issuance of Equity................................55
SECTION 10.9 Transactions with Affiliates..................................................55
SECTION 10.10 Certain Accounting Changes....................................................55
SECTION 10.11 Restrictive Agreements........................................................55
SECTION 10.12 Management Fees...............................................................55
SECTION 10.13 Amendments; Payments and Prepayments of Subordinated Debt.....................55
SECTION 10.14 Other Amendments..............................................................56
ARTICLE XI DEFAULT AND REMEDIES.............................................................56
SECTION 11.1 Events of Default.............................................................56
SECTION 11.2 Remedies......................................................................58
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc...............................59
SECTION 11.4 Consents......................................................................59
ARTICLE XII THE ADMINISTRATIVE AGENT........................................................59
SECTION 12.1 Appointment....................................................................60
SECTION 12.2 Delegation of Duties..........................................................60
SECTION 12.3 Exculpatory Provisions........................................................60
SECTION 12.4 Reliance by Administrative Agent...............................................60
SECTION 12.5 Notice of Default.............................................................61
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders....................61
SECTION 12.7 Indemnification...............................................................62
SECTION 12.8 The Administrative Agreement in Its Individual Capacity.......................62
</TABLE>
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<TABLE>
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SECTION 12.9 Resignation of Administrative Agent; Successor Administrative Agents..........62
ARTICLE XIII MISCELLANEOUS..................................................................63
SECTION 13.1 Notices.......................................................................63
SECTION 13.2 Expenses......................................................................64
SECTION 13.3 Set-off.......................................................................64
SECTION 13.4 Governing Law.................................................................64
SECTION 13.5 Consent to Jurisdiction.......................................................65
SECTION 13.6 Waiver of Jury Trial; Binding Arbitration.....................................65
SECTION 13.7 Reversal of Payments..........................................................66
SECTION 13.8 Injunctive Relief.............................................................66
SECTION 13.9 Accounting Matters............................................................66
SECTION 13.10 Successors and Assigns; Participation.........................................66
SECTION 13.11 Amendments, Waivers and Consents..............................................69
SECTION 13.12 Performance of Borrower's Duties.............................................70
SECTION 13.13 Indemnification..............................................................70
SECTION 13.14 All Powers Coupled with Interest..............................................70
SECTION 13.15 Survival of Indemnities......................................................70
SECTION 13.16 Titles and Captions..........................................................70
SECTION 13.17 Severability of Provisions...................................................70
SECTION 13.18 Counterparts..................................................................71
SECTION 13.19 Term of Agreement.............................................................71
SECTION 13.20 Adjustments..................................................................71
SECTION 13.21 Inconsistencies with Other Documents; Independent Effect of Covenants........71
SECTION 13.22 Recourse Loans...............................................................71
</TABLE>
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<TABLE>
<CAPTION>
EXHIBITS
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Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Term Note
Exhibit C-I - Form of Notice of Revolving Credit Loan Borrowing
Exhibit C-II - Form of Notice of Term Loan Borrowing
Exhibit D-I - Form of Notice of Conversion/Continuation
Exhibit D-II - Form of Notice of Pre-Payment
Exhibit E - Form of Officer's Compliance Certificate
Exhibit F - Form of Assignment and Acceptance
Exhibit G - Form of Borrower Security Agreement
Exhibit H - Form of Pledge Agreement
Exhibit I - Form of Guaranty Agreement
Exhibit J - Form of Notice of Account Designation
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 6.1(a) - Jurisdictions of Organization and Qualification to Do
Business as Foreign Entity
Schedule 6.1(b) - Subsidiaries of the Borrower and Capitalization of the
Borrower
Schedule 6.1(d) - Governmental Approvals
Schedule 6.1(j) - ERISA Plans
Schedule 6.1(m) - Material Contracts
- Employment, Non-Compete, Investment and Shareholder
Agreements
Schedule 6.1(v) - Liens
Schedule 6.1(w) - Debt and Contingent Obligations
Schedule 6.1(x) - Litigation
Schedule 6.1(y) - FCC Licenses
Schedule 10.4 - Loans, Advances and Investments
</TABLE>
<PAGE> 8
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 31st day of
December, 1997, by and among NORTHLAND CABLE PROPERTIES SIX LIMITED PARTNERSHIP,
a limited partnership organized under the laws of the State of Washington (the
"Borrower"), the Lenders who are or may become a party to this Agreement
(collectively, the "Lenders"), FIRST UNION NATIONAL BANK, a national banking
association, as Administrative Agent for the Lenders and FIRST UNION CAPITAL
MARKETS CORP., a North Carolina corporation, as Arranger (the "Arranger").
STATEMENT OF PURPOSE
The Borrower, the Lenders party thereto (the "Original Lenders") and the
Administrative Agent entered into a Credit Agreement dated as of February 16,
1993, (as amended prior to the Closing Date, the "Original Credit Agreement")
pursuant to which the Original Lenders agreed to make certain extensions of
credit to the Borrower under the terms and conditions set forth therein.
The Borrower has entered into an Acquisition Agreement (as defined in
Section 1.1) pursuant to which the Borrower has agreed to purchase certain cable
assets of InterMedia (as defined in Section 1.1).
The Borrower, the Lenders and the Administrative Agent desire to amend
and restate the Original Credit Agreement in its entirety pursuant to the terms
of this Agreement in order to, among other things, increase the Commitment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this Agreement
shall have the meanings assigned to them below:
"Acquisition Agreement" shall mean the collective reference to that
certain Asset Purchase and Sale Agreement dated as of August 27, 1997, by and
among InterMedia, Robin Cable Systems, L.P., and Northland Cable Television,
Inc. and that certain Assignment and Assumption of Asset Purchase and Sale
Agreement dated as of October 27, 1997, between Northland Cable Television, Inc.
and Northland Cable Properties Six Limited Partnership.
"Administrative Agent" shall mean First Union in its capacity as
administrative agent hereunder and any successor thereto appointed pursuant to
Section 12.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1.
<PAGE> 9
"Administrative General Partner" means FN Equities Joint Venture, a
joint venture organized under the laws of the State of California whose sole
partners are FN Equities, Inc. and John S. Simmers, in its capacity as
Administrative General Partner under the Partnership Agreement.
"Affiliate" means, with respect to the Borrower and its Subsidiaries,
any other Person (other than a Subsidiary) which directly or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Borrower or any of its Subsidiaries. The term control means
(a) the power to vote ten percent (10%) or more of the securities or other
equity interests of a Person having ordinary voting power, or (b) the
possession, directly or indirectly, of any other power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Agreement" means this Amended and Restated Credit Agreement, as may be
further amended, restated or otherwise modified from time to time.
"Annualized Operating Cash Flow" means, at any date of determination,
Operating Cash Flow for the fiscal quarter ending on or immediately prior to
such date of determination, times four.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all Governmental Authorities and all
orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
4.1(c).
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 13.10.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate, as determined by the Administrative Agent, plus 1/2 of
1%.
"Base Rate Loan" means any Loan bearing interest at a rate determined
with reference to the Base Rate as provided in Section 4.1(a) hereof
"Borrower" means Northland Cable Properties Six Limited Partnership, in
its capacity as borrower hereunder.
"Borrower Management Agreement" means that certain Management Agreement
by and between the Borrower and the Managing General Partner dated October 10,
1986, as amended, restated or otherwise modified in accordance with the terms
thereof and as may be further amended, restated or otherwise modified in
accordance with the terms hereof
"Borrower Security Agreement" means the Amended and Restated Security
Agreement of even date herewith executed by the Borrower, as debtor, in favor of
the Administrative Agent
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<PAGE> 10
for the ratable benefit of the Administrative Agent and the Lenders
substantially in the form of Exhibit G attached hereto, as amended, restated or
otherwise modified.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in U.S.
Dollar deposits in the London interbank market.
"CATV Franchise" means, collectively with respect to the Borrower and
its Subsidiaries, (a) any franchise, license, permit, agreement or easement
granted by any political jurisdiction or unit or other local, state or federal
franchising authority pursuant to which a Person has the right or license to
operate a CATV System and (b) any law, regulation, ordinance, agreement or other
instrument or document setting forth all or any part of the terms of any
franchise, license, permit, agreement or easement described in clause (a) of
this definition.
"CATV System" means any cable distribution system owned or acquired by
the Borrower or any of its Subsidiaries which receives audio, video, digital,
other broadcast signals or information or telecommunications by cable, optical,
antennae, microwave or satellite transmission and which amplifies and transmits
such signals to Persons who receive such signals.
"Capital Asset" means, with respect to the Borrower and its
Subsidiaries, any asset that would, in accordance with GAAP, be required to be
classified and accounted for as a capital asset on a Consolidated balance sheet
of the Borrower and its Subsidiaries.
"Capital Expenditures" means, with respect to the Borrower and its
Subsidiaries for such period, the aggregate cost of all Capital Assets acquired
by the Borrower and its Subsidiaries during such period (excluding the
InterMedia Purchase), determined in accordance with GAAP.
"Capital Lease" means, with respect to the Borrower and its
Subsidiaries, any lease of any property that would, in accordance with GAAP, be
required to be classified and accounted for as a capital lease on a Consolidated
balance sheet of the Borrower and its Subsidiaries.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Collateral" means all the assets, property and interests in property of
the Borrower or any Subsidiary, whether now owned or hereafter acquired, that
shall, from time to time, secure the Obligations including, without limitation,
the collateral described in the Security Documents and any property or interest
provided in addition to or in substitution for any of the foregoing.
3
<PAGE> 11
"Commitment" means the collective reference to the total amount of the
(a) Revolving Credit Commitment and (b) Term Loan Commitment.
"Commitment Percentage" means, as to the respective Commitment of any
Lender at any time, the ratio of (a) the amount of the Commitment of such Lender
to (b) all such Commitments of all Lenders.
"Consolidated" means, with reference to financial statements or
financial statement items of the Borrower and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Contingent Obligations" means, with respect to the Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
any such Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement condition or otherwise) or (b) entered into for the purpose of
assuring in any other manner the obligee of such Debt or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided, however, that the term Contingent Obligation shall
not include endorsements for collection or deposit in the ordinary course of
business.
"Debt" means, with respect to the Borrower and its Subsidiaries at any
date, the sum of the following calculated in accordance with GAAP and without
duplication: (a) all liabilities, obligations and indebtedness for borrowed
money including, but not limited to, obligations evidenced by bonds, debentures,
notes or other similar instruments of any such Person, (b) all obligations to
pay the deferred purchase price of property or services of any such Person,
except trade payables arising in the ordinary course of business not more than
ninety (90) days past due, (c) all obligations of any such Person as lessee
under Capital Leases, (d) all Debt of any other Person secured by a Lien on any
asset of any such Person, (e) all Contingent Obligations of any such Person, (f)
all obligations, contingent or otherwise, of any such Person relative to the
face amount of letters of credit, whether or not drawn, including, without
limitation, any banker's acceptances issued for the account of any such Person
(g) all net obligations incurred by any such Person pursuant to Hedging
Agreements and (h) all obligations of such Person with respect to any unfunded
liabilities for all Pension Plans and Employee Benefit Plans.
"Default" means any of the events specified in Section 11.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
4
<PAGE> 12
"Effective Date" means, that Business Day upon which each condition
described in Article V shall be satisfied or waived in all respects in a manner
acceptable to the Administrative Agent.
"Eligible Assignee" means, with respect to any assignment of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized under the laws of the United
States or any state thereof, having total capital and surplus in excess of
$500,000,000, (b) a finance company, insurance company or other financial
institution which in the ordinary course of business extends credit of the type
extended hereunder and that has total assets in excess of $1,000,000,000, (c)
already a Lender hereunder (whether as an original party to this Agreement or as
the assignee of another Lender), (d) the successor (whether by transfer of
assets, merger or otherwise) to all or substantially all of the commercial
lending business of the assigning Lender or (e) any other Person that has been
approved in writing as an Eligible Assignee by the Borrower and the
Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
years been maintained for the employees of the Borrower or any current or former
ERISA Affiliate.
"Environmental Laws" means any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health or the environment, including, but not limited
to, requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations promulgated thereunder, each as amended or modified
from time to time.
"ERISA Affiliate" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Event of Default" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Excess Cash Flow" means for any Fiscal Year, the following calculated,
without duplication for such period in accordance with GAAP: (a) Operating Cash
Flow of the Borrower and its Subsidiaries for such period less (b) Fixed Charges
for such period.
"Existing Loans" shall have the meaning set forth in Section 5.1(b)(iv).
"FCC" means the Federal Communications Commission or any successor
Governmental Authority.
5
<PAGE> 13
"FCC License" means any license, permit, consent, certificate of
compliance, approval, waiver or authorization granted or issued by the FCC.
"Federal Funds Rate" means, for any day, a fluctuating interest rate per
annum equal to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal
Funds brokers, as published at 11:00 a.m. (Charlotte time) for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by it.
"First Union" means First Union National Bank, a national banking
association, and its successors.
"Fiscal Year" means the fiscal year of the Borrower and its Subsidiaries
ending on December 31.
"Fixed Charges" means, with respect to the Borrower and its
Subsidiaries, for any period, the following, without duplication, each
calculated for such period in accordance with GAAP: (a) all principal payments
or similar amounts required to be paid with respect to Total Funded Debt during
such period (excluding mandatory prepayments for such period pursuant to
Sections 2.5(b) and 3.5) plus (b) Interest Expense paid or payable in cash by
the Borrower and its Subsidiaries during such period plus (c) all Capital
Expenditures made by the Borrower and its Subsidiaries during such period, plus
(d) income and franchise taxes, to the extent actually paid during such period.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated and
consistent with the prior financial practice of the Borrower and its
Subsidiaries.
"General Partners" means the collective reference to the Administrative
General Partner and the Managing General Partner.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities, including, without limitation, all FCC Licenses and
CATV Franchises.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing, including
without limitation the FCC.
6
<PAGE> 14
"Guarantor" means any Subsidiary party to the Guaranty Agreement as a
guarantor.
"Guaranty Agreement" means any Guaranty Agreement executed pursuant to
Section 8.13 by a Subsidiary in favor of the Administrative Agent for the
ratable benefit of the Administrative Agent and the Lenders substantially in the
form of Exhibit I, as amended, restated or otherwise modified.
"Hazardous Materials" means any substances or materials (a) which are or
become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (b) which are
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise harmful to human health or the environment and are or
become regulated by any Governmental Authority, (c) the presence of which
require investigation or remediation under any Environmental Law or common law,
(d) the discharge or emission or release of which requires a permit or license
under any Environmental Law or other Governmental Approval, (e) which are deemed
to constitute a nuisance, a trespass or pose a health or safety hazard to
persons or neighboring properties, (f) which are materials consisting of
underground or aboveground storage tanks, whether empty, filled or partially
filled with any substance described in clauses (a) through (g) hereof, or (g)
which contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest rate
swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of the Borrower under this Agreement, and any
confirming letter executed pursuant to such agreement, all as amended, restated
or otherwise modified.
"Interest Expense" means, with respect to the Borrower and its
Subsidiaries for any period, aggregate interest expense thereof with respect to
Total Funded Debt (including, without limitation, interest expense attributable
to Capital Leases) and, to the extent not included therein, fees and other
charges payable with respect to all Debt (including fees and charges payable
with respect to Hedging Agreements and similar investments but excluding the
facility and structuring fees paid in connection with closing of the Loans), all
determined on a Consolidated basis for such period in accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"InterMedia" means InterMedia Partners of Carolina, L.P., a limited
partnership organized under the laws of the State of California.
"InterMedia Purchase" means the acquisition on or prior to the Effective
Date by the Borrower of cable assets (including approximately 11,500
subscribers) in Allendale, Bennettsville, Barnwell, and Bamberg, South Carolina
from InterMedia pursuant to the terms of the Acquisition Agreement.
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<PAGE> 15
"Lender" means each Person executing this Agreement as a Lender set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.10.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"Leverage Ratio" shall have the meaning assigned thereto in Section 9.1.
"LIBOR" means the rate of interest determined on the basis of the rate
for deposits in Dollars for a period equal to the applicable Interest Period
commencing on the first day of such Interest Period appearing on Telerate Page
3750 as of 11:00 a.m. (London time) two (2) Business Days prior to the first day
of the applicable Interest Period. If, for any reason, such rate is not
available, then "LIBOR" shall be determined by the Administrative Agent to be
the arithmetic average (rounded upward, if necessary, to the nearest
one-sixteenth of one percent (1/16%) of the rate per annum at which deposits in
Dollars would be offered by first class banks in the London interbank market to
the Administrative Agent (or the Administrative Agent's London branch) at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable Interest Period for a period equal to such Interest Period
and in an amount substantially equal to the amount of the applicable Loan.
"LIBOR Rate" means (a) LIBOR divided by (b) one (1) minus the Reserve
Percentage.
"LIBOR Rate Loan" means any Loan bearing interest at a rate determined
with reference to the LIBOR Rate as provided in Section 4.1(a) hereof.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
"Loan" means any Revolving Credit Loan and any Term Loan made to the
Borrower pursuant to Articles II and III, and all such Loans collectively as the
context requires.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Security Documents, any Hedging Agreement with a Lender, any lockbox or cash
management agreements with a Lender and each other document, instrument and
agreement executed and delivered by the Borrower, in connection with this
Agreement or otherwise referred to herein or contemplated hereby, all as
amended, restated or otherwise modified.
"Management Fees" means all fees or charges (including any interest
thereon) and other amounts payable to the Managing General Partner pursuant to
the Management Agreement.
8
<PAGE> 16
"Managing General Partner" means Northland Communications Corporation, a
corporation organized under the laws of the State of Washington, in its capacity
as Managing General Partner of the Borrower under the Partnership Agreement.
"Material Adverse Effect" means, with respect to the Borrower or any of
its Subsidiaries, a material adverse effect on the properties, business,
prospects, operations or condition (financial or otherwise) of such Persons
taken as a whole or the ability of any such Person to perform its obligations
under the Loan Documents to which it is a party.
"Material Contract" means (a) any contract, agreement or other
instrument, written or oral, of the Borrower or any of its Subsidiaries
involving monetary liability of or to any such Person in an amount in excess of
$250,000 or (b) any other contract, agreement or instrument, written or oral, of
the Borrower or any of its Subsidiaries, the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
"Maximum Rate" shall have the meaning assigned thereto in Section
4.1(f).
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, contributions within the preceding six years.
"Net Income" means, with respect to the Borrower and its Subsidiaries
for any period, the Consolidated net income (or loss) thereof for such period
determined in accordance with GAAP; provided, that there shall be excluded from
net income (or loss): the income (or loss) of any Person (other than
Wholly-Owned Subsidiaries of the Borrower) in which the Borrower has an
ownership interest.
"Net Proceeds" shall have the meaning assigned thereto in Section
3.5(a).
"Notes" means the Revolving Credit Notes or the Term Notes, or any
combination thereof, "Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.2(b).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Pre-Payment" shall have the meaning assigned thereto in
Section 2.3(c).
"Notice of Revolving Credit Loan Borrowing" shall have the meaning
assigned thereto in Section 2.2(a).
"Notice of Term Loan Borrowing" shall have the meaning assigned thereto
in Section 3.2.
9
<PAGE> 17
"Obligations" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, (b) all payment and
other obligations owing by the Borrower to any Lender under any Hedging
Agreement and (c) all other fees and commissions (including attorney's fees),
charges, indebtedness, loans, liabilities, financial accommodations,
obligations, covenants and duties owing by the Borrower to the Lenders or to the
Administrative Agent, of every kind, nature and description, direct or indirect,
absolute or contingent, due or to become due, liquidated or unliquidated, and
whether or not evidenced by any note, in each case under or in respect of this
Agreement, any Note or any of the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 7.2.
"Operating Cash Flow" means, with respect to the Borrower and its
Subsidiaries for any period, the following, each calculated on a Consolidated
basis for such period without duplication in accordance with GAAP: (a) Net
Income, plus (b) to the extent deducted in determining Net Income (i) income and
franchise taxes, (ii) Interest Expense and (iii) amortization and depreciation
and other similar non-cash charges and (iv) accrued but unpaid Management Fees
less (c) to the extent included in Net Income and not realized in the ordinary
course of business the sum of (i) Interest Expense, (ii) non-cash, non-operating
income and (iii) any items of gain (or plus any noncash items of loss). In the
case of any Permitted Acquisition or sale by the Borrower or any Subsidiary
during any period of calculation, the definition of Operating Cash Flow shall be
adjusted to give effect to such acquisition or sale, as if such acquisition or
sale occurred on the first day of the period.
"Original Credit Agreement" shall have the meaning set forth in
paragraph one of the Statement of Purpose.
"Other Taxes" shall have the meaning assigned thereto in Section 4.9(b).
"Partnership Agreement" means that certain Amended and Restated
Certificate and Agreement of Limited Partnership of the Borrower dated November
3, 1986, as amended, restated or otherwise modified in accordance with the terms
thereof and as may be further amended, restated or otherwise modified in
accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of the
Borrower or any ERISA Affiliates or (b) has at any time within the preceding six
years been maintained for the employees of the Borrower or any of its current or
former ERISA Affiliates.
"Permitted Acquisition" shall mean an acquisition permitted pursuant to
Section 10.4.
10
<PAGE> 18
"Person" means an individual, corporation, partnership, association,
trust, business trust,joint venture, limited liability company, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof specifically
listed herein.
"Pledge Agreement" means a Pledge Agreement executed pursuant to Section
8.13 by the Borrower, as debtor, in favor of the Administrative Agent for the
ratable benefit of the Administrative Agent and Lenders, substantially in the
form of Exhibit H, as amended, restated or otherwise modified.
"Pole Agreement" means any pole attachment agreement or underground
conduit use agreement entered into in connection with the operation of any CATV
System.
"Prime Rate" means, at any time, the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of business on the
day such change in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by the Administrative Agent as its Prime Rate is an
index or base rate and shall not necessarily be its lowest rate charged to its
customers or other banks.
"Register" shall have the meaning assigned thereto in Section 13.10(d).
"Required Lenders" means, at any date, any combination of Lenders
holding at least sixty-six and two-thirds percent (66-2/3%) of the aggregate
outstanding principal amount of the Loans or, if no Loans are at the time
outstanding, any combination of Lenders whose Commitment Percentages aggregate
at least sixty-six and two-thirds percent (66-2/3%).
"Reserve Percentage" means the maximum daily arithmetic reserve
requirement imposed by the Board of Governors of the Federal Reserve System (or
any successor) under Regulation D on Eurocurrency liabilities (as defined in
Regulation D) for the applicable Interest Period as of the first day of such
Interest Period, but subject to any changes in such reserve requirement becoming
effective during the Interest Period. For purposes of calculating the Reserve
Percentage, the reserve requirement shall be as set forth in Regulation D
without benefit of credit for prorations, exemptions or offsets under Regulation
D, and further without regard to whether or not any Lender elects to actually
fund any Loan or portion thereof with Eurocurrency liabilities.
"Revolving Credit Commitment" means (a) as to any Lender, the obligation
of such Lender to make Revolving Credit Loans to the account of the Borrower
hereunder in an aggregate principal amount at any time outstanding not to exceed
the amount set forth opposite such Lender's name on Schedule 1 hereof, as such
amount may be reduced or modified at any time or from time to time pursuant to
the terms hereof and (b) as to all Lenders, the aggregate commitment of all
Lenders to make Revolving Credit Loans, as such amount may be reduced at any
time or from time to time pursuant to the terms hereof. The Revolving Credit
Commitment of all Lenders on the Effective Date shall be Eight Million Dollars
($8,000,000).
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<PAGE> 19
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II hereof.
"Revolving Credit Loans" means the revolving credit loans to be made to
the Borrower pursuant to Section 2.1.
"Revolving Credit Notes" means the separate Amended and Restated
Revolving Credit Notes made by the Borrower payable to the order of each of the
Lenders, substantially in the form of Exhibit A hereto, evidencing the Debt
incurred by the Borrower pursuant to the Revolving Credit Facility, and any
amendments, restatements and other modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in
whole or in part.
"Revolving Credit Termination Date" means the earliest of the dates
referred to in Section 2.6.
"Security Agreements" means the collective reference to the Borrower
Security Agreement and any Subsidiary Security Agreement.
"Security Documents" means the collective reference to the Borrower
Security Agreement and any Subsidiary Security Agreement, Pledge Agreement,
Subordination Agreements and Guaranty Agreement executed and delivered pursuant
to the terms hereof and each other agreement or writing pursuant to which the
Borrower pledges or grants a security interest in the Collateral or other
collateral securing the Obligations or such Person guaranties the payment and/or
performance of the Obligations.
"Solvent" means, as to any Person on a particular date, that such Person
(a) has capital sufficient to carry on its business and transactions and all
business and transactions in which it is about to engage and is able to pay its
debts as they mature, (b) owns property having a present fair saleable value on
a going concern basis, greater than the amount required to pay its probable
liabilities (including contingencies), and (c) does not believe that it will
incur debts or liabilities beyond its ability to pay such debts or liabilities
as they mature.
"Subordinated Debt" means all Debt subordinated in right and time of
payment and on other terms satisfactory to the Required Lenders.
"Subsidiary" means, as to any Person, any corporation, partnership or
other entity of which more than fifty percent (50%) of the outstanding capital
stock or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity is at the time, directly or indirectly, owned by or
the management is otherwise controlled by such Person (irrespective of whether,
at the time, capital stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified, references to "Subsidiary" or
"Subsidiaries" herein shall refer to those of the Borrower.
12
<PAGE> 20
"Subsidiary Security Agreement" means a Security Agreement of even date
executed pursuant to Section 8.13 by a Subsidiary, as debtor, in favor of the
Administrative Agent for the ratable benefit of the Administrative Agent and
Lenders, substantially in the form of Exhibit G hereto, with such changes
thereto as the Administrative Agent may reasonably request in order that such
agreement shall secure the obligations of such Subsidiary under the Guaranty
Agreement to which it is a party, as such security agreement may be amended,
restated or otherwise modified.
"Taxes" shall have the meaning assigned thereto in Section 4.9(a).
"Term Loan" means the term loan to be made to the Borrower pursuant to
Section 3.1.
"Term Loan Commitment" means (a) as to any Lender, the obligation of
such Lender to make the Term Loan to the account of the Borrower hereunder in an
aggregate principal amount not to exceed the amount set forth opposite such
Lender's name on the signature pages hereof, as such amount may be reduced or
modified at any time or from time to time pursuant to the terms hereof and (b)
as to all Lenders, the aggregate commitment of all Lenders to make the Term
Loan. The Term Loan Commitment of all Lenders as of the Closing Date shall be
Twenty-Five Million Dollars ($25,000,000).
"Term Loan Facility" means the term loan facility established pursuant
to Article III hereof.
"Term Loan Maturity Date" means December 31, 2000.
"Term Notes" means the separate Amended and Restated Term Notes made by
the Borrower payable to the order of each of the Lenders, substantially in the
form of Exhibit B hereto, evidencing the Debt incurred by the Borrower pursuant
to the Term Loan Facility, and any amendments, modifications and supplements
thereto, any substitutes therefor, and any replacements, restatements, renewals
or extensions thereof, in whole or in part.
"Termination Event" means: (a) a "Reportable Event" described in Section
4043 of ERISA; or (b) the withdrawal of the Borrower or any ERISA Affiliate from
a Pension Plan during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA; or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA; or (d) the institution of proceedings to terminate, or the appointment of
a trustee with respect to, any Pension Plan by the PBGC; or (e) any other event
or condition which would constitute grounds under Section 4042(a) of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan; or (f) the partial or complete withdrawal of the Borrower or any ERISA
Affiliate from a Multiemployer Plan; or (g) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA; or (h) any event or condition
which results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA; or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
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<PAGE> 21
"Total Funded Debt" means, with respect to the Borrower and its
Subsidiaries at any date of determination and without duplication, all
outstanding Debt thereof on a Consolidated basis.
"Wholly-Owned" means, with respect to a Subsidiary, a Subsidiary all of
the shares of capital stock or other ownership interests of which are, directly
or indirectly, owned or controlled by the Borrower and/or one or more of its
Wholly-Owned Subsidiaries.
SECTION 1.2 General. All terms of an accounting nature not specifically
defined herein shall have the meaning assigned thereto by GAAP. Unless otherwise
specified, a reference in this Agreement to a particular section, subsection,
Schedule or Exhibit is a reference to that section, subsection, Schedule or
Exhibit of this Agreement. Wherever from the context it appears appropriate,
each term stated in either the singular or plural shall include the singular and
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, the feminine and the neuter. Any reference herein to
"Charlotte time" shall refer to the applicable time of day in Charlotte, North
Carolina.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans
Subject to the terms and conditions of this Agreement, each Lender
severally agrees to make Revolving Credit Loans to the Borrower from time to
time from the Effective Date through the Revolving Credit Termination Date as
requested by the Borrower in accordance with the terms of Section 2.2; provided,
that (a) the aggregate principal amount of all outstanding Revolving Credit
Loans (after giving effect to any amount requested) shall not exceed the
Revolving Credit Commitment and (b) the principal amount of outstanding
Revolving Credit Loans from any Lender to the Borrower shall not at any time
exceed such Lender's Revolving Credit Commitment. Each Revolving Credit Loan by
a Lender shall be in a principal amount equal to such Lender's Commitment
Percentage of the aggregate principal amount of Revolving Credit Loans requested
on such occasion. Subject to the terms and conditions hereof, the Borrower may
borrow, repay and reborrow Revolving Credit Loans hereunder until the Revolving
Credit Termination Date.
SECTION 2.2 Procedure for Advance of Revolving Credit Loans
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<PAGE> 22
(a) Requests for Borrowing. The Borrower shall give the Administrative
Agent irrevocable prior written notice (or telephonic notice confirmed by
written notice) in the form attached hereto as Exhibit C-1 (a "Notice of
Revolving Credit Loan Borrowing") not later than 11:00 a.m. (Charlotte time) (i)
on the same Business Day as each Base Rate Loan and (ii) at least three (3)
Business Days before each LIBOR Rate Loan, of its intention to borrow,
specifying (A) the date of such borrowing, which shall be a Business Day, (B)
the amount of such borrowing, which shall be with respect to LIBOR Rate Loans in
an aggregate principal amount of $250,000 or a whole multiple of $100,000 in
excess thereof and with respect to Base Rate Loans in an aggregate principal
amount of $250,000 or a whole multiple of $100,000 in excess thereof, (C)
whether the Revolving Credit Loans are to be LIBOR Rate Loans or Base Rate Loans
(provided that LIBOR Rate Loans shall not be available until three (3) Business
Days after the Effective Date, and (D) in the case of a LIBOR Rate Loan, the
duration of the Interest Period applicable thereto. Notices received after 11:00
a.m. (Charlotte time) shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of
Revolving Credit Loan Borrowing. Any Notice of Revolving Credit Loan Borrowing
delivered on the Effective Date shall request only Base Rate Loans.
(b) Disbursement of Loans. Not later than 1:00 p.m. (Charlotte time) on
the proposed borrowing date, each Lender will make available to the
Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
such Lender's Commitment Percentage of the Revolving Credit Loans to be made on
such borrowing date. The Borrower hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.2 in immediately available funds by crediting such
proceeds to a deposit account of the Borrower maintained with the Administrative
Agent or by wire transfer to such account as may be requested by the Borrower
pursuant to the most recent notice delivered to the Administrative Agent
substantially in the form of Exhibit J (the "Notice of Account Designation").
Subject to Section 4.6 hereof, the Administrative Agent shall not be obligated
to disburse the proceeds of any Revolving Credit Loan requested pursuant to this
Section 2.2 to the extent that any Lender has not made available to the
Administrative Agent its Commitment Percentage of such Loan.
SECTION 2.3 Repayment of Revolving Credit Loans
(a) Repayment on Revolving Credit Termination Date. The Borrower shall
repay the outstanding principal amount of all Revolving Credit Loans in full,
together with all accrued but unpaid interest thereon, on the Revolving Credit
Termination Date.
(b) Mandatory Repayment of Excess Revolving Credit Loans. If at any time
the outstanding principal amount of all Revolving Credit Loans exceeds the
Revolving Credit Commitment, the Borrower shall repay immediately upon notice
from the Administrative Agent, by payment to the Administrative Agent for the
account of the Lenders, the Revolving Credit Loans in an amount equal to such
excess. Each such repayment shall be accompanied by accrued interest on the
amount repaid and any amount required to be paid pursuant to Section 4.8 hereof.
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<PAGE> 23
(c) Optional Repayments. The Borrower may at any time and from time to
time repay the Revolving Credit Loans, in whole or in part, upon at least three
(3) Business Days' irrevocable notice to the Administrative Agent substantially
in the form of Exhibit D-II (a "Notice of Pre-Payment"), specifying the date
and amount of repayment and whether the repayment is of LIBOR Rate Loans or Base
Rate Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender. If any such notice is given, the amount
specified in such notice shall be due and payable on the date set forth in such
notice. Partial repayments shall be in an aggregate amount of $250,000 or a
whole multiple of $100,000 in excess thereof with respect to LIBOR Rate Loans
and $250,000 or a whole multiple of $100,000 in excess thereof with respect to
Base Rate Loans.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrower may not
repay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such repayment is accompanied by any amount
required to be paid pursuant to Section 4.8 hereof.
SECTION 2.4 Revolving Credit Notes. Each Lender's Revolving Credit Loans
and the obligation of the Borrower to repay such Revolving Credit Loans shall be
evidenced by a Revolving Credit Note executed by the Borrower payable to the
order of such Lender. Each Revolving Credit Note shall be dated the date hereof
and shall bear interest on the unpaid principal amount thereof at the applicable
interest rate per annum specified in Section 4.1.
SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment
(a) The Borrower shall have the right at any time and from time to time,
upon at least five (5) Business Days prior written notice to the Administrative
Agent, to permanently reduce, in whole at any time or in part from time to time,
without premium or penalty, the Revolving Credit Commitment of the Lenders in an
aggregate principal amount of not less than $250,000 or any whole multiple of
$100,000 in excess thereof.
(b) If at any time proceeds ("Excess Proceeds") remain after the
prepayment of Term Loan pursuant to Section 3.5, the Revolving Credit Commitment
shall be permanently reduced by an amount equal to the amount of such Excess
Proceeds.
(c) Each permanent reduction permitted or required pursuant to this
Section 2.5 shall be accompanied by a payment of principal sufficient to reduce
the aggregate outstanding Revolving Credit Loans of the Lenders after such
reduction to the Revolving Credit Commitment as so reduced and by payment of
accrued interest as of the date of any such payment on the amount of such repaid
principal. Any reduction of the Revolving Credit Commitment to zero shall be
accompanied by payment of all outstanding Obligations and termination of the
Revolving Credit Commitment and the Revolving Credit Facility. If the reduction
of the Revolving Credit Commitment requires the repayment of any LIBOR Rate
Loan, such reduction may be made only on the last day of the then current
Interest Period applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 4.8 hereof.
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<PAGE> 24
SECTION 2.6 Termination of Revolving Credit Facility. The Revolving
Credit Facility shall terminate on the earliest of (a) December 31, 2000, (b)
the date of permanent reduction of the Revolving Credit Commitment to zero
pursuant to Section 2.5 or (c) the date of termination by the Administrative
Agent on behalf of the Lenders pursuant to Section 11.2(a).
SECTION 2.7 Use of Proceeds. The Borrower shall use the proceeds of the
Revolving Credit Loans (a) to the cash purchase price of the InterMedia Purchase
and other Permitted Acquisitions and the acquisition of other Capital Assets and
(b) for working capital and general business requirements of the Borrower and
its Subsidiaries, and (c) to refinance the existing facility under the Original
Credit Agreement pursuant to the terms hereof and (d) to pay fees and expenses
associated with the transactions contemplated hereby.
SECTION 2.8 Security. The Obligations of the Borrower under the
Revolving Credit Facility shall be secured as provided in the Security
Documents.
ARTICLE III
TERM LOAN FACILITY
SECTION 3.1 Term Loan and Use of Proceeds. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make a Term Loan
to the Borrower on the Effective Date to fund the cash purchase price of the
InterMedia Purchase and for other purposes permitted by Section 2.7 hereof. The
Term Loan shall be funded by each Lender in a principal amount equal to such
Lender's Commitment Percentage of the total principal amount of the Term Loan
requested on the Effective Date and the aggregate amount of the Term Loan shall
be in a principal amount equal to such Lender's Term Loan Commitment.
SECTION 3.2 Procedure for Advance of Term Loan. The Borrower shall give
the Administrative Agent a Notice of Term Loan Borrowing in the form attached
hereto as Exhibit C-II (the "Notice of Term Loan Borrowing") prior to 11:00 a.m.
(Charlotte time) on the Effective Date requesting that the Lenders make the Term
Loan as a Base Rate Loan on such date. To the extent any conversion of the
applicable interest rate is effected pursuant to Section 4.2, each borrowing of
a Base Rate Loan shall be in an aggregate principal amount of at least $250,000
or any integral multiple of $100,000 in excess thereof and each borrowing of a
LIBOR Rate Loan shall be in an aggregate principal amount of $250,000 or any
integral multiple of $100,000 in excess thereof. Upon receipt of such Notice of
Term Loan Borrowing from the Borrower, the Administrative Agent shall promptly
notify each Lender thereof. Not later than 1:00 p.m. (Charlotte time) on the
Effective Date, each Lender will make available to the Administrative Agent for
the account of the Borrower, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, the amount of such Lender's
Term Loan to be made on such date. The Borrower hereby irrevocably authorize the
Administrative Agent to disburse the proceeds of each of the Term Loan in
immediately available funds by wire transfer to such Person or Persons as may be
designated by the Borrower pursuant to the Notice of Term Loan Borrowing.
SECTION 3.3 Repayment of Term Loan. The Borrower shall repay the
aggregate outstanding principal amount of the Term Loan in consecutive quarterly
installments on the last
17
<PAGE> 25
day of each March, June, September, and December commencing March 31, 1999,
based upon the following amortization schedule:
<TABLE>
<CAPTION>
Payment Date Principal Installment
------------ ---------------------
<S> <C>
March 31, 1999 $312,500
June 30, 1999 312,500
September 30, 1999 312,500
December 31, 1999 312,500
March 31, 2000 625,000
June 30, 2000 625,000
September 30, 2000 625,000
December 31, 2000 21,875,000
Total Principal
Installments $25,000,000
===========
</TABLE>
If not sooner paid, the Term Loan shall be paid in full, together with accrued
interest thereon, on the Term Loan Maturity Date.
SECTION 3.4 Optional Prepayments of Term Loan. The Borrower shall have
the right at any time and from time to time, upon at least three (3) Business
Days prior written notice in the form of a Notice of Pre-Payment to the
Administrative Agent, to prepay the Term Loan in whole or in part without
premium or penalty except as provided below. Each optional prepayment of the
Term Loan hereunder shall be in an aggregate principal amount of at least
$250,000 or any whole multiple of $250,000 in excess thereof, shall be applied
to the outstanding principal installments of the Term Loan and shall be
accompanied by accrued interest on the amount prepaid through the date of
prepayment and by any payment required under Section 4.8.
SECTION 3.5 Mandatory Prepayments of Term Loan
(a) Proceeds from the Disposition of Assets. The Borrower shall make
mandatory principal prepayments on the Term Loan in an amount equal to the
aggregate Net Proceeds, as defined below, from any sale or disposition of assets
permitted under Section 10.6(c) and (d) to the extent that (i) the proceeds of
such sale or disposition are not reinvested as permitted pursuant to this
Agreement within six (6) months of such sale or disposition and (ii) the amount
of the Net Proceeds from such sale or disposition exceeds $250,000. Such
prepayment shall be made not later than the first (1st) Business Day which is
six (6) months following the date of the consummation of any such transaction.
As used herein, "Net Proceeds" means the gross proceeds received by the Borrower
or any Subsidiary from any such transaction net of the reasonable costs thereof.
(b) Insurance Proceeds. The Borrower shall make mandatory principal
prepayments on the Term Loan in amounts equal to one hundred percent (100%) of
the proceeds of any payment under any casualty insurance policy not applied
within one hundred and twenty (120) days of receipt thereof toward the repair or
replacement of the related assets covered thereby.
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<PAGE> 26
(c) Excess Cash Flow. The Borrower shall make annual mandatory principal
prepayments on the Term Loan in amounts equal to the percentage of Excess Cash
Flow, if any, corresponding to the applicable Leverage Ratio as set forth below
for each annual period ending on December 31 commencing with the annual period
ending December 31, 1998. Annual Excess Cash Flow prepayments shall be due and
payable on the date occurring one hundred and twenty days (120) after the close
of each such annual period for which the corresponding Leverage Ratio shall be
measured.
<TABLE>
<CAPTION>
Leverage Ratio Percentage of Excess Cash Flow
-------------- ------------------------------
<S> <C>
greater than or
equal to 4.00 to 1.00 50.0%
less than 4.00 to 1.00
but greater than or
equal to 3.00 to 1.00 25.0%
less than 3.00 to 1.00 0.0%
</TABLE>
(d) Manner of Payment. Each mandatory prepayment under Section 3.5 shall
be applied to the outstanding principal balance of the Term Loan in the inverse
order of maturity thereof . Each such prepayment shall be accompanied by accrued
interest on the amount prepaid and by any payment required under Section 4.8
hereof.
SECTION 3.6. Term Notes. Each Lender's Term Loan and the obligation of
the Borrower to repay such Term Loan shall be evidenced by Term Notes. Each Term
Note shall bear interest on the unpaid principal amount thereof at the
applicable interest rate per annum specified in Section 4.1.
SECTION 3.7. Security. The Obligations of the Borrower under the Term
Loan Facility shall be secured as provided in the Security Documents.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1. Interest
(a) Interest Rate Options. Subject to the provisions of this Section
4.1, at the election of the Borrower, the principal balance of any Loan shall
bear interest at either the Base Rate or the LIBOR Rate plus, in each case, the
Applicable Margin as set forth below. The Borrower shall select the rate of
interest and Interest Period, if any, applicable to any Loan at the time a
Notice of Revolving Credit Borrowing is given pursuant to Section 2.2 or at the
time a Notice of Conversion/Continuation is given pursuant to Section 4.2. Each
Loan bearing interest based on the Base Rate shall be a "Base Rate Loan", and
each Loan bearing interest based on the LIBOR Rate shall be a "LIBOR Rate Loan".
Any Loan as to which the Borrower has not duly specified an interest rate as
provided herein shall be deemed a Base Rate Loan. No LIBOR Rate Loans shall be
available until three (3) Business Days after the Effective Date.
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<PAGE> 27
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 4.1(a), shall elect
an interest period (each, an "Interest Period") to be applicable to such Loan,
which Interest Period shall be a period of one (1), two (2), three (3) or six
(6) months; provided that:
(i) the Interest Period shall commence on the date of advance of
or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall
commence on the date on which the immediately preceding Interest Period
expires;
(ii) if any Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the
immediately succeeding Business Day; provided, that if any Interest
Period would otherwise expire on a day that is not a Business Day but is
a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the immediately preceding
Business Day;
(iii) any Interest Period 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 at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period;
(iv) no Interest Period shall extend beyond the Revolving Credit
Termination Date or the Term Loan Maturity Date, as applicable, and no
Interest Period shall be selected by the Borrower which would result in
the repayment of any LIBOR Rate Loan prior to the end of an Interest
Period; and
(v) there shall be no more than three (3) Interest Periods in
effect at any time.
(c) Applicable Margin. The Applicable Margin provided for in Section
4.1(a) with respect to the Loans (the "Applicable Margin") shall (i) on the
Closing Date equal the percentages set forth in the certificate delivered
pursuant to Section 5.2(e) and (ii) for each fiscal quarter thereafter be
determined by reference to the Leverage Ratio as of the end of the fiscal
quarter immediately preceding the delivery of the applicable Officer's
Compliance Certificate as follows:
<TABLE>
<CAPTION>
Applicable Margin Per Annum
Leverage Ratio Base Rate + LIBOR Rate +
-------------- ---------------------------
<S> <C> <C>
Equal to or greater than 1.000% 2.250%
5.00 to 1.0.
Equal to or greater than 0.750% 2.000%
4.50 to 1.0 but less than
5.00 to 1.0.
Equal to or greater than 0.500% 1.750%
</TABLE>
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<PAGE> 28
<TABLE>
<S> <C> <C>
4.00 to 1.00 but less than
4.5 0 to 1.00
Equal to or greater than 0.250% 1.500%
3.50 to 1.00 but less than
4.00 to 1.00
Equal to or greater than
3.00 to 1.00 but less than
3.50 to 1.00 0.000% 1.250%
Less than 3.00 to 1.0. 0.000% 1.000%
</TABLE>
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent upon the third (3rd) Business Day after receipt by the
Administrative Agent of quarterly financial statements for the Borrower and its
Subsidiaries and the accompanying Officer's Compliance Certificate setting forth
the Leverage Ratio of the Borrower and its Subsidiaries as of the most recent
fiscal quarter end. Subject to Section 4.1(d), in the event the Borrower fails
to deliver such financial statements and certificate within the time required by
Sections 7.1 and 7.2 hereof, the Applicable Margin shall be the highest
Applicable Margin set forth above until the delivery of such financial
statements and certificate.
(d) Default Rate. Upon the occurrence and during the continuance of an
Event of Default, (i) the Borrower shall no longer have the option to request
LIBOR Rate Loans, (ii) all outstanding LIBOR Rate Loans shall bear interest at a
rate per annum two percent (2%) in excess of the rate then applicable to LIBOR
Rate Loans until the end of the applicable Interest Period and thereafter at a
rate equal to two percent (2%) in excess of the rate then applicable to Base
Rate Loans, and (iii) all outstanding Base Rate Loans shall bear interest at a
rate per annum equal to two percent (2%) in excess of the rate then applicable
to Base Rate Loans (in each such case plus the Applicable Margin). Interest
shall continue to accrue on the Notes after the filing by or against the
Borrower of any petition seeking any relief in bankruptcy or under any act or
law pertaining to insolvency or debtor relief, whether state, federal or
foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan
shall be payable in arrears on the last Business Day of each fiscal quarter
commencing March 31, 1998, and interest on each LIBOR Rate Loan shall be payable
on the last day of each Interest Period applicable thereto, and if such Interest
Period extends over three (3) months, at the end of each three (3) month
interval during such Interest Period. All LIBOR interest provided hereunder
shall be computed on the basis of a 360-day year and assessed for the actual
number of days elapsed. Interest with respect to each Base Rate Loan and the
commitment fee referenced in Section 4.3(a) and any other rates and fees
hereunder shall be computed on the basis of a 365/366-day year and assessed for
the actual number of days elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
exceed the highest rate permissible under any Applicable Law which a court of
competent jurisdiction shall, in a final determination, deem applicable hereto.
In the event that such a court determines that the Lenders have contracted for,
charged or received interest hereunder in excess of the highest applicable rate,
the rate in effect hereunder shall automatically be reduced to the maximum rate
permitted by
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Applicable Law and the Lenders shall at the Administrative Agent's option
promptly refund to the Borrower any interest received by Lenders in excess of
the maximum lawful rate or shall apply such excess to the principal balance of
the Obligations. It is the intent hereof that the Borrower not pay or contract
to pay, and that neither the Administrative Agent nor any Lender charge, receive
or contract to receive, directly or indirectly in any manner whatsoever,
interest in excess of the maximum non-usurious rate that may be paid by the
Borrower under Applicable Law.
SECTION 4.2. Notice and Manner of Conversion or Continuation of Loans .
Provided that no Event of Default has occurred and is then continuing, the
Borrower shall have the option to (a) convert at any time following the third
(3rd) Business Day after the Effective Date all or any portion of their
outstanding Base Rate Loans that are Term Loan in a principal amount equal to
$250,000 or any whole multiple of $100,000 in excess thereof into one or more
LIBOR Rate Loans that are Term Loan, (b) convert at any time all or any portion
of their outstanding Base Rate Loans that are Revolving Credit Loans in a
principal amount equal to $250,000 or any whole multiple of $100,000 in excess
thereof into one or more LIBOR Rate Loans that are Revolving Credit Loans, and
(c) upon the expiration of any Interest Period, convert all or any part of their
outstanding LIBOR Rate Loans into Base Rate Loans in a principal amount equal to
$250,000 or a whole multiple of $100,000 in excess thereof or to continue such
LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrower desires to convert
or continue Loans as provided above, the Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached as Exhibit D-I (a
"Notice of Conversion/Continuation") not later than 1 1:00 a.m. (Charlotte time)
three (3) Business Days before the day on which a proposed conversion or
continuation of such Loan is to be effective specifying (i) the Loans to be
converted or continued, and, in the case of a LIBOR Rate Loan to be converted or
continued, the last day of the Interest Period therefor, (ii) the effective date
of such conversion or continuation (which shall be a Business Day), (iii) the
principal amount of such Loans to be converted or continued, and (iv) the
Interest Period to be applicable to such converted or continued LIBOR Rate Loan.
The Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
SECTION 4.3 Commitment Fees
(a) Commitment Fee. Commencing on the Closing Date, the Borrower shall
pay to the Administrative Agent for the ratable account of the Lenders, a
non-refundable commitment fee on the average daily unused portion of the
Revolving Credit Commitment based on the rate set forth below:
<TABLE>
<CAPTION>
Leverage Ratio Commitment Fee
<S> <C>
Equal to or greater than 0.500%
4.00 to 1.00
Less than 4.00 to 1.00 0.375%
</TABLE>
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<PAGE> 30
The Commitment fee shall be payable in arrears on the last Business Day of each
fiscal quarter during the term of this Agreement and on the Termination Date.
Such commitment fee shall be distributed by the Administrative Agent to the
Lenders pro rata in accordance with the Lenders' respective Commitment
Percentage. Adjustments, if any, in the Commitment Fee shall occur
simultaneously with any corresponding change in the Applicable Margin pursuant
to Section 4.1(c).
(b) Administrative Agent's Fee. In order to compensate the
Administrative Agent for administering the Loans and its other obligations
hereunder, the Borrower agrees to pay to the Agent an annual fee commencing on
the Closing Date and each anniversary thereof in accordance with the fee letter
agreement referred to in Section 5.2(e)(iii).
(c) Other Fees. In order to compensate First Union Capital Markets Corp.
("FUCMC") for structuring and syndicating the Loans, the Borrower agrees to pay
thereto on the Closing Date the Arrangement Fee set forth in the separate fee
letter between the Borrower, the Administrative Agent and FUCMC dated October
14, 1997, and in order to compensate the Lenders for providing their
commitments, the Borrower agrees to pay on the Closing Date to the
Administrative Agent for the account of each Lender the Facility Fee set forth
in such fee letter.
SECTION 4.4 Manner of Payment. Each payment (including repayments
described in Articles II and III) by the Borrower on account of the principal of
or interest on the Loans or of any fee or other amounts payable to the Lenders
under this Agreement or any Note shall be made not later than 1:00 p.m.
(Charlotte time) on the date specified for payment under this Agreement to the
Administrative Agent for the account of the Lenders pro rata in accordance with
their respective Commitment Percentages at the Administrative Agent's Office, in
Dollars, in immediately available funds and shall be made without any set-off,
counterclaim or deduction whatsoever. Any payment received after such time but
before 2:00 p.m. (Charlotte time) on such day shall be deemed a payment on such
date for the purposes of Section 11.1, but for all other purposes shall be
deemed to have been made on the next succeeding Business Day. Any payment
received after 2:00 p.m. (Charlotte time) shall be deemed to have been made on
the next succeeding Business Day for all purposes. Upon receipt by the
Administrative Agent of each such payment the Administrative Agent shall credit
each Lender's account with its pro rata share of such payment in accordance with
such Lender's Commitment Percentage and shall wire advice of the amount of such
credit to each Lender. Each payment to the Administrative Agent of
Administrative Agent's fees or expenses shall be made for the account of the
Administrative Agent. Subject to Section 4.1(b)(ii), if any payment under this
Agreement or any Note shall be specified to be made upon a day which is not a
Business Day, it shall be made on the next succeeding day which is a Business
Day and such extension of time shall in such case be included in computing any
interest if payable along with such payment.
SECTION 4.5 Crediting of Payments and Proceeds. In the event that the
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 11.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied first to all expenses then due
and payable by the Borrower hereunder, then to all indemnity obligations then
due and payable by the Borrower hereunder, then to all Administrative Agent's
fees then due and
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payable, then to all commitment and other fees and commissions then due and
payable, then to accrued and unpaid interest on the Notes and any termination
payments due in respect of a Hedging Agreement with any Lender (pro rata in
accordance with all such amounts due) and then to the principal amount of the
Notes.
SECTION 4.6. Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by Administrative Agent . The obligations of the Lenders
under this Agreement to make the Loans are several and are not joint or joint
and several. Unless the Administrative Agent shall have received notice from a
Lender prior to a proposed borrowing date that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of the
amount to be borrowed on such date (which notice shall not release such Lender
of its obligations hereunder), the Administrative Agent may assume that such
Lender has made such portion available to the Administrative Agent on the
proposed borrowing date in accordance with Sections 2.2(b) and 3.2, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If such amount is made
available to the Administrative Agent on a date after such borrowing date, such
Lender shall pay to the Administrative Agent on demand an amount, until paid,
equal to the product of (a) the amount of such Lender's Commitment Percentage of
such borrowing, times (b) the daily average Federal Funds Rate during such
period as determined by the Administrative Agent, times (c) a fraction the
numerator of which is the number of days that elapse from and including such
borrowing date to the date on which such Lender's Commitment Percentage of such
borrowing shall have become immediately available to the Administrative Agent
and the denominator of which is 360. A certificate of the Administrative Agent
with respect to any amounts owing under this Section 4.6 shall be conclusive,
absent manifest error. If such Lender's Commitment Percentage of such borrowing
is not made available to the Administrative Agent by such Lender within three
(3) Business Days of such borrowing date, the Administrative Agent shall be
entitled to recover such amount made available by the Administrative Agent with
interest thereon at the rate per annum applicable to Base Rate Loans hereunder,
on demand, from the Borrower. The failure of any Lender to make its Commitment
Percentage of any Loan available shall not relieve it or any other Lender of its
obligation, if any, hereunder to make its Commitment Percentage of such Loan
available on such borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its Commitment Percentage of such Loan
available on the borrowing date.
SECTION 4.7. Changed Circumstances
(a) Circumstances Affecting LIBOR Rate Availability. If, with respect to
any Interest Period, the Administrative Agent or any Lender (after consultation
with Administrative Agent) shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in
eurodollars, in the applicable amounts are not being offered to the
Administrative Agent or such Lender for such Interest Period, then the
Administrative Agent shall forthwith give notice thereof to the Borrower.
Thereafter, until the Administrative Agent notifies the Borrower that such
circumstances no longer exist (which notification shall be given within thirty
(30) days after the Administrative Agent obtains actual knowledge that such
circumstances no longer exist), the obligation of the Lenders to make LIBOR Rate
Loans, and the right of the Borrower to convert any Loan to or continue any Loan
as a LIBOR Rate Loan, shall be suspended, and the Borrower shall repay in full
(or cause to be
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<PAGE> 32
repaid in full) the then outstanding principal amount of each such LIBOR Rate
Loan, together with accrued interest thereon, on the last day of the then
current Interest Period applicable to such LIBOR Rate Loan or convert the then
outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan as
of the last day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof,
the introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Authority, central bank or comparable agency, shall make it unlawful
or impossible for any of the Lenders (or any of their respective Lending
Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate
Loan, such Lender shall promptly give notice (and, if available, a copy) thereof
to the Administrative Agent and the Administrative Agent shall promptly give
notice (and such copy, if applicable) to the Borrower and the other Lenders.
Thereafter, until Administrative Agent notifies the Borrower that such
circumstances no longer exist (which notification shall be given within thirty
(30) days after the Administrative Agent obtains actual knowledge that such
circumstances no longer exist), (i) the obligations of the Lenders to make LIBOR
Rate Loans and the right of the Borrower to convert any Loan or continue any
Loan as a LIBOR Rate Loan shall be suspended and thereafter the Borrower may
select only Base Rate Loans hereunder, and (ii) if any of the Lenders may not
lawfully continue to maintain a LIBOR Rate Loan to the end of the then current
Interest Period applicable thereto as a LIBOR Rate Loan, the applicable LIBOR
Rate Loan shall immediately be converted to a Base Rate Loan for the remainder
of such Interest Period.
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Authority, central
bank or comparable agency:
(i) shall subject any of the Lenders (or any of their respective
Lending Offices) to any tax, duty or other charge with respect to any
LIBOR Rate Loan or any Note, or shall change the basis of taxation of
payments to any of the Lenders (or any of their respective Lending
Offices) of the principal of or interest on any LIBOR Rate Loan or any
Note, or any other amounts due under this Agreement in respect thereof
(except for changes in the rate of tax on the overall net income of any
of the Lenders or any of their respective Lending Offices imposed by the
jurisdiction in which such Lender is organized or is or should be
qualified to do business or such Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit, insurance or capital or
similar requirement against assets of, deposits with or for the account
of, or credit extended by any of the Lenders (or any of their respective
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<PAGE> 33
Lending Offices) or shall impose on any of the Lenders (or any of their
respective Lending Offices) or the foreign exchange and interbank
markets any other condition affecting any LIBOR Rate Loan or any Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or to reduce the yield or amount of
any sum received or receivable by any of the Lenders under this Agreement or
under the Notes in respect of a LIBOR Rate Loan, then such Lender shall promptly
notify the Administrative Agent, and the Administrative Agent shall promptly
notify the Borrower of such fact and demand compensation therefor and, within
fifteen (15) days after such notice by Administrative Agent, the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or Lenders for such increased cost or reduction. The Administrative Agent
will promptly notify the Borrower of any event of which it has knowledge which
will entitle such Lender to compensation pursuant to this Section 4.7(c);
provided, that the Administrative Agent shall incur no liability whatsoever to
the Lenders or the Borrower in the event it fails to do so. A certificate of the
Administrative Agent setting forth the basis for determining such additional
amount or amounts necessary to compensate such Lender or Lenders shall be
conclusively presumed to be correct save for manifest error. Any Lender claiming
compensation under this Section 4.7(c) shall notify the Borrower of any event
occurring after the Closing Date entitling such Lender to such compensation as
promptly as practicable (including, if available, a copy of the applicable
request or directive relating to such compensation); provided that if such
Lender fails to give such notice to the Administrative Agent within forty-five
(45) days after it obtains actual knowledge of such an event, such Lender shall,
with respect to such compensation in respect of any costs resulting from such
event, only be entitled to payment under this Section 4.7(c) for costs incurred
from and after the date forty-five (45) days prior to the date that such Lender
does give such notice.
SECTION 4.8. Indemnity. The Borrower hereby indemnifies each of the
Lenders against any loss or expense which may arise or be attributable to each
Lender's obtaining, liquidating or employing deposits or other funds acquired to
effect, fund or maintain the Loans (a) as a consequence of any failure by the
Borrower to make any payment when due of any amount due hereunder in connection
with a LIBOR Rate Loan, (b) due to any failure of the Borrower to borrow on a
date specified therefor in a Notice of Borrowing or Notice of
Continuation/Conversion or (c) due to any payment, prepayment or conversion of
any LIBOR Rate Loan on a date other than the last day of the Interest Period
therefor. Each Lender's calculations of any such loss or expense shall be
furnished to the Borrower and shall be conclusive, absent manifest error.
SECTION 4.9. Taxes
(a) Payments Free and Clear. Any and all payments by the Borrower
hereunder or under the Notes shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholding, and all liabilities with respect thereto excluding, (i)
in the case of each Lender and the Administrative Agent, income and franchise
taxes imposed by the jurisdiction under the laws of which such Lender or
Administrative Agent (as the case may be) is organized or is or should be
qualified to do business or any political subdivision thereof and (ii) in the
case of each Lender, income and franchise taxes imposed by the jurisdiction of
such Lender's Lending Office or any political
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<PAGE> 34
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note, (A) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
4.9) such Lender or Administrative Agent (as the case may be) receives an amount
equal to the amount such party would have received had no such deductions been
made, (B) the Borrower shall make such deductions, (C) the Borrower shall pay
the full amount deducted to the relevant taxing authority or other authority in
accordance with Applicable Law, and (D) the Borrower shall deliver to the
Administrative Agent evidence of such payment to the relevant taxing authority
or other authority in the manner provided in Section 4.9(d).
(b) Stamp and Other Taxes. In addition, the Borrower shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes (other than excise and
property taxes to which any Administrative Agent or Lender would have been
subject in the absence of this Agreement and the provision for security in
connection with the execution of this Agreement), levies of the United States or
any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the other Loan Documents, or the perfection of any rights or security
interest in respect thereto (hereinafter referred to as "Other Taxes").
(c) Indemnity. The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.9) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses, unless such penalties, interest or expenses
arise solely as the result of late payment or willful negligence by the
applicable Lender or Administrative Agent) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. Such indemnification shall be made within thirty (30) days from the
date such Lender or the Administrative Agent, as the case may be, makes written
demand therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms 4224 or Forms
1001, as applicable (or successor forms) properly completed and certifying in
each case that such Lender is entitled to a complete exemption from withholding
or deduction for or on account of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form,
as the case may be, to establish an exemption
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<PAGE> 35
from United States backup withholding taxes. Each such Lender further agrees to
deliver to the Borrower, with a copy to the Administrative Agent, a Form 1001 or
4224 and Form W-8 or W-9, or successor applicable forms or manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Borrower,
certifying in the case of a Form 1001 or 4224 that such Lender is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes (unless in any such case an event (including
without limitation any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
such forms inapplicable or the exemption to which such forms relate unavailable
and such Lender notifies the Borrower and the Administrative Agent that it is
not entitled to receive payments without deduction or withholding of United
States federal income taxes) and, in the case of a Form W-8 or W-9, establishing
an exemption from United States backup withholding tax.
(f) Survival. The agreements and obligations of the Borrower contained
in this Section 4.9 shall survive for one year after the payment in full of the
Obligations and the termination of the Commitments.
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ARTICLE V
CLOSING, CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1. Closing. The closing shall take place at the offices of
Kennedy Covington Lobdell & Hickman, 100 North Tryon Street, Suite 4200,
Charlotte, North Carolina 28202 at 10: 00 a.m. on December 31, 1997, or on such
other date as the parties hereto shall mutually agree.
SECTION 5.2. Conditions to Effectiveness and Initial Loans. The
obligation of the Lenders to make the Loans on the Effective Date is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. The following Loan Documents, in form and
substance satisfactory to the Administrative Agent and each Lender:
(i) this Agreement;
(ii) the Notes; and
(iii) the Borrower Security Agreement
shall have been duly authorized, executed and delivered by the Borrower shall be
in full force and effect and no default shall exist thereunder, and the Borrower
shall have delivered original counterparts thereof to the Administrative Agent.
(b) Collateral.
(i) Filings and Recordings. All filings and recordations that are
necessary to perfect the security interests of the Lenders in the
Collateral described in the Security Documents shall have been duly
executed by the Borrower and forwarded for filing in all appropriate
locations and the Administrative Agent shall have received evidence
satisfactory to the Administrative Agent that once filed such security
interests will constitute valid and perfected first priority Liens
therein.
(ii) Lien Search. The Borrower shall have delivered the results
of a Lien search of all filings made against the Borrower under the
Uniform Commercial Code as in effect in any state in which any of their
assets are located, indicating among other things that their assets are
free and clear of any Lien except for the Liens permitted by Section
10.3.
(iii) Insurance. The Administrative Agent shall have received
certificates of insurance, evidence of payment of all insurance
premiums, and, if requested by the Administrative Agent, copies
(certified by the Borrower) of insurance policies in the form required
under Section 8.3 and the Security Documents and otherwise in form and
substance reasonably satisfactory to the Administrative Agent.
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<PAGE> 37
(iv) Refinancing. On the Effective Date hereunder, (i) all loans
under the Original Credit Agreement ("Existing Loans") made by any
lender who is not a Lender hereunder shall be repaid in full and the
commitments and other obligations and (except as expressly set forth in
the Original Credit Agreement) the rights of such lender shall be
terminated, (ii) the Administrative Agent shall make such transfers of
funds and the Borrower shall make such repayments as are necessary in
order that the outstanding balance of Existing Loans, together with any
Loans funded on the Effective Date, reflect the Commitments of the
Lenders hereunder, there shall have been paid in cash in full all
accrued but unpaid interest due on the Existing Loans to but excluding
the Effective Date, (v) there shall have been paid in cash in full all
accrued but unpaid fees under the Original and Restated Credit Agreement
due to but excluding the Closing Date and all other amounts, costs and
expenses then owing to any of the lenders thereunder and/or any Agent,
as agent under the Credit Agreement, in each case to the satisfaction of
such Agent or lender, as the case may be, regardless of whether or not
such amounts would otherwise be due and payable at such time pursuant to
the terms of the Original Credit Agreement and (vi) all outstanding
promissory notes issued by the Borrowers to the lenders under the
Original Credit Agreement shall be promptly returned to the
Administrative Agent who shall forward such notes to the Borrower. Until
the occurrence on the Effective Date of the actions set forth in clauses
(i) through (vi) of this paragraph, the Original Credit Agreement shall
remain in full force and effect in accordance with its terms.
(c) Closing Certificates; etc.
(i) Officer's Certificate. The Administrative Agent shall have
received a certificate of Borrower, signed on its behalf by the chief
executive or the chief financial officer (or other officer reasonably
acceptable to the Administrative Agent) of the Managing General Partner,
in form and substance satisfactory to the Administrative Agent, to the
effect that all representations and warranties of the Borrower contained
in this Agreement and the other Loan Documents are true, correct and
complete; that the Borrower is not in violation of any of the covenants
contained in this Agreement and the other Loan Documents; that, after
giving effect to the transactions contemplated by this Agreement, no
Default or Event of Default has occurred and is continuing; and that the
Borrower has satisfied each of the closing conditions to be satisfied by
it.
(ii) Closing Certificate of Borrower. The Administrative Agent
shall have received a certificate of the Borrower, signed on its behalf
by the secretary or assistant secretary of the Managing General Partner
certifying that attached thereto is a true and complete copy of the
certificate of limited partnership of the Borrower and all amendments
thereto, certified as of a recent date by the appropriate Governmental
Authority in its jurisdiction of formation; that attached thereto is a
true and complete copy of the Partnership Agreement of the Borrower as
in effect on the date of such certification; that attached thereto is a
true and complete copy of resolutions duly adopted by the Board of
Directors of the Managing General Partner, authorizing on behalf of the
Borrower the borrowings contemplated hereunder and the execution,
delivery and
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performance of this Agreement and the other Loan Documents; and as to
the incumbency and genuineness of the signature of each officer of the
Managing General Partner executing, on behalf of the Borrower, the Loan
Documents to which the Borrower is a party.
(iii) Closing Certificate of Managing General Partner. The
Administrative Agent shall have received a certificate of the secretary
or assistant secretary of the Managing General Partner certifying that
attached thereto is a true and complete copy of the certificate and
articles of incorporation of the Managing General Partner and all
amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of formation; and that
attached thereto is a true and complete copy of the by-laws of the
Managing General Partner as in effect on the date of such certification.
(iv) Certificates of Good Standing. The Administrative Agent
shall have received certificates as of a recent date of the good
standing of the Borrower and the Managing General Partner under the laws
of their respective jurisdictions of organization and such other
jurisdictions requested by the Administrative Agent and, if not covered
by such good standing certificates, a certificate of the relevant taxing
authorities of such jurisdictions certifying that the Borrower has filed
required tax returns and owes no delinquent taxes.
(v) Opinions of Counsel. (I) The Administrative Agent shall
have received favorable opinions of counsel to the Borrower addressed to
the Administrative Agent and Lenders (A) with respect to the Borrower,
the Loan Documents, the Collateral and such other matters as the Lenders
shall request and (B) with respect to FCC and other regulatory matters,
each in form and substance reasonably satisfactory to the Administrative
Agent.
(II) The Administrative Agent shall have received
copies of the opinions to be delivered by any counsel, including, but
not limited to regulatory counsel, to any party to the Acquisition
Agreement, accompanied, in each case, by language within such opinions
stating that the Administrative Agent and the Lenders are entitled to
rely on such opinions as if they were addressed to the Administrative
Agent.
(vi) Tax Forms. The Administrative Agent shall have received
copies from each Lender of the United States Internal Revenue Service
forms required by Section 4.9(e) hereof.
(d) Consents; No Adverse Change.
(i) Governmental and Third Party Approvals. Other than as set
forth on Schedule 6.1 (d) all necessary approvals, authorizations and
consents, if any be required, of any Person and of all Governmental
Authorities and courts having jurisdiction with respect to the
transactions contemplated by the Loan Documents and the Acquisition
Agreement shall have been obtained.
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(ii) Permits and Licenses. All material permits and licenses,
including permits and licenses required under Applicable Laws, necessary
to the conduct of business by the Borrower and its Subsidiaries,
including without limitation all FCC Licenses, shall have been obtained.
(iii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or
proposed before any Governmental Authority to enjoin, restrain, or
prohibit, or to obtain substantial damages in respect of, or which is
related to or arises out of this Agreement or the other Loan Documents
or the consummation of the transactions contemplated hereby or thereby,
or which, in the Administrative Agent's discretion, would make it
inadvisable to consummate the transactions contemplated by this
Agreement and such other Loan Documents.
(iv) No Material Adverse Change. There shall not have occurred
any material adverse change in the business, condition (financial or
otherwise) operations, prospects or properties of the Borrower and its
Subsidiaries, or any event, condition or state of facts that will or
could be reasonably expected to have a Material Adverse Effect.
(v) No Event of Default. No Default or Event of Default shall
have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received and reviewed recent annual and interim financial statements of
the Borrower referenced in Section 6.1(r), and its Subsidiaries and
other financial information, all in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders.
(ii) Financial Condition Certificate. The Borrower shall have
delivered to the Administrative Agent a certificate, in form and
substance satisfactory to the Administrative Agent, and certified as
accurate in all material respects by the chief executive officer or
chief financial officer of the Borrower(or other officer reasonably
acceptable to the Administrative Agent), that (A) attached thereto are
calculations reasonably acceptable to the Administrative Agent
evidencing compliance on a pro forma basis with the covenants contained
in Article IX hereof and Section 11(a)(ii) of the Partnership Agreement,
(B) the financial projections previously delivered to the Administrative
Agent are based on reasonable and good faith estimates and assumptions
of senior management or the Managing General Partner of the financial
condition and operations of the Borrower and its Subsidiaries for the
period covered thereby and (C) attached thereto is a calculation of the
Applicable Margin in accordance with Section 4.1(c) and calculation of
the Commitment Fee level in accordance with Section 4.3 as of the
Closing Date.
(iii) Payment at Closing; Fee Letters. There shall have been paid
by the Borrower to the Administrative Agent on the Closing Date the fees
set forth in Sections
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4.3(b) and (c), and any other accrued and unpaid fees or commissions due
hereunder (including, without limitation, legal fees and expenses), and
to any other Person such amount as may be due thereto in connection with
the transactions contemplated hereby, including all taxes, fees and
other charges in connection with the execution, delivery, recording,
filing and registration of any of the Loan Documents.
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Revolving Credit Borrowing (if applicable) in
accordance with Section 2.2(a), the Notice of Term Loan Borrowing in
accordance with Section 3.2 and the Notice of Account Designation.
(ii) Proceedings and Documents. All opinions, certificates and
other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to the Administrative Agent and the
Lenders. The Administrative Agent and the Lenders shall have received
copies of all other material instruments and other evidence as the
Administrative Agent and the Lenders may reasonably request, in form and
substance reasonably satisfactory to the Administrative Agent and the
Lenders, with respect to the transactions contemplated by this
Agreement.
(iii) Due Diligence and Other Documents. The Borrower shall have
delivered to the Administrative Agent such other documents, certificates
and opinions as the Administrative Agent may reasonably request.
(g) Acquisition Agreement. Each party thereto shall have entered into
the Acquisition Agreement on terms satisfactory to the Administrative Agent;
there shall not have been any modification, amendment, supplement or waiver to
the Acquisition Agreement without the prior written consent of the
Administrative Agent which consent shall not be unreasonably withheld, including
any modification, amendment, supplement or waiver relating to the amount or type
of consideration to be paid in connection with the transaction contemplated by
the Acquisition Agreement or the contents of any disclosure schedules and
exhibits; the conditions set forth in the Acquisition Agreement shall have been
satisfied (without any waiver or amendment thereof to which the Administrative
Agent has not consented); the representations and warranties set forth in the
Acquisition Agreement shall be true and correct as of the Effective Date; the
transactions contemplated by the Acquisition Agreement (including, without
limitation, the assignment, as consented to by the parties to the Acquisition
Agreement, of all purchase rights thereunder by Northland Cable Television, Inc.
to the Borrower) shall be consummated simultaneously with the initial borrowing
under this Agreement; and the Administrative Agent shall have received a true,
correct and complete final Acquisition Agreement, together with all exhibits and
schedules thereto, as certified by an officer of the Managing General Partner on
behalf of the Borrower.
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SECTION 5.3. Conditions to All Loans. The obligations of the Lenders to
make any Loan is subject to the satisfaction of the following conditions
precedent on the relevant borrowing date, as applicable:
(a) Continuation of Representations and Warranties. The representations
and warranties made by the Borrower contained in Article VI shall be true and
correct on and as of such borrowing or issuance date with the same effect as if
made on and as of such date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing hereunder on the borrowing date with respect to such
Loan or after giving effect to the Loans to be made on such date.
(c) Additional Documents. The Administrative Agent shall have received
each additional document, endorsement, instrument, legal opinion or item of
information reasonably requested by it.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BORROWER
SECTION 6.1. Representations and Warranties. To induce the
Administrative Agent and each Lender to enter into this Agreement and to make
the Loans, the Borrower hereby represents and warrants to the Administrative
Agent and the Lenders that:
(a) Organization; Power; Qualification. The Borrower and its
Subsidiaries are duly organized, validly existing and in good standing under the
laws of the jurisdiction of their incorporation or formation, have the power and
authority to own their respective properties and to carry on its respective
businesses as now being and hereafter proposed to be conducted and are duly
qualified and authorized to do business in each jurisdiction in which the
character of their respective properties or the nature of their respective
businesses requires such qualification and authorization. The jurisdictions in
which the Borrower and its Subsidiaries are organized and qualified to do
business are described on Schedule 6.1 (a).
(b) Ownership. Each Subsidiary of the Borrower is listed on Schedule
6.1(b). The capitalization of the Borrower consists of the number of partnership
interests, authorized, issued and outstanding, of such classes and series as
described on Schedule 6.1(b). All outstanding partnership interests have been
duly authorized and validly issued and are fully paid and nonassessable. The
partners of the Borrower and the equity owners of its Subsidiaries and the
number of partnership or other equity interests owned by each are described on
Schedule 6.1(b). There are no outstanding warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever, which
are convertible into, exchangeable for or otherwise provide for or permit the
issuance of partnership or other equity interest in the Borrower or its
Subsidiaries, except as described on Schedule 6.1(b).
(c) Authorization of Agreement, Notes, Loan Documents and Borrowing.
Each of the Borrower and its Subsidiaries have the right, power and authority
and have taken all necessary partnership, corporate and other action to
authorize the execution, delivery and
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performance of this Agreement, the Notes and each of the other Loan Documents to
which it is a party in accordance with their respective terms and the Managing
General Partner has the right, power and authority and has taken all necessary
action to authorize on behalf of the Borrower the execution, delivery and
performance of the Loan Documents to which the Borrower is a party. This
Agreement, the Notes, and each of the other Loan Documents have been duly
executed and delivered by the duly authorized officers of the Borrower (or the
duly authorized officers of the Managing General Partner on behalf of the
Borrower) and each of its Subsidiaries party thereto, and each such document
constitutes the legal, valid and binding obligation of the applicable Borrower
and/or Subsidiary party thereto, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal debtor relief laws from
time to time in effect which affect the enforcement of creditors' rights in
general and the availability of equitable remedies.
(d) Compliance of Agreement, Notes, Loan Documents and Borrowing with
Laws, Etc. The execution, delivery and performance by each of the Borrower and
its Subsidiaries of the Loan Documents to which it is a party, the borrowings
hereunder and the transactions contemplated hereby and thereby do not and will
not, by the passage of time, the giving of notice or otherwise, (i) except as
set forth on Schedule 6.1(d) hereto, require any Governmental Approval or
violate any Applicable Law relating to the Borrower or any of its Subsidiaries;
(ii) conflict with, result in a breach of or constitute a default under, as
applicable, the articles of incorporation, bylaws, partnership agreement or
other organizational documents of the Borrower or any of its Subsidiaries or,
except as set forth on Schedule 6.1(d) any Material Contract to which the
Borrower is a party or by which any of their respective properties may be bound
or any Governmental Approval relating to the Borrower or any of its
Subsidiaries; or (iii) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or hereafter acquired by the
Borrower or any of its Subsidiaries other than Liens arising under the Loan
Documents.
(e) Compliance with Law; Governmental Approvals. The Borrower and its
Subsidiaries (i) have all material Governmental Approvals required by any
Applicable Law for them to conduct their respective businesses, each of which is
in full force and effect, is final and not subject to review on appeal and is
not the subject of any pending or, to the best of the Borrower's knowledge
threatened attack by direct or collateral proceeding; and (ii) is in material
compliance with each Governmental Approval applicable to it and in material
compliance with all other Applicable Laws relating to it or any of its
respective properties.
(f) Tax Returns and Payments. The Borrower and its Subsidiaries have
duly filed or caused to be filed all federal, state, local and other tax returns
required by Applicable Law to be filed, and have paid, or made adequate
provision for the payment of, all federal, state, local and other taxes,
assessments and governmental charges or levies upon it and its respective
property, income, profits and assets which are due and payable. No Governmental
Authority has asserted any Lien or other claim against the Borrower or any of
its Subsidiaries with respect to material unpaid taxes which has not been
discharged or resolved or is not being contested in good faith. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of federal, state, local and other taxes for all Fiscal Years and
portions thereof since the organization of the Borrower and its Subsidiaries are
in the judgment of the Borrower adequate,
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and the Borrower does not anticipate any additional material taxes or
assessments for any of such years.
(g) Copyright Matters. The Borrower and its Subsidiaries have recorded
or deposited with and paid to the United States Copyright Office, and the
Register of Copyrights all notices, statements of account, royalty fees and
other documents and instruments required under the United States Copyright Act,
and neither the Borrower nor any Subsidiary thereof is liable to any Person for
copyright infringement under the United States Copyright Act as a result of its
business operations. To the best of the Borrower's knowledge, neither the
Borrower nor any Subsidiary thereof has been threatened with litigation with
respect to any such rights.
(h) Franchises, Licenses, Patents and Trademarks. The Borrower and its
Subsidiaries own or possess rights to use all material franchises (including,
without limitation, all CATV Franchises), licenses, patents, patent rights or
licenses, patent applications, trademarks, trademark rights, trade names, trade
name rights, copyrights and rights with respect to the foregoing which are
required to conduct its business. No event has occurred which permits, or after
notice or lapse of time or both would permit, the revocation or termination of
any such rights (excluding expiration in accordance with the terms thereof). To
the Borrower's best knowledge, neither the Borrower nor any Subsidiary thereof
has been threatened with litigation with respect to any such rights.
(i) Environmental Matters.
(i) To the Borrower's best knowledge, the properties of the
Borrower and its Subsidiaries do not contain, and have not previously
contained, any Hazardous Materials in amounts or concentrations which
(A) constitute or constituted a violation of, or (B) could give rise to
liability under, applicable Environmental Laws;
(ii) Such properties and all operations conducted in connection
therewith are in material compliance, and have been in material
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or on such properties or such operations in
violations of applicable Environmental laws or which could interfere
with the continued operation of such properties or impair the fair
saleable value thereof;
(iii) Neither the Borrower nor any Subsidiary thereof has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of their
properties or the operations conducted in connection therewith, nor does
the Borrower or any Subsidiary thereof have knowledge or reason to
believe that any such notice will be received or is being threatened;
(iv) Hazardous Materials have not been transported or disposed of
from the properties of the Borrower and its Subsidiaries in violation
of, or in a manner or to a location which could give rise to liability
under, Environmental Laws, nor have any Hazardous Materials been
generated, treated, stored or disposed of at, on or under any of
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such properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Laws;
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which either the Borrower or any
Subsidiary thereof is or will be named as a party with respect to such
properties or operations conducted in connection therewith, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to such properties or such operations; and
(vi) There has been no release, or to the best of the Borrower's
knowledge, the threat of release, of Hazardous Materials at or from such
properties, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws.
(j) ERISA.
(i) Neither the Borrower nor any ERISA Affiliate maintain or
contribute to, or have any obligation under, any Employee Benefit Plans
other than those identified on Schedule 6.1(j). If requested by the
Administrative Agent, the Borrower shall provide the Administrative
Agent accurate and complete copies of all contracts, agreements and
documents described on Schedule 6.1(j);
(ii) The Borrower and each ERISA Affiliate are in compliance with
all applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans
except for any required amendments for which the remedial amendment
period as defined in Section 401(b) of the Code has not yet expired.
Each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined by the Internal Revenue
Service to be so qualified, and each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code. No liability
has been incurred by the Borrower or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code)
been incurred (without regard to any waiver granted under Section 412 of
the Code), nor has any funding waiver from the Internal Revenue Service
been received or requested with respect to any Pension Plan, nor have
the Borrower or any ERISA Affiliate failed to make any contributions or
to pay any amounts due and owing as required by Section 412 of the Code,
Section 302 of ERISA or the terms of any Pension Plan prior to the due
dates of such contributions under Section 412 of the Code or Section 302
of ERISA, nor has there been any event requiring any disclosure under
Section 4041 (c)(3)(C) or 4063(a) of ERISA with respect to any Pension
Plan;
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(iv) Neither the Borrower nor any ERISA Affiliate has: (A)
engaged in a nonexempt prohibited transaction described in Section 406
of the ERISA or Section 4975 of the Code; (B) incurred any liability to
the PBGC which remains outstanding other than the payment of premiums
and there are no premium payments which are due and unpaid; (C) failed
to make a required contribution or payment to a Multiemployer Plan; or
(D) failed to make a required installment or other required payment
under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected
to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is
existing or, to the best knowledge of the Borrower after due inquiry,
threatened concerning or involving any (A) employee welfare benefit plan
(as defined in Section 3(l) of ERISA) currently maintained or
contributed to by the Borrower or any ERISA Affiliate, (B) Pension Plan
or (C) Multiemployer Plan.
(k) Margin Stock. Neither the Borrower nor any Subsidiary thereof is
engaged principally or as one of its respective activities in the business of
extending credit for the purpose of " purchasing" or "carrying" any "margin
stock" (as each such term is defined or used in Regulations G and U of the Board
of Governors of the Federal Reserve System). No part of the proceeds of any of
the Loans will be used for purchasing or carrying margin stock or for any
purpose which violates, or which would be inconsistent with, the provisions of
Regulation G, T, U or X of such Board of Governors.
(l) Government Regulation. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company" (as each such term is defined or used in the Investment Company Act of
1940, as amended) and neither the Borrower nor any of its Subsidiaries is, or
will be, subject to regulation under the Public Utility Holding Company Act of
1935 or the Interstate Commerce Act, each as amended, or any other Applicable
Law which materially limits its ability to incur or consummate the transactions
contemplated hereby.
(m) Material Contracts. Schedule 6.1(m) sets forth a complete and
accurate list of all Material Contracts of the Borrower and its Subsidiaries in
effect as of the Closing Date and which are not listed on any other Schedule
hereto. Except as set forth on Schedule 6.1(m), the Borrower and its
Subsidiaries party thereto have performed all of their material obligations
under such Material Contracts and, to the best knowledge of the Borrower, each
party thereto is in material compliance with each such Material Contract, and
each such Material Contract is, and after giving effect to the consummation of
the transactions contemplated by the Loan Documents will be, in full force and
effect in accordance with the terms thereof and there are no defaults by the
Borrower, any of its Subsidiaries or, to the Borrower's best knowledge, by any
other party under any such Material Contract. The Borrower and its Subsidiaries
have delivered to the Administrative Agent a true and complete copy of each
Material Contract required to be listed on Schedule 6.1(m).
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(n) Employment, Non-Compete, Investment and Shareholder Agreements. As
of the Closing Date, there are no (i) employment agreements or executive
compensation arrangements to which the Borrower is a party which provide for
aggregate compensation to any Person (assuming compliance with or satisfaction
of all contingencies or conditions) of more than $100,000 per year, (ii)
material agreements to which the Borrower or any Subsidiary is a party under
which any party thereto enters into any covenant not to compete with, or solicit
customers of, the other party or any covenant to maintain the confidentiality of
any customer or employee lists or similar intangible assets, or (iii) agreements
relating to the investment in, or the voting or disposition of, any outstanding
partnership units or other ownership interests of the Borrower.
(o) Employee Matters. The Borrower and its Subsidiaries have a stable
work force in place and are not party to any collective bargaining agreement nor
has any labor union been recognized as the representative of its respective
employees. The Borrower and its Subsidiaries know of no pending, threatened or
contemplated strikes, work stoppage or other collective labor disputes involving
its employees.
(p) Trade Relations. To the best of the Borrower's knowledge, there
exist no actual or threatened termination, cancellation or limitation of, or any
adverse modification or change in, the business relationship of the Borrower or
any Subsidiary thereof with any customer or any group of customers whose
purchases individually or in the aggregate are material to the business of the
Borrower or any Subsidiary thereof, and there exists no present condition or
state of facts or circumstances affecting any customer of the Borrower or any
Subsidiary thereof that would materially adversely affect the Borrower or any
Subsidiary thereof or prevent the Borrower or any Subsidiary thereof from
conducting their respective business after the consummation of the transactions
contemplated by the Loan Documents in substantially the same manner in which it
has heretofore been conducted.
(q) Burdensome Provisions. Neither the Borrower nor any Subsidiary
thereof is a party to any indenture, agreement, lease or other instrument, or
subject to any corporate or partnership restriction, Governmental Approval or
Applicable Law which is so unusual or burdensome as in the foreseeable future
could be reasonably expected to have a Material Adverse Effect. The Borrower and
its Subsidiaries do not presently anticipate that future expenditures needed to
meet the provisions of any statutes, orders, rules or regulations of a
Governmental Authority will be so burdensome as to have a Material Adverse
Effect.
(r) Financial Statements. The (i) Consolidated balance sheets of the
Borrower and its Subsidiaries as of December 31, 1996 and the related statements
of income and retained earnings and cash flows for the Fiscal Year then ended
and, (ii) the unaudited Consolidated balance sheets of the Borrower and its
Subsidiaries as of September 30, 1997, copies of which have been furnished to
the Administrative Agent and each Lender, are complete and correct and fairly
present the assets, liabilities and financial position, or the projections
thereof, of the Borrower and its Subsidiaries as at such dates, and the results
of the operations and changes of financial position for the periods then ended,
subject, in the case of unaudited statements, to changes resulting from normal
year-end audit adjustments and information to be included in footnotes to the
audited statements. The projected statements of income and cash flows for the
Borrower and its Subsidiaries for the Fiscal Years 1998 and 1999 previously
delivered to the Administrative Agent and Lenders are based on reasonable and
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good faith estimates and assumptions of senior management of the Managing
General Partner of the financial condition and operations of the Borrower and
its subsidiaries for such period. All of the above financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP (to the extent applicable thereto). The Borrower and its
Subsidiaries have no Debt, obligations or other unusual forward or long-term
commitment which are not fairly reflected in the foregoing financial statements
or in the notes thereto.
(s) No Material Adverse Change. Since December 31, 1996, there has been
no material adverse change in the properties, business, operations, prospects,
or condition (financial or otherwise) of either the Borrower or any of its
Subsidiaries, including, but not limited to, any material adverse change
resulting from any fire, explosion, accident, drought, storm, hail, earthquake,
embargo, act of God, or of the public enemy or other casualty (whether or not
covered by insurance).
(t) Solvency. As of the Closing Date and after giving effect to each
Loan, each of the Borrower and its Subsidiaries will be Solvent.
(u) Titles to Properties. The Borrower and its Subsidiaries have good
and marketable title to, or valid and subsisting leasehold interests in, the
real property owned or leased, as the case may be, by them and valid and legal
title to all of their personal property, including, but not limited to, the real
and personal property reflected on the financial statements delivered pursuant
to Section 6.11(r), except property which has been disposed of by the Borrower
or any of its Subsidiaries subsequent to such date which dispositions have been
in the ordinary course of business or as otherwise expressly permitted
hereunder.
(v) Liens. None of the properties and assets of the Borrower or any of
its Subsidiaries is subject to any Lien, except Liens permitted pursuant to
Section 10.3 hereof. No financing statement under the Uniform Commercial Code of
any state which names the Borrower or any of its Subsidiaries or any of their
respective trade names or divisions as debtor and which has not been terminated,
has been filed in any state or other jurisdiction and neither the Borrower nor
any of its Subsidiaries has signed any such financing statement or any security
agreement authorizing any secured party thereunder to file any such financing
statement, except to perfect those Liens permitted by Section 10.3.
(w) Debt and Contingent Obligations. Schedule 6.1(w) is a complete and
correct listing of all Debt and Contingent Obligations of the Borrower and its
Subsidiaries in excess of $250,000. The Borrower and its Subsidiaries have
performed and are in compliance with all of the terms of such Debt and
Contingent Obligations and all instruments and agreements relating thereto, and
no default or event of default, or event or condition which with notice or lapse
of time or both would constitute such a default or event of default on the part
of the Borrower or its Subsidiaries exists with respect to any such Debt or
Contingent Obligation.
(x) Litigation. Except as set forth on Schedule 6.1(x), there are no
actions, suits or proceedings pending nor, to the knowledge of the Borrower,
threatened against or in any other way relating adversely to or affecting the
Borrower, any of its Subsidiaries or any of its respective properties in any
court or before any arbitrator of any kind or before or by any Governmental
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Authority. There are no outstanding or unpaid final judgments against the
Borrower or any of its Subsidiaries.
(y) Communications Law Matters.
(i) Schedule 6.1(y) hereto sets forth, as of the date hereof, a
true and complete list of (A) the following information for each FCC
License issued to the Borrower or any of its Subsidiaries: all FCC
Licenses, the name of the licensee, the type of service and the
expiration dates and (B) the following information for all CATV
Franchises issued to the Borrower or any of its Subsidiaries: all CATV
Franchises, the issuing Governmental Authority, the CATV System, name,
the territory covered thereby and the expiration date.
(ii) Neither the Borrower nor any of its Subsidiaries is in
material violation of any duty or obligation required by the
Communications Act of 1934, as amended, or any FCC rule or regulation
applicable to the operation of any portion of any of the CATV Systems.
(iii) Except as set forth on Schedule 6.1(d), the Borrower and
its Subsidiaries possess all Governmental Approvals and Pole Agreements
necessary to own, operate and construct the CATV Systems or otherwise
for the operations of their businesses and are not in violation thereof.
All such Governmental Approvals and Pole Agreements are in full force
and effect and no event has occurred that permits, or after notice or
lapse of time could permit, the revocation, termination or material and
adverse modification of any such Governmental Approval or Pole Agreement
other than matters affecting the cable industry generally as a whole.
(iv) There is not pending or, to the best knowledge of the
Borrower, threatened, any action by the FCC to modify adversely, revoke,
cancel, suspend or refuse to renew any FCC License held by the Borrower
or any of its Subsidiaries. There is not pending or, to the best
knowledge of the Borrower, threatened, any action by any Governmental
Authority to modify adversely, revoke, cancel, suspend or refuse to
renew any other Governmental Approval or Pole Agreement other than
matters affecting the cable industry generally as a whole.
(v) Except as set forth on Schedule 6.1(x), there is not issued
or outstanding or, to the best knowledge of the Borrower, threatened,
any notice of any hearing, violation or complaint against the Borrower
or any of its Subsidiaries with respect to the operation of any portion
of the CATV Systems and the Borrower has no knowledge that any Person
intends to contest renewal of any Governmental Approval or Pole
Agreement.
(z) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by the Borrower or any of its Subsidiaries under any
Material Contract or judgment, decree or order to which either the Borrower or
any of its Subsidiaries is a party or by which either the Borrower, any of its
Subsidiaries or any of
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their respective properties may be bound or which would
require either the Borrower or any of its Subsidiaries to make any payment
thereunder prior to the scheduled maturity date therefor.
(aa) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of the Borrower or
any of its Subsidiaries and furnished to the Lenders were, at the time the same
were so furnished, complete and correct in all material respects (except to the
extent projections were prepared on the basis of good faith and reasonable
estimates and assumptions in accordance with Section 6.1(r)) to the extent
necessary to give the recipient a fair and reasonable understanding of the
subject matter. No document furnished or written statement made to the
Administrative Agent or the Lenders by either the Borrower or any of its
Subsidiaries in connection with the negotiation, preparation or execution of
this Agreement or any of the Loan Documents contains or will contain any untrue
statement of a fact material to the creditworthiness of the Borrower or any of
its Subsidiaries or omits or will omit to state a material fact necessary in
order to make the statements contained therein not misleading. Neither the
Borrower nor any Subsidiary thereof is aware of any facts which it has not
disclosed in writing to the Administrative Agents having a Material Adverse
Effect, or insofar as the Borrower can now foresee, could reasonably be expected
to have a Material Adverse Effect.
SECTION 6.2. Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including, but not limited to, any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made as of the Closing Date
and shall survive the Closing Date in accordance with Section 5.3 (a).
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full, in cash,
and the Commitment terminated, unless consent has been obtained in the manner
set forth in Section 13.11 hereof, the Borrower will furnish or cause to be
furnished to the Administrative Agent at the Administrative Agent's Office (with
copies for each Lender), or such other office as may be designated by the
Administrative Agent from time to time:
SECTION 7.1. Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and, in any
event, within forty-five (45) days after the end of each fiscal quarter of any
Fiscal Year, an unaudited Consolidated balance sheet of the Borrower and its
Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated
statements of income, retained earnings and cash flows for the fiscal quarter
then ended and that portion of the Fiscal Year then ended, all in reasonable
detail setting forth in comparative form the corresponding figures for the
preceding Fiscal Year and prepared by the Borrower in accordance with GAAP (to
the extent applicable) and, if applicable, containing disclosure of the effect
on the financial position or results of operations of any change in the
application of accounting principles and practices during the period, and
certified by the chief
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<PAGE> 50
financial officer of the Borrower (or other officer reasonably acceptable to the
Administrative Agent) to present fairly in all material respects the financial
condition of the Borrower and its Subsidiaries as of their respective dates and
the results of operations of the Borrower and its Subsidiaries for the
respective periods then ended, subject to normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable and, in any
event, within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of the Borrower and its Subsidiaries as of the close
of such Fiscal Year and audited Consolidated statements of income, retained
earnings and cash flows for the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by an
independent certified public accounting firm acceptable to the Administrative
Agent in accordance with GAAP and, if applicable, containing disclosure of the
effect on the financial position or results of operation of any change in the
application of accounting principles and practices during the year, and
accompanied by a report thereon by such certified public accountants that is not
qualified with respect to scope limitations imposed by the Borrower or any of
its Subsidiaries or with respect to accounting principles followed by the
Borrower or any of its Subsidiaries not in accordance with GAAP.
(c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event within thirty (30) days after the close of each
Fiscal Year, a business plan of the Borrower and its Subsidiaries for the
ensuing four (4) fiscal quarters, such plan to be prepared in accordance with
GAAP (to the extent applicable) and to include, on a quarterly basis, the
following: a quarterly operating and capital budget, a projected income
statement, a statement of the projected sources and uses of cash and projected
Debt balances, and calculations evidencing compliance with Article IX for such
period, accompanied by a certificate from the chief financial officer of the
Managing General Partner of the Borrower (or other officer reasonably acceptable
to the Administrative Agent) to the effect that, to the best of such officer's
knowledge, such projections are reasonable and good faith estimates and
assumptions of senior management of the Managing General Partner of the
financial condition and operations of the Borrower and its Subsidiaries for such
four (4) quarter period.
SECTION 7.2. Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 7.1(a) and (b) and at such other
times as the Administrative Agent shall reasonably request, a certificate of the
chief executive officer or chief financial officer of the Managing General
Partner on behalf of the Borrower (or other officer reasonably acceptable to the
Administrative Agent) in the form of Exhibit E attached hereto (an "Officer's
Compliance Certificate").
SECTION 7.3. Accountants' Certificate. At each time financial statements
are delivered pursuant to Section 7.1(b), a certificate of the independent
public accountants certifying such financial statements addressed to the
Administrative Agent for the benefit of the Lenders:
(a) stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of any
Default or Event of Default or, if such is not the case, specifying such Default
or Event of Default and its nature and period of existence; and
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<PAGE> 51
(b) including the calculations reviewed by such accountants required to
establish whether or not the Borrower and its Subsidiaries are in compliance
with the financial covenants set forth in Article IX hereof as at the end of
each respective period.
SECTION 7.4. Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or the Managing General Partner or its Board of
Directors by its independent public accountants in connection with their
auditing function, including, without limitation, any management report and any
management responses thereto;
(b) As soon as available and in any event within forty-five (45) days
after the end of each Fiscal Year of the Borrower, an updated Schedule 6.l(y)
accompanied by a report identifying any FCC License or CATV Franchise lost,
surrendered or canceled during such period, and within ten (10) Business Days
after the receipt by the Borrower or any Subsidiary of notice that any FCC
License has been lost or canceled, copies of any such notice accompanied by a
report describing the measures undertaken by either the Borrower or any of its
Subsidiaries to prevent such loss or cancellation (and the anticipated impact,
if any, that such loss or cancellation will have upon the business of either the
Borrower or any of its Subsidiaries);
(c) Such other information regarding the operations, business affairs
and financial condition of the Borrower and its Subsidiaries as the
Administrative Agent or any Lender may reasonably request, and
(d) As soon as available following each quarter end, subscriber reports
in a form satisfactory to the Administrative Agent; and
(e) Promptly upon transmission or receipt thereof, copies of all filings
and registrations with, and reports to or from, the Securities and Exchange
Commission, or any successor agency thereto.
SECTION 7.5. Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) days after an officer of the Borrower or Managing
General Partner obtains knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceedings in which a claim is
made in an amount in excess of $500,000 in any court or before any arbitrator
against or involving the Borrower, any of its Subsidiaries or any of their
respective properties, assets or businesses including any material notice
received from the Internal Revenue Service or other taxing authority regarding
employment related taxes;
(b) any notice of any violation received by the Borrower or any of its
Subsidiaries from any Governmental Authority including, without limitation, any
notice of violation of Environmental Laws if any such violation could reasonably
be expected to cause a Material Adverse Effect;
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<PAGE> 52
(c) any labor controversy that has resulted in, or threatens to result
in, a strike or other work action against the Borrower or any of its
Subsidiaries;
(d) any attachment, judgment, lien, levy or order exceeding $500,000
that may be assessed against or threatened against the Borrower or any of its
Subsidiaries thereof,
(e) (i) any Default or Event of Default or (ii) any event which
constitutes or which with the passage of time or giving of notice or both would
constitute a default or event of default under any Material Contract to which
the either the Borrower or any of its Subsidiaries is a party or by which the
Borrower, any of its Subsidiaries or any of their respective properties may be
bound if any such event referred to in this clause (ii) could reasonably be
expected to cause a Material Adverse Effect;
(f) (i) the failure of the Borrower or any ERISA Affiliate to make a
required installment or payment under Section 302 of ERISA or Section 412 of the
Code by the due date; (ii) all notices received by the Borrower or any ERISA
Affiliate of the PBGC's intent to terminate any Pension Plan or to have a
trustee appointed to administer any Pension Plan; (iii) all notices received by
the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor concerning
the imposition or amount of withdrawal liability pursuant to Section 4202 of
ERISA; and (iv) the Borrower obtaining knowledge or reason to know that the
Borrower or any ERISA Affiliate has filed or intends to file a notice of intent
to terminate any Pension Plan under a distress termination within the meaning of
Section 4041 (c) of ERISA;
(g) any event which makes any of the representations set forth in
Section 6. 1. inaccurate in any material respect; and
(h) any proposed amendment, change or modification to, or waiver of any
provision of, or any termination of, any Material Contract which could
reasonably be expected to have a Material Adverse Effect.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full, in
cash, and the Commitments terminated, unless consent has been obtained in the
manner provided for in Section 13.11, the Borrower will, and will cause each of
its respective Subsidiaries to:
SECTION 8.1. Preservation of Existence and Related Matters. Except as
permitted by Section 10.5 , preserve and maintain its separate partnership or
corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business including without limitation all FCC
Licenses and filing all applicable notices under 47 U.S.C. 546 in order to
preserve and maintain its CATV Franchises and renewal rights with respect
thereto, and qualify and remain qualified as a foreign corporation and
authorized to do business in each jurisdiction in which the failure to so
qualify would have a Material Adverse Effect.
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SECTION 8.2. Maintenance of Property. In addition to the requirements of
any of the Security Documents, protect and preserve all properties useful in and
material to its business, including copyrights, patents, trade names and
trademarks; maintain in reasonably good working order and condition all
buildings, equipment and other tangible real and personal property; and from
time to time make or cause to be made all renewals, replacements and additions
to such property reasonably necessary for the conduct of its business, so that
the business carried on in connection therewith may be reasonably properly and
advantageously conducted at all times.
SECTION 8.3. Insurance. Maintain insurance with responsible insurance
companies against such risks and in such amounts as are customarily maintained
by similar businesses and as may be required by Applicable Law. In addition, (a)
cause the Administrative Agent, for the ratable benefit of itself and the
Lenders, to be named as loss payee on each such insurance policy (of the
Borrower and any Subsidiary party to a Security Agreement) covering risks
relating to any of its Inventory, Fixtures and Equipment (each as defined in
applicable Security Agreement) and (b) require each such insurance policy to
provide that no cancellation or termination thereof shall be effective until at
least thirty (30) days have elapsed after receipt by the Administrative Agent of
written notice thereof. Upon the reasonable request of the Administrative Agent
from time to time, deliver to the Administrative Agent (i) a detailed list of
the insurance then in effect, stating the names of the insurance companies, the
amounts of the insurance, the dates of the expiration thereof and the risks
covered thereby and (ii) a certified copy (certified by the Borrower) of the
policies of insurance.
SECTION 8.4. Accounting Methods and Financial Records. Maintain a system
of accounting, and keep such books, records and accounts (which shall be true
and complete in all material respects) as may be required or as may be
reasonably necessary to permit the preparation of financial statements in
compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties and, subject to Section 13.9, in
accordance with GAAP.
SECTION 8.5. Payment and Performance of Obligations. Pay and perform all
Obligations under this Agreement and the other Loan Documents and pay or perform
(a) all taxes, assessments and other governmental charges that may be levied or
assessed upon it or any of its property (including, without limitation,
withholding, social security, payroll and similar employment related taxes on
the dates such taxes are due), and (b) all other indebtedness, obligations and
liabilities in accordance with customary trade practices; provided, that the
Borrower may contest any item described in clauses (a) and (b) hereof in good
faith so long as adequate reserves are maintained with respect thereto in
accordance with GAAP.
SECTION 8.6. Compliance With Laws and Approvals. Observe and remain in
compliance with all Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable or necessary to the conduct of
its business, except to the extent failure to do so could not reasonably be
expected to have a Material Adverse Effect.
SECTION 8.7. Environmental Laws. In addition to and without limiting the
generality of Section 8.6, (a) comply with, and ensure such compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply with and maintain, and
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<PAGE> 54
ensure that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws; (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply with all lawful orders
and directives of any Governmental Authority regarding Environmental Laws; and
(c) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under any
Environmental Laws applicable to the operations of the Borrower or any
Subsidiary, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the party seeking
indemnification therefor.
SECTION 8.8. Compliance with ERISA. In addition to and without limiting
the generality of Section 8.6, (a)make timely payment of contributions required
to meet the minimum funding standards set forth in ERISA with respect to any
Employee Benefit Plan; (b) not take any action or fail to take action the result
of which could be a liability to the PBGC or to a Multiemployer Plan; (c) not
participate in any prohibited transaction that could result in any civil penalty
under ERISA or tax under the Code; (d) furnish to the Administrative Agent upon
the Administrative Agent's request such additional information about any
Employee Benefit Plan as may be reasonably requested by the Administrative
Agent; and (e) operate each Employee Benefit Plan in such a manner that will not
incur any tax liability under Section 4980B of the Code or any liability to any
qualified beneficiary as defined in Section 4980B of the Code.
SECTION 8.9. Compliance With Agreements. Comply in all respects with
each material term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business including, without
limitation, any Material Contract; provided, that the Borrower or any Subsidiary
may contest any such lease, agreement or other instrument in good faith through
applicable proceedings so long as adequate reserves are maintained in accordance
with GAAP.
SECTION 8.10. Conduct of Business. Engage only in the ownership and
operation of cable television service and related advertising and marketing
activities and such business as may thereafter evolve in the fields of cable
television systems, enhanced video services and advanced telecommunications
services, such as internet access, network data services and telephony and as
would not have a Material Adverse Effect on the Borrower.
SECTION 8.11. Visits and Inspections. Permit representatives of the
Administrative Agent or any of the Lenders, from time to time, to visit and
inspect its properties following notice to the Borrower and during normal
business hours; inspect, audit and make extracts from its books, records and
files, including, but not limited to, management letters prepared by independent
accountants (subject only to applicable privacy requirements of Federal law);
and
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discuss with its principal officers, and its independent accountants, its
business, assets, liabilities, financial condition, results of operations and
business prospects.
SECTION 8.12. Interest Rate Protection. Within ninety (90) days of the
Closing Date enter into and maintain for a minimum of two (2) years thereafter a
Hedging Agreement reasonably satisfactory to the Administrative Agent with
respect to increases in interest rates for a minimum notional amount equal to
50% of all Loans outstanding from time to time.
SECTION 8.13. Additional Collateral.
(a) Promptly at the request of the Required Lenders, assign to the
Administrative Agent for the benefit of itself and the Lenders all of the rights
of the Borrower or Subsidiary under any lease of real property and/or grant to
the Administrative Agent for the benefit of itself and the Lenders a security
interest in any such leasehold interest or real property owned by the Borrower
or any Subsidiary pursuant to documentation reasonably satisfactory to the
Administrative Agent and Required Lenders, and shall take all actions reasonably
requested by the Administrative Agent or Required Lenders in connection with
consummating such assignments and the granting of such security interests
including, without limitation, the obtaining of landlord or lessor consents,
mortgagee title insurance policies, title surveys and real estate appraisals
satisfying the requirements of all Applicable Laws and duly recording each
document related thereto in such manner and in such places as are required by
the law to perfect and preserve the Liens in favor of the Administrative Agent
granted pursuant to such documents.
(b) Concurrently with the creation of any Subsidiary, such Subsidiary
and, as applicable, the Borrower, shall enter into and deliver (i) a Subsidiary
Security Agreement (ii) a Guaranty Agreement, and (iii) Pledge Agreement with
respect to the ownership interests of such Subsidiary and execute or modify any
other applicable Security Document, each in form and substance satisfactory to
the Required Lenders, such that the ownership interests and assets of such
Subsidiary shall be subject to a perfected first priority lien in favor of the
Administrative Agent for the ratable benefit of itself and the Lenders in order
to secure the Obligations and (ii) cause to be delivered to the Administrative
Agent such other documents as the Administrative Agent or Required Lenders shall
reasonably request in connection therewith, including without limitation,
officers' certificates, financial statements, opinions of counsel, resolutions,
charter documents, certificates of existence and authority to do business and
any other closing certificates and documents described in Section 5.2.
SECTION 8.14. Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or any Lender may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in and insure the
Administrative Agent and the Lenders their respective rights under this
Agreement, the Notes and the other Loan Documents.
ARTICLE IX
FINANCIAL COVENANTS
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Until all of the Obligations have been paid and satisfied in full, in
cash, and the Commitments terminated, unless consent has been obtained in the
manner set forth in Section 13.11 hereof, the Borrower and its Subsidiaries on a
Consolidated basis will not:
SECTION 9.1. Maximum Leverage Ratio. At any time during the applicable
period set forth below, permit the ratio (the "Leverage Ratio") of (a) Total
Funded Debt as of the date of determination to (b) Annualized Operating Cash
Flow as of the most recent fiscal quarter end, to exceed the corresponding ratio
set forth below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date - 9/29/98 5.50 to 1.00
9/30/98 - 9/29/99 5.25 to 1.00
9/30/99 - 3/30/00 5.00 to 1.00
3/31/00 - 12/30/00 4.50 to 1.00
12/31/00 and thereafter 3.75 to 1.00
</TABLE>
SECTION 9.2. Interest Coverage Ratio. As of the end of each fiscal
quarter during the applicable period set forth below, permit the ratio of (a)
Operating Cash Flow for the period of four (4) consecutive fiscal quarters
ending on such fiscal quarter end to (b) Interest Expense for such period of
four (4) consecutive fiscal quarters to be less than the corresponding ratio set
forth below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date - 12/30/99 2.00 to 1.00
12/31/99-12/30/00 2.25 to 1.00
12/31/00 and thereafter 2.50 to 1.00
</TABLE>
SECTION 9.3. Fixed Charge Ratio. As of the end of each fiscal quarter on
and after the Closing Date, permit the ratio of (a) (i) Operating Cash Flow for
the period of four (4) consecutive fiscal quarters ending on such fiscal quarter
end plus (ii) the amount available to be drawn under the Revolving Credit
Facility on such date (subject to compliance with Section 9.1 and the terms and
conditions of this Agreement) to (b) Fixed Charges for such period of four (4)
consecutive fiscal quarters to be less than 1.10 to 1.00.
SECTION 9.4. Maximum Capital Expenditures. Permit Capital Expenditures
for any period set forth below to be more than the amount set forth below
opposite such period, plus, in the case of its 1999 fiscal year or any
subsequent fiscal year, the excess, if any, of the amount set forth below
opposite the immediately preceding period over the actual amount of Capital
Expenditures for such preceding period:
<TABLE>
<CAPTION>
Period Amount
- ------ ------
<S> <C>
Fiscal Year ended on or about December 31, 1998 $3,200,000
</TABLE>
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<PAGE> 57
<TABLE>
<S> <C>
Fiscal Year ended on or about December 31, 1999 $3,200,000
Fiscal year ended on or about December 31, 2000 $2,700,000
</TABLE>
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full, in
cash, and the Commitments terminated, unless consent has been obtained in the
manner set forth in Section 13.11 hereof, the Borrower will not and will not
permit any of its Subsidiaries to:
SECTION 10.1. Limitations on Debt. Create, incur, assume or suffer to
exist any Debt including, without limitation, obligations incurred pursuant to
Section 9 of the Partnership Agreement, except:
(a) the Obligations;
(b) Debt incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions reasonably satisfactory to the
Administrative Agent;
(c) existing Debt, not otherwise described in this Section 10.1, set
forth on Schedule 6.1(w) and the renewal and refinancing (but not the increase)
thereof;
(d) Debt of the Borrower and its Subsidiaries incurred in connection
with Capitalized Leases in an aggregate amount not to exceed $250,000 on any
date of determination;
(e) purchase money Debt of the Borrower and its Subsidiaries in an
aggregate amount not to exceed $250,000 on any date of determination;
(f) Debt consisting of Contingent Obligations permitted by Section 10.2;
(g) Subordinated Debt incurred in conjunction with any unpaid portion of
the purchase price of Permitted Acquisitions;
(h) Debt consisting of outstanding Management Fees; and
(i) Intercompany Debt of any Subsidiaries of the Borrower permitted
pursuant to Section 10.4.
SECTION 10.2. Limitations on Contingent Obligations. Create, incur,
assume, or suffer to exist any Contingent Obligations except:
(a) Contingent Obligations in favor of the Administrative Agent for
the benefit of the Administrative Agent and the Lenders; and
(b) Contingent Obligations existing on the Closing Date and set forth on
Schedule 6.1(w) hereto.
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SECTION 10.3. Limitations on Liens. Create, incur, assume or suffer to
exist any Lien on or with respect to any of its assets or properties (including
shares of capital stock), real or personal, whether now owned or hereafter
acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired or which are
being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, materially detract from the value of such property or impair the
use thereof in the ordinary conduct of business;
(e) (i) Liens evidencing the interest of the lessor under any Capital
Lease permitted by Section 10.1(d) Liens securing purchase money Debt permitted
by Section 10.1(e); provided that the Lien attached only to the asset being
purchased and was created contemporaneously with such purchase, and the
principal amount of the Debt secured by such Lien shall at no time exceed the
purchase price of such asset.
(f) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders; and
(g) Existing liens not otherwise described in this Section 10.3 and set
forth on Schedule 6.1(v) hereto.
SECTION 10.4. Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture,
evidence of Debt or other obligation or security, substantially all or a portion
of the business or assets of any other Person or any other investment or
interest whatsoever in any other Person; or make or permit to exist, directly or
indirectly, any loans, advances or extensions of credit to, or any investment in
cash or by delivery of property in, any Person; or enter into, directly or
indirectly, any commitment or option in respect of the foregoing except:
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(a) investments in Subsidiaries existing on the Effective Date and the
other existing loans, advances and investments described on Schedule 10.4 and,
provided no Default or Event of Default is then existing, additional investments
in Subsidiaries;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within 120 days from the date of acquisition thereof, (ii) commercial
paper maturing no more than 120 days from the date of creation thereof and
currently having the highest rating obtainable from either Standard & Poor's
Corporation or Moody's Investors Service, Inc., (iii) certificates of deposit
maturing no more than 120 days from the date of creation thereof issued by
commercial banks incorporated under the laws of the United States of America,
each having combined capital, surplus and undivided profits of not less than
$500,000,000 and having a rating of "A" or better by a nationally recognized
rating agency; provided, that the aggregate amount invested in such certificates
of deposit shall not at any time exceed $5,000,000 for any one such certificate
of deposit and $10,000,000 for any one such bank, or (iv) time deposits maturing
no more than 30 days from the date of creation thereof with commercial banks or
savings banks or savings and loan associations each having membership either in
the FDIC or the deposits of which are insured by the FDIC and in amounts not
exceeding the maximum amounts of insurance thereunder;
(c) investments by the Borrower or any Subsidiary thereof in the form of
acquisitions of a business or a line of business of any other Person (whether by
the acquisition of capital stock or other ownership interests, assets or any
combination thereof) the aggregate consideration (including the InterMedia
Purchase) for which shall not exceed $35,000,000 during the term of this
Agreement; provided that (i) no Default or Event of Default exists before or
after giving effect to the Permitted Acquisition; (ii) the Borrower grants to
the Administrative Agent for the ratable benefit of the Lenders a first
perfected security interest in all property acquired pursuant to such Permitted
Acquisition consistent with the terms of the Loan Documents; and (iii) the
Borrower delivers to the Administrative Agent financial statements, pro forma
projections, copies of all required Governmental Approvals and such additional
information and documentation related to a Permitted Acquisition as the
Administrative Agent or any Lender may request, such information to reflect
compliance with the terms and conditions of this Agreement after giving effect
to the Permitted Acquisition; and
(d) intercompany loans or advances by the Borrower to any Subsidiary of
the Borrower; provided, however, that the aggregate principal amount of such
loans outstanding at any time shall not exceed $ 500,000.
SECTION 10.5. Limitations on Mergers and Liquidation. Merge, consolidate
or enter into any similar combination with any other Person or liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution), except:
(a) any Wholly-Owned Subsidiary of the Borrower may merge with any
other Wholly-Owned Subsidiary of the Borrower; and
(b) any Wholly-Owned Subsidiary may merge into another Person in
connection with an acquisition permitted by Section 10.4(c).
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SECTION 10.6. Limitations on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired, except:
(a) the sale of assets no longer used or usable in the business of
the Borrower or any of its Subsidiaries;
(b) the sale or discount without recourse of accounts receivable arising
in the ordinary course of business in connection with the compromise or
collection thereof;
(c) the disposition of assets solely to the extent required to comply
with any rule or regulation of the FCC and applicable as the result of any
Permitted Acquisition; and
(d) sales of assets in the ordinary course of business the fair market
value of which assets shall not exceed $500,000 during the term of this
Agreement.
SECTION 10.7. Limitations on Distributions; Organizational Structure.
Declare or pay any dividends upon any of its partnership or other ownership
interests; purchase, redeem, retire or otherwise acquire, directly or
indirectly, any shares of its partnership or other ownership interests; make any
distribution of cash, property or assets to or among the holders of shares of
its partnership or other ownership interests; or amend the Partnership Agreement
or make any material change in its capital or organizational structure without
the prior written consent of the Required Lenders; provided that:
(a) the Borrower or any Subsidiary thereof may pay dividends in
shares of its own partnership or other ownership interests;
(b) any Subsidiary may pay cash dividends to the Borrower;
(c) distributions in the form of reimbursements for expenses actually
incurred in the normal course of business by the General Partners or their
Affiliates pursuant to Section 12(d) of the Partnership Agreement which expenses
were incurred in compliance with Section 10.9(b) of this Agreement; and
(d) distributions to the Managing General Partner of Management Fees
permitted by Section 10.12.
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SECTION 10.8. Limitations on Exchange and Issuance of Equity. Issue,
sell or otherwise dispose of any class or series of partnership or other
ownership interests that, by its terms or by the terms of any security into
which it is convertible or exchangeable, is, or upon the happening of an event
or passage of time would be, (a) convertible or exchangeable into Debt or (b)
required to be redeemed or repurchased, including at the option of the holder,
in whole or in part, or has, or upon the happening of an event or passage of
time would have, a redemption or similar payment due.
SECTION 10.9. Transactions with Affiliates. Directly or indirectly: (a)
make any loan or advance to, or purchase or assume any note or other obligation
to or from, any of its officers, directors, shareholders or other Affiliates, or
to or from any member of the immediate family of any of its officers, directors,
or other Affiliates, or subcontract any operations to any of its Affiliates, or
(b) enter into, or be a party to, any transaction with any of its Affiliates,
except pursuant to the reasonable requirements of its business and upon fair and
reasonable terms that are fully disclosed to the Required Lenders and are no
less favorable to it taken as a whole than it would obtain in a comparable
form's length transaction with a Person not its Affiliate.
SECTION 10.10. Certain Accounting Changes. Change its Fiscal Year end,
or make any material change in its accounting treatment and reporting practices
except as required by GAAP.
SECTION 10.11. Restrictive Agreements. Enter into any Debt which
contains any negative pledge on assets or any covenants more restrictive than
the provisions of Articles VIII, IX and X hereof, or which restricts, limits or
otherwise encumbers its ability to incur Liens on or with respect to any of its
assets or properties other than the assets or properties securing such Debt.
SECTION 10.12. Management Fees. Accrue and/or pay Management Fees in an
aggregate amount during any Fiscal Year in excess of six percent (6%) of "annual
gross revenue" (as defined in the Borrower Management Agreement) in such Fiscal
Year, or accrue and/or pay any Management Fees if (i) a Default or Event of
Default then exists or (ii) as a result of the payment or accrual of any such
Management Fees a Default or Event of Default exists on a pro forma basis.
SECTION 10.13. Amendments; Payments and Prepayments of Subordinated
Debt. Amend or modify (or permit the modification or amendment of) any of the
terms or provisions of any Subordinated Debt, or cancel or forgive, make any
voluntary or optional payment or prepayment on, or, except as expressly
permitted by the terms of the applicable Subordination Agreement, redeem or
acquire for value (including without limitation by way of depositing with any
trustee with respect thereto money or securities before due for the purpose of
paying when due) any Subordinated Debt.
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SECTION 10.14. Other Amendments. The Borrower shall not enter into any
amendment to the Management Agreement which alters in the reasonable opinion of
the Administrative Agent any material term thereof without the prior approval of
the Administrative Agent.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1. Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans. The Borrower shall default
in any payment of principal of any Loan or Note when and as due (whether at
maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. The Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan or Note or the payment of any other Obligations, and such
default shall continue unremedied for five (5) Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by the Borrower or any of its Subsidiaries under this Agreement, any
Loan Document or any amendment hereto or thereto, shall at any time prove to
have been incorrect or misleading in any material respect when made or deemed
made.
(d) Default in Performance of Certain Covenants. The Borrower shall
default in the performance or observance of any covenant or agreement contained
in Section 7.5(e) and Articles IX and X of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. The
Borrower or any of its Subsidiaries shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section
11.1) or any other Loan Document and such default shall continue for a period of
fifteen (15) days after the earlier of (i) an officer of the Borrower becoming
aware of such default or (ii) written notice thereof has been given to the
Borrower by the Administrative Agent.
(f) Hedging Agreement. Any termination payment shall be due by the
Borrower under any Hedging Agreement and such amount is not paid within five (5)
Business Days of the due date thereof.
(g) Cross-Default. The Borrower or any of its Subsidiaries shall (i)
default in the payment of any Debt (other than the Notes) or Contingent
Obligation, the aggregate outstanding principal amount of which is in excess of
$500,000 beyond the period of grace if any, provided in the instrument or
agreement under which such Debt or Contingent Obligation was created; or (ii)
default in the observance or performance of any other agreement or condition
relating to any Debt
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(other than the Notes) or Contingent Obligations, the aggregate outstanding
principal amount of which is in excess of $500,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such Debtor the
beneficiary or beneficiaries of such Contingent Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, any such Debt to become due prior
to its stated maturity or such Contingent Obligation to become payable (any
applicable grace period having expired).
(h) Other Cross-Defaults. (i) The Borrower or any of its Subsidiaries
shall default in the payment when due, or in the performance or observance, of
any obligation or condition of any Material Contract, unless, but only as long
as, the existence of any such default is being contested by the Borrower in good
faith by appropriate proceedings and adequate reserves in respect thereof have
been established on the books of the Borrower to the extent required by GAAP or
(ii) a General Partner shall breach any provision of the Partnership Agreement
which could reasonably be expected to have a Material Adverse Effect.
(i) Change in Control. (i) Any person or group of persons (within the
meaning of the Securities Exchange Act of 1934, as amended) shall obtain
ownership or control in one or more series of transactions of more than 30% of
the limited partnership interests of the Borrower, (ii) Northland Communications
Corporation shall cease to be the sole Managing General Partner or Northland
Telecommunications Corporation shall cease to own one hundred percent (100%) of
the outstanding capital stock of the Managing General Partner, (iii) there shall
have occurred under any indenture or other instrument evidencing any Debt in
excess of $250,000 any "change in control" (as defined in such indenture or
other evidence of Debt) obligating the Borrower to repurchase, redeem or repay
all or any part of the Debt or capital stock provided for therein, (iv) the
Borrower shall cease to own beneficially one hundred percent (100%) of all of
the outstanding ownership interest of any of the Borrower's Subsidiaries, or (v)
the Managing General Partner or the Administrative General Partner shall
liquidate or dissolve or enter into any transaction for the purpose of winding
up its business affairs.
(j) Voluntary Bankruptcy Proceeding. Either the Borrower or any of its
Subsidiaries shall (i) commence a voluntary case under the federal bankruptcy
laws (as now or hereafter in effect); (ii) file a petition seeking to take
advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts;
(iii) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy laws or
other laws; (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign; (v) admit in writing its inability to pay
its debts as they become due; (vi) make a general assignment for the benefit of
creditors; or (vii) take any corporate or partnership action for the purpose of
authorizing any of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against either the Borrower or any of its Subsidiaries in any court
of competent jurisdiction seeking (i) relief under the federal bankruptcy laws
(as now or hereafter in effect) or
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under any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or adjustment of debts; or (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like for either the Borrower or
any of its Subsidiaries or for all or any substantial part of its assets,
domestic or foreign, and such case or proceeding shall continue undismissed or
unstayed for a period of sixty (60) consecutive calendar days, or an order
granting the relief requested in such case or proceeding (including, but not
limited to, an order for relief under such federal bankruptcy laws) shall be
entered.
(1) Failure of Agreements. Any material provision (as reasonably
determined by the Required Lenders) of this Agreement or of any other Loan
Document shall for any reason cease to be valid and binding on either of the
Borrower or any of its Subsidiaries or any such Person shall so state in
writing, or this Agreement or any other Loan Document shall for any reason cease
to create a valid and perfected first priority Lien on, or security interest in,
any material portion of the Collateral purported to be covered thereby, in each
case other than in accordance with the express terms thereof.
(m) Termination Event. The occurrence of any of the following events:
(i) the Borrower or any ERISA Affiliate fails to make full payment when due of
all amounts which, under the provisions of any Pension Plan or Section 412 of
the Code, the Borrower or any ERISA Affiliate is required to pay as
contributions thereto; (ii) an accumulated funding deficiency in excess of
$250,000 occurs or exists, whether or not waived, with respect to any Pension
Plan; (iii) a Termination Event; or (iv) the Borrower or any ERISA Affiliate as
employers under one or more Multiemployer Plan makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$250,000.
(n) Judgment. A judgment or order for the payment of money which exceeds
$500,000 in amount shall be entered against either of the Borrower or any of its
Subsidiaries by any court and such judgment or order shall continue undischarged
or unstayed for a period of fifteen (15) days.
(o) Loss of Governmental Approval. Any FCC License, CATV Franchise,
other Governmental Approval or Pole Agreement of either the Borrower or any of
its Subsidiaries shall expire, terminate, be canceled or otherwise lost or any
application therefor be rejected, any of which could reasonably be expected to
have a Material Adverse Effect.
SECTION 11.2. Remedies. Upon the occurrence of an Event of Default, with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Loans and the Notes at the time outstanding, and all other
amounts owed to the Lenders and to the Administrative Agent under this Agreement
or any of the other Loan Documents and all other Obligations, to be forthwith
due and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or the other Loan Documents to
the contrary
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notwithstanding, and terminate the Revolving Credit Commitment and any right of
the Borrower to request borrowings thereunder; provided, that upon the
occurrence of an Event of Default specified in Section 11.1(j) or (k), the
Revolving Credit Commitment shall be automatically terminated and all
Obligations shall automatically become due and payable.
(b) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 11.3. Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
SECTION 11.4. Consents. The Borrower acknowledges that certain
transactions contemplated by this Agreement and the other Loan Documents and
certain actions which may be taken by the Administrative Agent or the Lenders in
the exercise of their respective rights under this Agreement and the other Loan
Documents may require the consent of the FCC or another Governmental Authority.
If counsel to the Borrower or Administrative Agent reasonably determines that
the consent of the FCC or another Governmental Authority is required in
connection with the execution, delivery and performance of any of the aforesaid
documents or any documents delivered to the Administrative Agent or the Lenders
in connection therewith or as a result of any action which may be taken pursuant
thereto, then the Borrower, at its sole cost and expense, agrees to use its
reasonable best efforts to secure such consent and to cooperate with the
Administrative Agent and the Lenders in any action commenced by the
Administrative Agent or Lender to secure such consent.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1. Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as the Administrative Agent of such Lender
under this Agreement and the other Loan Documents and each such Lender
irrevocably authorizes First Union as Administrative Agent for such Lender, to
take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and
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such other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or such other Loan Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or the other Loan Documents or otherwise exist
against the Administrative Agent.
SECTION 12.2. Delegation of Duties. The Administrative Agent may execute
any of its respective duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by the Administrative Agent with reasonable care.
SECTION 12.3. Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in this Agreement or the other Loan Documents or in any certificate,
report, statement or other document referred to or provided for in, or received
by such Administrative Agent under or in connection with, this Agreement or the
other Loan Documents or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan Documents or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrower or any of its Subsidiaries.
SECTION 12.4. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 13.10 hereof. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement and the other Loan Documents unless it shall first receive such advice
or concurrence of the Required Lenders (or, when expressly required hereby or by
the relevant other Loan Document, all the Lenders) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action except for its own gross negligence or
willful misconduct. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting,
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under this Agreement and the Notes in accordance with a request of the Required
Lenders (or, when expressly required hereby, all the Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Notes.
SECTION 12.5. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, it shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
SECTION 12.6. Non-Reliance on the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Borrower or any of its Subsidiaries,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower and its
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder or by the
other Loan Documents, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower and its Subsidiaries which may come into the
possession of such Administrative Agent or any of their respective officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or Affiliates.
SECTION 12.7. Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to the respective amounts of their Commitment Percentages,
from and against any and all liabilities, obligations, losses,
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damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement or the other Loan Documents, or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions judgments, suits, costs, expenses or disbursements
resulting solely from the Administrative Agent's bad faith, gross negligence or
willful misconduct. The agreements in this Section 12.7 shall survive the
payment of the Notes and all other amounts payable hereunder and the termination
of this Agreement.
SECTION 12.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrower as though the Administrative Agent were not an Administrative Agent
hereunder. With respect to any Loans made or renewed by it and any Note issued
to it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not an Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
SECTION 12.9 Resignation of Administrative Agent; Successor
Administrative Agents. Subject to the appointment and acceptance of a successor
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, and provided no Event of Default exists and is continuing, with the
consent of the Borrower not to be unreasonable withheld, which successor shall
have minimum capital and surplus of at least $500,000,000. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall have minimum capital and surplus of
at least $500,000,000 and, provided no Default or Event of Default then exists
and is continuing, be consented to by the Borrower. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, as the case may be, such successor Administrative Agent shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
as the case may be, the provisions of this Section 12.9 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. The Borrower shall not be
required to reimburse the Administrative Agent or any successor Administrative
Agent for expenses thereof arising solely as a result of any such resignation
and appointment.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices (a) Method of Communication. Except as otherwise
provided in this Agreement, all notices and communications hereunder shall be in
writing, or by telephone subsequently confirmed in writing. Any notice shall be
effective if delivered by hand delivery or sent via telecopy, recognized
overnight courier service or certified mail, return receipt requested, and shall
be presumed to be received by a party hereto (i) on the date of delivery if
delivered by hand or sent by telecopy, (ii) on the next Business Day if sent by
recognized overnight courier service and (iii) on the third Business Day
following the date sent by certified mail, return receipt requested. A
telephonic notice to any Administrative Agent as understood by such
Administrative Agent will be deemed to be the controlling and proper notice in
the event of a discrepancy with or failure to receive a confirming written
notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to the Borrower: Northland Cable Properties Six Limited Partnership
c/o Northland Communication Corporation
1201 Third Avenue, Suite 3600
Seattle, Washington 98101
Attention: Gary S. Jones and James A. Penney
Telephone No.: (206) 621-1351
Telecopy No.: (206) 623-9015
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If to First Union, First Union National Bank
as Administrative Agent: One First Union Center, DC-5
301 South College Street
Charlotte, North Carolina 28288-0735
Attention: James W. Wood
Telephone No.: (704) 374-3242
Telecopy No.: (704) 374-4092
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed.
SECTION 13.2 Expenses. The Borrower will pay all reasonable
out-of-pocket expenses (a) of the Administrative Agent in connection with: (i)
the preparation, execution and delivery of this Agreement and each of the other
Loan Documents, whenever the same shall be executed and delivered, including all
reasonable out-of-pocket due diligence expenses, appraiser's fees, search fees,
title insurance premiums, recording fees, taxes and reasonable fees and
disbursements of counsel for the Administrative Agent and (ii) the preparation,
execution and delivery of any waiver, amendment or consent by the Administrative
Agent or the Lenders relating to this Agreement or any of the other Loan
Documents including reasonable fees and disbursements of counsel for the
Administrative Agent, search fees, appraiser's fees, recording fees and taxes
imposed in connection therewith; and (b) of the Administrative Agent and each
Lender, upon occurrence and during the continuance of any Default or Event of
Default, in connection with administering and enforcing their respective rights
under the Loan Documents, including consulting with one or more Persons,
including appraisers, accountants, engineers and attorneys, concerning or
related to the nature, scope or value of any right or remedy of the
Administrative Agent or any Lender hereunder or under any of the other Loan
Documents, including any review of factual matters in connection therewith,
which expenses shall include the reasonable fees and disbursements of such
Persons.
SECTION 13.3 Set-off. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon and
after the occurrence of any Event of Default and during the continuance thereof,
the Lenders and any assignee or participant of a Lender in accordance with
Section 13.10 are hereby authorized by the Borrower at any time or from time to
time, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, time or demand, including, but not limited
to, indebtedness evidenced by certificates of deposit, whether matured or
unmatured, excluding government securities required by Applicable Law to be held
as security for worker's compensation and similar claims) and any other
indebtedness at any time held or owing by the Lenders, or any such assignee or
participant to or for the credit or the account of the Borrower against and on
account of the Obligations irrespective of whether or not (a) the Lenders shall
have made any demand under this Agreement or any of the other Loan Documents or
(b) the Administrative Agent shall
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have declared any or all of the Obligations to be due and payable as permitted
by Section 11.2 and although such Obligations shall be contingent or unmatured.
SECTION 13.4 Governing Law. THIS AGREEMENT, THE NOTES AND THE OTHER LOAN
DOCUMENTS, UNLESS OTHERWISE EXPRESSLY SET FORTH THEREIN, SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF.
SECTION 13.5 Consent to Jurisdiction. The Borrower hereby irrevocably
consents to the personal jurisdiction of the state and federal courts located in
Mecklenburg County, North Carolina, in any action, claim or other proceeding
arising out of any dispute in connection with this Agreement, the Notes and the
other Loan Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. The Borrower hereby irrevocably
consents to the service of a summons and complaint and other process in any
action, claim or proceeding brought by the Administrative Agent or Lender in
connection with this Agreement, the Notes or the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations, on behalf of itself or its property, in the manner specified in
Section 13.1. Nothing in this Section 13.5 shall affect the right of the
Administrative Agent or Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent or
Lender to bring any action or proceeding against the Borrower or its properties
in the courts of any other jurisdictions.
SECTION 13.6 Waiver of Jury Trial; Binding Arbitration.
(a) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
ADMINISTRATIVE AGENT, LENDER AND THE BORROWER HEREBY IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE
NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(b) Binding Arbitration. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to the Notes or any other
Loan Documents ("Disputes"), between or among parties to the Notes or any other
Loan Document shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising from
Loan Documents executed in the future, or claims concerning any aspect of the
past, present or future relationships arising out or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in Charlotte, North Carolina. The
expedited procedures set forth in Rule 51, et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000. All applicable statutes
of
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<PAGE> 72
limitation shall apply to any Dispute. A judgment upon the award may be entered
in any court having jurisdiction. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys. The single arbitrator
selected for expedited procedure shall be a retired judge from the highest court
of general jurisdiction, state or federal, of the state where the hearing will
be conducted. Notwithstanding the foregoing, this paragraph shall not apply to
any Hedging Agreement which is a Loan Document.
SECTION 13.7 Reversal of Payments. To the extent the Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
Collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 13.8 Injunctive Relief. The Borrower recognizes that, in the
event the Borrower fails to perform, observe or discharge any of its obligations
or liabilities under this Agreement, any remedy of law may prove to be
inadequate relief to the Lenders. Therefore, the Borrower agrees that the
Lenders, at the Lenders' option, shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.
SECTION 13.9 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrower or any of its Subsidiaries to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby or
unless there is an express written direction by the Administrative Agent to the
contrary agreed to by the Borrower, be performed in accordance with GAAP. In the
event that changes in GAAP shall be mandated by the Financial Accounting
Standards Board, or any similar accounting body of comparable standing, or shall
be recommended by the Borrower's certified public accountants, to the extent
that such changes would modify such accounting terms or the interpretation or
computation thereof, such changes shall be followed in defining such accounting
terms only from and after the date the Administrative Agent and the Lenders
shall have amended this Agreement to the extent necessary to reflect any such
changes in the financial covenants and other terms and conditions of this
Agreement.
SECTION 13.10 Successors and Assigns; Participation.
(a) Benefit of Agreement. This Agreement shall be binding upon and inure
to the benefit of the Borrower, the Administrative Agent and the Lenders, all
future holders of the Notes, and their respective successors and assigns, except
that the Borrower shall not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Lender.
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(b) Assignment by Lenders. Each Lender may, with the consent of the
Administrative Agent and (as long as no Event of Default then exists) the
Borrower, which consent of the Borrower shall not be unreasonably withheld,
assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations under this Agreement (including, without limitation, all
or a portion of the Obligations at the time owing to it and the Notes held by
it); provided, that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and obligations
under this Agreement;
(ii) if less than all of the assigning Lender's Commitment is to
be assigned, the Commitment so assigned shall in an amount at least
equal to $5,000,000 or an integral multiple of $ 1,000,000 in excess
thereof,
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance in the form of Exhibit F
attached hereto (an "Assignment and Acceptance"), together with any Note
or Notes subject to such assignment;
(iv) such assignment shall not, without the prior written consent
of the Borrower, require the Borrower to file a registration statement
with the Securities and Exchange Commission or apply to or qualify the
Loans or the Notes under the blue sky laws of any state;
(v) the assigning Lender shall pay to the Administrative Agent an
assignment fee of $2,500 upon the execution by such Lender of the
Assignment and Acceptance; provided that no such fee shall be payable
upon any assignment by a Lender to an Affiliate thereof; and
(vi) the Borrower shall not be required to incur any material
expense or to reimburse the assignor or assignee under this Section
13.10(b) for expenses thereof in any such case arising solely as a
result of such assignment, except for expenses incurred for the
preparation of new Notes.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
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(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Obligations with
respect to each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit F:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and the
Borrower; and
(iv) promptly deliver a copy of such Assignment and Acceptance
to the Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee in
amounts equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes delivered to the assigning Lender. Each surrendered Note
or Notes shall be canceled and promptly returned to the Borrower.
(f) Participation. Each Lender may, with the consent of the
Administrative Agent, which consent shall not be unreasonably withheld, sell
participation to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment and the Notes held by it); provided that:
(i) each such participation shall be in an amount not less than
$5,000,000;
(ii) such Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
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(iv) such Lender shall remain the holder of the Notes held by it
for all purposes of this Agreement;
(v) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement;
(vi) such Lender shall not permit such participant the right to
approve any waivers, amendments or other modifications to this Agreement
or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate
on any Loan, extend the term or increase the amount of the Commitment of
such participant, reduce the amount of any fees to which such
participant is entitled, extend any scheduled payment date for principal
or, except as expressly contemplated hereby, release Collateral;
(vii) any such disposition shall not, without the prior written
consent of the Borrower, require the Borrower to file a registration
statement with the Securities and Exchange Commission to apply to
qualify the Loans or the Notes under the blue sky law of any state; and
(viii) the Borrower shall not be required to incur any material
expense or to reimburse the applicable Lender or participant under this
Section 13.10(f) for expenses thereof in any such case arising solely as
a result of closing such participation.
(g) Disclosure of Information; Confidentiality. The Administrative Agent
and the Lenders shall hold all non-public information obtained pursuant to the
Loan Documents in accordance with their customary procedures for handling
confidential information. Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation pursuant to this
Section 13.10, with (unless a Default or Event of Default has occurred and is
continuing) prior approval of the Borrower, which approval shall not be
unreasonably withheld, disclose to the assignee, participant, proposed assignee
or proposed participant, any information relating to the Borrower or any of its
Subsidiaries furnished to such Lender by or on behalf of the Borrower; provided,
that prior to any such disclosure, each such assignee, proposed assignee,
participant or proposed participant shall agree with the Borrower or such Lender
(which in the case of an agreement with only such Lender, the Borrower shall be
recognized as a third party beneficiary thereof) to preserve the confidentiality
of any confidential information relating to the Borrower received from such
Lender.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
SECTION 13.11 Amendments, Waivers and Consents. Except as set forth
below, any term, covenant, agreement or condition of this Agreement or any of
the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or consent
is in writing signed by the Required Lenders (or by the
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<PAGE> 76
Administrative Agent with the consent of the Required Lenders) and delivered to
the Administrative Agent and, in the case of an amendment, signed by the
Borrower; provided, that no amendment, waiver or consent shall (i) increase the
amount or extend the time of the obligation of the Lenders to make Loans, (ii)
extend the time for a mandatory payment of the principal of any Loan or the time
or times of payment of interest on any Loan, (iii) reduce the rate of interest
or fees payable on any Loan, (iv) permit any subordination of the principal or
interest on any Loan, (v) release any material portion of the Collateral for any
Obligation (other than as specifically permitted in this Agreement or the
Security Documents) or (vi) amend the provisions of this Section 13.11 or the
definition of Required Lenders, without the prior written consent of each
Lender. In addition, no amendment, waiver or consent to the provisions of
Article XII shall be made without the written consent of the Administrative
Agent.
SECTION 13.12 Performance of Borrower's Duties. The Borrower's
obligations under this Agreement and each of the Loan Documents shall be
performed by the Borrower at its sole cost and expense.
SECTION 13.13 Indemnification. The Borrower agrees to reimburse the
Administrative Agent and the Lenders for all reasonable costs and expenses,
including all counsel, appraisal, or other expert or consultant fees and
disbursements incurred, and to indemnify and hold the Administrative Agent and
the Lenders harmless from and against all losses suffered by the Administrative
Agent and the Lenders in connection with (a) the exercise by the Administrative
Agent or the Lenders of any right or remedy granted to them under this Agreement
or any of the other Loan Documents, (b) any claim, and the prosecution or
defense thereof, arising out of or in any way connected with this Agreement or
any of the other Loan Documents, and (c) the collection or enforcement of the
Obligations or any of them; provided, that the Borrower shall not be obligated
to reimburse the Administrative Agent or any Lender for costs and expenses, or
indemnify the Administrative Agent or any Lender for any loss, resulting from
the gross negligence or willful misconduct of such Administrative Agent or such
Lender.
SECTION 13.14 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or Lenders pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Commitments have not been
terminated.
SECTION 13.15 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIII and any other
provision of this Agreement and the Loan Documents shall continue in full force
and effect for one year after such termination and until such date shall protect
the Administrative Agents and the Lenders against events arising after such
termination as well as before.
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SECTION 13.16 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 13.17 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 13.18 Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
SECTION 13.19 Term of Agreement. This Agreement shall remain in effect
from the Effective Date through and including the date upon which all
Obligations shall have been indefeasibly and irrevocably paid and satisfied in
full in cash. No termination of this Agreement shall affect the rights and
obligations of the parties hereto arising prior to such termination.
SECTION 13.20 Adjustments. If any Lender (a "Benefited Lender") shall at
any time receive any payment of all or part of the Obligations, or if any Lender
shall at any time receive any Collateral in respect to the Obligations (whether
voluntarily or involuntarily, by set-off or otherwise) in a greater proportion
than any such payment to and Collateral received by any other Lender, such
Benefited Lender shall purchase for cash from the other Lenders such portion of
each such other Lender's Loans, or shall provide such other Lenders with the
benefits of any such Collateral, or the proceeds thereof, as shall be necessary
to cause such Benefited Lender to share the excess payment or benefits of such
Collateral or proceeds ratably with each of the Lenders; provided, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefited Lender, such purchase shall be rescinded, and the purchase price
and benefits returned to the extent of such recovery, but without interest. The
Borrower agrees that each Lender so purchasing a portion of another Lender's
Loans may exercise all rights of payment (including, without limitation, rights
of set-off) with respect to such portion as fully as if such Lender were the
direct holder of such portion.
SECTION 13.21 Independent Effect of Covenants. The Borrower expressly
acknowledges and agrees that each covenant contained in Articles VIII, IX or X
hereof shall be given independent effect. Accordingly, the Borrower shall not
engage in any transaction or other act otherwise permitted under any covenant
contained in Articles VIII, IX or X if, before or after giving effect to such
transaction or act, the Borrower shall or would be in breach of any other
covenant contained in Articles VIII, IX or X.
SECTION 13.22 Recourse Loans. The Lenders shall have recourse to the
General Partners, in accordance with Applicable Law, in order to satisfy any due
but unsatisfied portion of the Obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
Borrower:
NORTHLAND CABLE PROPERTIES SIX LIMITED
PARTNERSHIP
[CORPORATE SEAL] By: Its Managing General Partner,
Northland Communications Corporation
By:__________________________________
Name:________________________________
Title________________________________
<PAGE> 79
Administrative Agent and Lender:
FIRST UNION NATIONAL BANK
By:_________________________________________
Name:__________________________________
Title:_________________________________
<PAGE> 80
Arranger:
FIRST UNION CAPITAL MARKETS, CORP.
By:_________________________________________
Name:__________________________________
Title:_________________________________
<PAGE> 81
BANK OF MONTREAL, CHICAGO BRANCH
By:_________________________________________
Name:__________________________________
Title:_________________________________
<PAGE> 82
Schedule 1
<TABLE>
<CAPTION>
Lender Revolving Term
- ------ Credit Commitment Loan Commitment
----------------- ---------------
<S> <C> <C>
First Union National Bank $4,848,484.85 $15,151,515.15
One First Union Center
TW-10
301 South College Street
Charlotte, NC 28288-0735
Attn: Syndication Agency
Services
Bank of Montreal, Chicago $3,151,515.15 $ 9,848,484.85
Branch
430 Park Avenue
New York, New York 10022
Attn: Ms. Karen Klapper
</TABLE>
<PAGE> 1
FIRST AMENDMENT
TO
ASSET PURCHASE AND SALE AGREEMENT
This First Amendment ("Amendment") is made as of December 31, 1997, and
is by and among NORTHLAND CABLE TELEVISION, INC., a Washington corporation,
("NCTV") NORTHLAND CABLE PROPERTIES SIX LIMITED PARTNERSHIP, a Washington
limited partnership ("NCP-Six"), INTERMEDIA PARTNERS OF CAROLINA, L.P., a
California limited partnership, and ROBIN CABLE SYSTEMS, L.P., a California
limited partnership (collectively, "Sellers").
RECITALS
A. NCTV and Sellers entered into that certain Asset Purchase and Sale
Agreement dated as of August 27, 1997 (the "Agreement"), pursuant to which NCTV
and its permitted assigns desire to purchase, and Sellers desire to sell and
convey, substantially all of the assets of Sellers used or useful in connection
with certain cable television systems, all as more particularly described in the
Agreement.
B. Pursuant to Section 12.2 of the Agreement, NCTV assigned to NCP-Six
in accordance with that certain Assignment and Assumption of Asset Purchase and
Sale Agreement dated as of October 27, 1997 all of its rights pursuant to the
Agreement relating to the cable systems serving (i) City of Bennettsville, the
City of McColl, the Town of Clio, the Town of Tatum, and nearby unincorporated
areas of Marlboro County; (ii) the City of Barnwell, the Town of Blackville, the
Town of Elko, the Town of Williston, the Town of Snelling and nearby
unincorporated areas of Barnwell County; (iii) the City of Bamberg, the City of
Denmark, and nearby unincorporated areas of Bamberg County; and (iv) the Town of
Allendale, the Town of Fairfax, and nearby unincorporated areas of Allendale
County (collectively, the "Bennettsville/Barnwell/Bamberg/ Allendale Area
Systems"), all in the State of South Carolina.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS
For the purposes of this Amendment, capitalized terms used herein and
not otherwise defined herein shall have the meanings ascribed to them in the
Agreement, unless the context clearly requires otherwise.
SECTION 2. NCP-SIX ASSIGNMENT AND ASSUMPTION
Sellers hereby acknowledge the assignment by NCTV to NCP-Six of all of
its rights and obligations pursuant to the Agreement relating to the
Bennettsville/Barnwell/Bamberg/Allendale
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<PAGE> 2
Area Systems. NCP-Six hereby acknowledges the assumption of its obligations as
Buyer under the Agreement relating to the
Bennettsville/Barnwell/Bamberg/Allendale Area Systems. A copy of the Assignment
and Assumption of Asset Purchase and Sale Agreement, dated as of October 27,
1997, is attached hereto as Exhibit N.
SECTION 3. CLOSING DATE AND ADJUSTMENT TIME
Notwithstanding the second sentence of Section 2.6 of the Agreement,
NCTV, NCP-Six and Sellers hereby agree the Closing Date shall be January 2, 1998
and that Closing shall take place no earlier than noon Seattle time on such day.
Notwithstanding the first sentence of Section 2.3(d) of the Agreement, NCTV,
NCP-Six and Sellers hereby agree the Adjustment Time shall be 12:01 am on
January 1, 1998.
SECTION 4. POLE ATTACHMENT VIOLATIONS
Sellers hereby acknowledge that South Carolina Gas & Electric Company
has given its consent to the assignment to NCTV and NCP-Six of those certain
pole attachment agreements, provided that certain existing pole attachment
violations be corrected within five years of Closing. Sellers acknowledge and
agree that by proceeding to Closing, neither NCTV nor NCP-Six has waived or
relinquished any right to claim that Sellers have breached their representations
in Section 3.6(b) or any other section of the Agreement or to make a claim for
Indemnifiable Damages under Section 10.1(a) of the Agreement.
SECTION 5. SALUDA ENVIRONMENTAL MATTERS
Sellers hereby acknowledge receipt of that certain Phase II
Environmental Site Assessment dated December 23, 1997 by Consultech Engineering,
Inc. covering the headend and office site real property located in Saluda, South
Carolina, a copy of which is attached hereto as Exhibit O. Sellers acknowledge
and agree that by proceeding to Closing, neither NCTV nor NCP-Six has waived or
relinquished any right to claim that Sellers have breached their representations
in Section 3.14(a) or any other section of the Agreement or to make a claim for
Indemnifiable Damages under Section 10.1(a) of the Agreement.
SECTION 6. AMENDMENT TO SCHEDULES
Pursuant to Section 12.6 of the Agreement, the following Schedules (each
dated December 30, 1997 for reference purposes) attached to this Amendment
hereby amend and replace the Schedules originally attached to the Agreement:
Schedule 1.5 - Assumed Contracts
Schedule 3.12 - Contracts and Instruments
Schedule 3.18 - Litigation
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<PAGE> 3
SECTION 7. REAL ESTATE LIENS
Pursuant to Section 3.8 of the Agreement, Sellers are obligated to
deliver title to the Real Property free and clear of all Liens, except for the
Permitted Liens. Sellers acknowledge receipt of those certain Title Insurance
Commitments from First American Title Insurance Company, in which certain
non-material exceptions to title are identified with respect to certain
properties to be purchased by NCTV and NCP-Six. Sellers, NCTV and NCP-Six hereby
agree to use their commercially reasonable efforts to remove such non-material
title exceptions within 30 days after the Closing Date.
SECTION 8. BAMBERG TOWER
Sellers acknowledge the tower located at the Bamberg headend site is not
in compliance with certain FCC rules and regulations. Sellers have agreed to
reduce the Purchase Price by the amount of $10,000 to compensate NCP-Six for the
cost of bringing such tower into compliance.
SECTION 9. PROGRAMMING AGREEMENT
Pursuant to Section 6.6 of the Agreement, NCTV and NCP-Six hereby agree
to pay Sellers $40,622 at Closing to terminate Sellers' programming agreement
for the TV Land programming, such that Buyers shall have no obligation with
respect to continued carriage of the TV Land programming.
SECTION 10. MICROWAVE EQUIPMENT
Sellers hereby agree to reduce the Purchase Price by the amount of
$10,000 to reflect the value of the microwave equipment identified on SCHEDULE
10 to this Amendment, which equipment will be retained by Sellers and not
conveyed to NCTV or NCP-Six at Closing.
SECTION 11. FULL FORCE AND EFFECT
Except as expressly set forth in this Amendment, the Agreement shall
remain in full force and effect, enforceable in accordance with its terms.
NCTV: NORTHLAND CABLE TELEVISION, INC.
By: _______________________________
James A. Penney, Vice President
Page 3
<PAGE> 4
NCP-SIX: NORTHLAND CABLE PROPERTIES SIX
LIMITED PARTNERSHIP
By Northland Communications Corporation,
Managing General Partner
By: _______________________________
James A. Penney, Vice President
SELLER: INTERMEDIA PARTNERS OF CAROLINA, L.P.
By: InterMedia Partners, a California limited partnership
Its General Partner
By: InterMedia Capital Management I, LLC,
Its General Partner
By: InterMedia Management, Inc.,
Its Managing Member
By: ______________________________
Rodney M. Royse, Vice President
SELLER: ROBIN CABLE SYSTEMS, L.P.
By MITGO CORP., Its general partner
By: _______________________________
Rodney M. Royse
Attorney-In-Fact
Page 4
