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) December 7, 1995
ADELPHIA COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-16014 23-2417713
(State or other
(Commission (IRS Employer
jurisdiction of incorporation) File
Number) Identification No.)
5 West Third Street - PO Box 472, Coudersport PA
16915
(Address of principal executive offices)
(Zip Code)
Registrant's telephone number, including area code (814) 274-9830
Item 5. Other Events
As disclosed in the Form 10-Q for Adelphia Communications Corporation
("Adelphia") for the quarterly period ended September 30, 1995, which was
filed with the Securities and Exchange Commission on November 14, 1995,
Adelphia had commitments from a bank to enter into a $190,000,000 one year
loan, the terms of which provide senior secured notes maturing October 1996.
The credit agreement related to such loan is attached hereto as Exhibit 10.35.
Item 7. Financial Statements and Exhibits
(c) The following exhibit is filed as part of this report on Form 8-K,
Exhibit 10.35 - Credit Agreement, dated as of October 27, 1995,
among Plato Communications, Inc., Northeast Cable, Inc.,
Robinson/Plum Cablevision L.P., the several other banks and other
financial institutions from time to time parties to this agreement
and Chemical Bank, as Administrative Agent.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: December 7, 1995 ADELPHIA COMMUNICATIONS CORPORATION
(Registrant)
By: /s/Timothy J. Rigas
Timothy J. Rigas
Executive Vice President,
Treasurer and Chief Financial Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
Exhibit 10.35 Credit Agreement, dated as of October 27, 1995, among
Plato Communications, Inc., Northeast Cable, Inc.,
Robinson/Plum Cablevision L.P., the several other
banks and other financial institutions from time to
time parties to this agreement and Chemical Bank, as
Administrative Agent.
CREDIT AGREEMENT, dated as of October __, 1995, among
PLATO COMMUNICATIONS, INC., a Delaware corporation ("Plato"),
NORTHEAST CABLE, INC., a Delaware corporation ("Northeast"),
MARTHA'S VINEYARD CABLEVISION, L.P., a Delaware limited
partnership ("MV"), ROBINSON/PLUM CABLEVISION L.P., a
Pennsylvania limited partnership ("Robinson"), the several banks
and other financial institutions from time to time parties to
this Agreement (the "Lenders") and Chemical Bank, a New York
banking corporation, as Administrative Agent for the Lenders
hereunder.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate in effect on such day plus 1% and (c) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by
the Administrative Agent as its prime rate in effect at its
principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by
Chemical Bank in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the
product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator
of which is one minus the C/D Reserve Percentage and (b) the
C/D Assessment Rate; "Three-Month Secondary CD Rate" shall
mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board of Governors of the
Federal Reserve System (the "Board") through the public
information telephone line of the Federal Reserve Bank of
New York (which rate will, under the current practices of
the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such
next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of
major money center banks in New York City received at
approximately 10:00 A.M., New York City time, on such day
(or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from
three New York City negotiable certificate of deposit
dealers of recognized standing selected by it; and "Federal
Funds Effective Rate" shall mean, for any day, 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 on the next succeeding
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 the day of
such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected
by it. Any change in the ABR due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to
which is based upon the ABR.
"ACC": Adelphia Communications Corporation, a Delaware
corporation.
"Affiliate Subordination Agreement": the Subordination
Agreement, dated as of an even date hereof, between ACC and
the Administrative Agent, as may be amended, modified or
supplemented from time to time.
"Acquisitions": the acquisitions by Robinson of
substantially all of the assets of Eastern Telecom
Corporation and Robinson Cable TV, Inc., for an aggregate
purchase price not to exceed $45,000,000.
"Active Plant": a coaxial or fiber optic television
cable, together with all amplifiers and electronics, which
has been connected to a Head End and has been energized and
which is capable of carrying television signals to
subscribers with only the addition of a drop line from such
television cable to the Homes of such subscribers.
"Additional Margin": for each ABR Loan and Eurodollar
Loan, (i) 0% for the period from the date hereof to the date
which is four months from the date hereof; (ii) .75% for the
period commencing at the end of the period described in
clause (i) and ending on the date which is six months after
the date hereof; (iii) 1.50% for the period commencing at
the end of the period described in clause (ii) and ending on
the date which is nine months after the date hereof; and
(iv) 2.25% thereafter.
"Adjustment Date": the second Business Day following
receipt by the Administrative Agent of both (a) the
financial statements required to be delivered pursuant to
subsection 5.1(a) or 5.1(b), as the case may be, for the
most recently completed fiscal period and (b) the Compliance
Certificate required to be delivered pursuant to subsection
5.2(b) with respect to such fiscal period.
"Administrative Agent": Chemical, together with its
Affiliates, in its capacity as administrative agent for the
Lenders under this Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person (other
than a Subsidiary) which, directly or indirectly, is in
control of, is controlled by, or is under common control
with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract
or otherwise.
"Agreement": this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Annualized Operating Cash Flow": with respect to any
fiscal quarter, Operating Cash Flow for such fiscal quarter
multiplied by four.
"Applicable Margin": initially, for each ABR Loan and
Eurodollar Loan, the applicable rate per annum set forth in
the Pricing Grid attached hereto as Annex A based upon the
ratio of Total Funded Debt outstanding on the initial
Borrowing Date (on a pro forma basis to reflect Loans made
after the Closing Date in respect of the Acquisitions) to
Annualized Operating Cash Flow with respect to the fiscal
quarter ended September 30, 1995; on the first Adjustment
Date to occur after the Closing Date and on each Adjustment
Date to occur thereafter, the Applicable Margin for all
Loans will be adjusted to the applicable rates per annum set
forth in the Pricing Grid attached hereto as Annex A
opposite the ratio of Total Funded Debt to Annualized
Operating Cash Flow determined from the financial statements
relating to such Adjustment Date, and provided, further,
that in the event that the financial statements required to
be delivered pursuant to subsection 5.1(a) or 5.1(b), as
applicable, and the related Compliance Certificate required
pursuant to subsection 5.2(b), are not delivered when due,
then (x) if such financial statements are delivered after
the date such financial statements were required to be
delivered and the Applicable Margin increases from that
previously in effect as a result of the delivery of such
financial statements, the Applicable Margin during the
period from the date upon which such financial statements
were required to be delivered until the date upon which they
actually are delivered shall, except as otherwise provided
in clause (y) below, be the Applicable Margin as so
increased and (y) if such financial statements are not
delivered prior to the date upon which the resultant Default
shall become an Event of Default, effective upon such
Default becoming an Event of Default, during the period from
the date upon which such financial statements were required
to be delivered until two Business Days following the date
upon which they actually are delivered, the Applicable
Margin shall be .75%, in the case of ABR Loans and 1.75%, in
the case of Eurodollar Loans.
"Asset Sale": as to any Person, any sale or other
disposition (including any sale and leaseback of assets, and
any mortgage or lease of real property), or any series of
related sales or other dispositions, subsequent to the
Closing Date of or relating to any System and/or Franchise
owned or operated by such Person or any of its Subsidiaries.
"Assignee": as defined in subsection 9.6(c).
"Available Capital Contributions": as to the Borrowers
and their Subsidiaries at any time, the excess of (a) the
aggregate amount of Capital Contributions made to the
Borrowers and their Subsidiaries subsequent to the Closing
Date over (b) the sum of (i) the aggregate amount of
Management Fees paid subsequent to the Closing Date pursuant
to subsection 6.16(ii), plus (ii) the aggregate amount of
Restricted Payments made by the Borrowers and their
Subsidiaries subsequent to the Closing Date pursuant to
subsection 6.7(c).
"Available Commitment": as to any Lender at any time,
an amount equal to the excess, if any, of (a) the amount of
such Lender's Commitment over (b) the aggregate principal
amount of all Loans made by such Lender then outstanding.
"Basic Subscriber": all of the following to the extent
they receive basic cable television service provided by the
Systems owned or operated by a Borrower or any of its
Subsidiaries: (a) private residential customer accounts
which are not more than sixty days past due (including those
of employees of a Borrower and its Subsidiaries and
Affiliates and regardless of whether the service is provided
in single family homes or in individually billed units in
multi-unit buildings, but excluding "second connects" or
"additional outlets" as such terms are commonly understood
in the cable television industry), each of which shall be
counted as one Basic Subscriber; and (b) commercial and
bulk-billed accounts which are not more than sixty days past
due, such as hotels, motels, apartment houses and
multifamily homes, provided that the number of Basic
Subscribers serviced by each commercial or bulk-billed
account shall be determined as the quotient of the monthly
basic service revenue derived from such commercial or
bulk-billed account (excluding any charges for taxes or
other nonrecurring items) divided by the predominant monthly
fees and charges derived from the provision of "basic
service" as that term is commonly understood in the cable
television industry (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).
"Borrowers": at any time, Plato, Northeast, MV and
Robinson and, if CVA shall have become a Borrower pursuant
to subsection 9.16, CVA.
"Borrowing Date": any Business Day specified in a
notice pursuant to subsection 2.2 as a date on which the
Borrowers request the Lenders to make Loans hereunder.
"Business": as defined in subsection 3.20.
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are
authorized or required by law to close.
"Cable Act": the Cable Communications Policy Act of
1984 and the Cable Television Consumer Protection Act of
1992 and the rules and regulations promulgated thereunder,
in each case as from time to time in effect.
"Capital Contribution": as to a Borrower or any of its
Subsidiaries, any cash capital contribution to such Borrower
or any of its Subsidiaries by any of its Affiliates,
including, without limitation, as a result of the purchase
of the Capital Stock of such Borrower or any of its
Subsidiaries by such Affiliate.
"Capital Expenditures": for any period, the aggregate
amount paid or accrued by a Borrower and its Subsidiaries
for the rental, lease, purchase (including by way of the
acquisition of securities of a Person), construction or use
of any property during such period, the value or cost of
which, in accordance with GAAP, would appear on such
Borrower's consolidated and combined balance sheet in the
category of property, plant or equipment at the end of such
period.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent
ownership interests (including partnership interests) in a
Person (other than a corporation) and any and all warrants
or options to purchase any of the foregoing.
"Cash Balance": at any date of determination for any
Borrower, the aggregate amount of cash and Cash Equivalents
of such Borrower and its Subsidiaries at such date of
determination, as determined on a consolidated and combined
basis in accordance with GAAP.
"Cash Equivalents": (i) securities issued or directly
and fully guaranteed or insured by the United States
Government or any agency or instrumentality thereof having
maturities of not more than one year from the date of
acquisition, (ii) time deposits and certificates of deposit
having maturities of not more than one year from the date of
acquisition of any Lender or of any domestic commercial bank
which has a certificate of deposit rating equal to one of
the two highest ratings by Standard & Poor's Corporation or
Moody's Investors Service, Inc., (iii) repurchase
obligations with a term of not more than seven days for
underlying securities of the types described in clauses (i)
and (ii) entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv)
commercial paper rated at least A-1 or the equivalent
thereof by Standard & Poor's Corporation or P-1 or the
equivalent thereof by Moody's Investors Service, Inc. and in
either case maturing within nine months after the date of
acquisition and (v) debt securities having maturities of not
more than one year from the date of acquisition issued by
any Person organized under the laws of any State of the
United States or of the District of Columbia, which
securities are rated within the two highest rating
categories by Standard and Poor's Corporation or Moody's
Investors Service, Inc.
"CATV System": any System that is a community antenna
television system as such term is commonly understood in the
cable television industry.
"C/D Assessment Rate": for any day as applied to any
ABR Loan to which the Base CD Rate applies, the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund maintained by the Federal
Deposit Insurance Corporation (the "FDIC") classified as
well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. 327.3(d) (or any successor
provision) to the FDIC (or any successor) for the FDIC's (or
such successor's) insuring time deposits at offices of such
institution in the United States.
"C/D Reserve Percentage": for any day as applied to
any ABR Loan to which the Base CD Rate applies, that
percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) (the "Board"), for
determining the maximum reserve requirement for a Depositary
Institution (as defined in Regulation D of the Board) in
respect of new non-personal time deposits in Dollars having
a maturity comparable to the Interest Period for such ABR
Loan.
"Change of Control": (a) ACC shall cease for any
reason to own, directly or indirectly, (i) at least 75% of
the Capital Stock of each of the Borrowers other than MV or
(ii) at least 75% of the preferred limited partnership
interests of MV or 75% of the general partnership interests
thereof or (b) the Rigas Family shall cease for any reason
to own, directly or indirectly, Capital Stock of ACC which
entitle the holders thereof to cast more than 75% of the
total number of votes that holders of all of ACC's Capital
Stock then outstanding would be entitled to cast on a matter
where the Class A common stock and Class B common stock of
the Capital Stock vote together as a single class, provided,
however, that such percentage may, with the prior written
consent of the Required Lenders which consent shall not be
unreasonably withheld, be less than 75%, but in no event
shall such percentage be less than 51%.
"Chelsea": Chelsea Communications, Inc., a Delaware
corporation.
"Chelsea Facility": that certain $450 million credit
facility pursuant to that certain Credit Agreement, dated as
of September 25, 1989, among Chelsea, the lenders party
thereto and The Toronto-Dominion Bank Trust Company and NCNB
Texas National Bank, as Agents.
"Chemical": Chemical Bank.
"Closing Date": the date on which the conditions
precedent set forth in subsection 4.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral": a first priority pledge of all of the
Capital Stock of each of the Borrowers pursuant to the
Pledge Agreements.
"Commitment": as to any Lender, the obligation of such
Lender to make Loans to the Borrowers hereunder in an
aggregate principal amount at any one time outstanding not
to exceed the amount set forth opposite such Lender's name
on Schedule I, as such amount may be reduced from time to
time in accordance with the provisions of this Agreement.
"Commitment Percentage": as to any Lender at any time,
the percentage which such Lender's Commitment then
constitutes of the aggregate Commitments (or, at any time
after the Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such
Lender's Loans then outstanding constitutes of the aggregate
principal amount of the Loans then outstanding).
"Commitment Period": the period from and including the
date hereof to but not including the Termination Date or
such earlier date on which the Commitments shall terminate
as provided herein.
"Commonly Controlled Entity": an entity, whether or
not incorporated, which is under common control with any
Borrower within the meaning of Section 4001 of ERISA or is
part of a group which includes such Borrower and which is
treated as a single employer under Section 414 of the Code.
"Communications Act": the Communications Act of 1934
and the rules and regulations promulgated thereunder, in
each case as from time to time in effect.
"Compliance Certificate": a certificate of a Borrower
executed and delivered on behalf of such Borrower by a
Responsible Officer of the Borrower, substantially in the
form of Exhibit C, or in such other form as the
Administrative Agent may reasonably request.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such
Person is a party or by which it or any of its property is
bound.
"Copyright Act": Title 17 of the United States Code
and the rules and regulations promulgated thereunder, in
each case as from time to time in effect.
"CVA": Central Virginia Cable, Inc., a Delaware
corporation.
"Default": any of the events specified in Section 7,
whether or not any requirement for the giving of notice, the
lapse of time, or both, or any other condition, has been
satisfied.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Environmental Laws": any and all foreign, Federal,
state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of
human health or the environment, as now or may at any time
hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as
applied to a Eurodollar Loan, the aggregate (without
duplication) of the rates (expressed as a decimal fraction)
of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of
Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect
thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate": with respect to each day
during each Interest Period pertaining to a Eurodollar Loan,
the rate per annum equal to the rate at which Chemical is
offered Dollar deposits at or about 10:00 A.M., New York
City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for
delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable
to the amount of its Eurodollar Loan to be outstanding
during such Interest Period.
"Eurodollar Loans": Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, a rate
per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in
Section 7, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition,
has been satisfied.
"Excess Cash Balance": at any date of determination,
the excess, if any, of the Cash Balance at such date of
determination over $1,000,000.
"FCC": the Federal Communications Commission or any
Governmental Authority which succeeds to the powers and
functions thereof.
"FCC Licenses": any license or permit issued by the
FCC, including, without limitation, licenses issued for the
operation of CATV Systems, SMATV Systems, community antenna
relay systems, microwave systems and earth stations.
"Financing Lease": any lease of property, real or
personal, the obligations of the lessee in respect of which
are required in accordance with GAAP to be capitalized on a
balance sheet of the lessee.
"Franchise": a franchise, license (including, without
limitation, any FCC License) or other authorization or right
to construct, own, operate, promote and/or otherwise exploit
any cable television system or the reception and
transmission of signals by microwave granted by the FCC or
any state, county, city, town, village or other local
Governmental Authority.
"GAAP": generally accepted accounting principles in
the United States of America in effect from time to time.
"Gans Family": any of Joseph S. Gans, Sr., Irene F.
Gans, Joseph S. Gans, III, Janice Gans-Moisey or their
respective spouses and children and trusts, partnerships,
corporations or other entities controlled by one or more
such Persons. For purposes of this definition, the term
"controlled" means the ownership, directly or indirectly, of
equity securities or other ownership interests in a Person
by another Person or Persons, which represent more than 50%
of the voting power in such Person.
"General Partners": U.S. Tele-Media Investment
Company, a Pennsylvania corporation, the general partner of
MV, and Plato, in the capacity of general partner of
Robinson.
"Governmental Authority": any nation or government,
any state or other political subdivision thereof and any
entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Guarantee Obligation": as to any Person (the
"guaranteeing person"), any obligation of (a) the
guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third
Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency
of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.
The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as
determined by a Borrower in good faith.
"Head End": the site and related facilities and
equipment used as the head end for a System, including the
antenna site, the tower and the antenna, the microwave
communications equipment, the earth station and the head end
facilities.
"Home": a single residential dwelling or commercial
building which can be connected by a single drop line. In
the case of multiple residential dwellings, such as
apartment houses and multi-family homes, which do not obtain
reduced bulk service rates, each separate dwelling unit
shall be counted as one Home. The number of Homes in a
multiple residential dwelling which does obtain a reduced
bulk service rate shall be the number of Basic Subscribers
for such multiple residential dwelling.
"Home Passed": a Home which can be connected by a
single drop line from Active Plant.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of
business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which
is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under
Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of
such Person and (e) all liabilities secured by any Lien on
any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment
thereof.
"Insolvency": with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning
of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Expense": for any period, the aggregate
interest expense of the Borrowers and their Subsidiaries
with respect to Total Funded Debt during such period, as
determined on a consolidated and combined basis in
accordance with GAAP.
"Interest Payment Date": (a) as to any ABR Loan, the
last day of each March, June, September and December and
(b) as to any Eurodollar Loan, the last day of each Interest
Period with respect thereto.
"Interest Period": with respect to any Eurodollar
Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two or
three months thereafter, as selected by the Borrower in
its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two
or three months thereafter, as selected by the Borrower
by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of
the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry
such Interest Period into another calendar month in
which event such Interest Period shall end on the
immediately preceding Business Day;
(2) any Interest Period that would otherwise
extend beyond the Termination Date or beyond the date
final payment is due on the Loans shall end on the
Termination Date or such date of final payment, as the
case may be;
(3) 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 a calendar month;
and
(4) the Borrowers shall select Interest Periods
so as not to require a payment or prepayment of any
Eurodollar Loan during an Interest Period for such
Loan.
"Interest Rate Protection Agreements": as to any
Person, all interest rate swaps, caps or collar agreements
or similar arrangements entered into by such Person
providing for protection against fluctuations in interest
rates or currency exchange rates or the exchange of nominal
interest obligations, either generally or under specific
contingencies.
"Investment": as to any Person, any direct or indirect
purchase or other acquisition by such Person of the Capital
Stock, bonds, notes, debentures, or other securities of any
other Person, or any assets constituting a business unit of
any other Person, or any direct or indirect loan, advance
extension of credit or capital contribution by such Person
to any other Person, including, without limitation, (a) the
Acquisitions and (b) all Indebtedness and accounts
receivable owed to such Person by such other Person
(including, without limitation, any such Indebtedness or
accounts receivable which do not arise out of sales to such
other Person in the ordinary course of business).
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or
any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or
other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the
foregoing).
"Loans": as defined in subsection 2.1.
"Loan Documents": this Agreement, any Notes, the
Pledge Agreements, the Management Subordination Agreements
and the Affiliate Subordination Agreement.
"Loan Parties": the Borrowers and ACC.
"Majority Lenders": at any time, Lenders the
Commitment Percentages of which aggregate more than 50%.
"Management Agreements": collectively, (a) the
Management Services Agreement for Managed Systems, dated as
of January 1, 1995, by and between Adelphia Cable T.V.,
Inc., a Pennsylvania corporation, and Northeast, (b) the
Management Services Agreement for Managed Systems, dated as
of January 1, 1995, by and between ACC and Plato, (c) the
Management Services Agreement, dated as of January 31, 1995,
by and between Adelphia Cablevision, Inc., a Pennsylvania
corporation, and MV (formerly Tele-Media Company of Martha's
Vineyard, L.P.) and (d) the Management Services Agreement
for Managed Systems, dated as of the date of the
Acquisition, by and between Adelphia Cablevision, Inc., a
Pennsylvania corporation and Robinson, in each case as the
same may be amended, supplemented or otherwise modified from
time to time in accordance with subsection 6.9.
"Management Fees": amounts payable by a Borrower and
its Subsidiaries to any Person (including, without
limitation, the Manager or any other Affiliate of such
Borrower) on account of compensation, fees, salary or
otherwise, for providing management or supervisory services.
"Management Subordination Agreements": the Management
Subordination Agreements to be entered into by a Borrower,
each Subsidiary of such Borrower, the Manager and the
Administrative Agent, substantially in the form of Exhibit
D, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection
6.9.
"Manager": collectively, Adelphia Cable T.V., Inc.,
ACC and Adelphia Cablevision, Inc. and Affiliates thereof
which are reasonably acceptable to the Required Lenders,
provided that such Affiliate or Affiliates shall have agreed
to be bound by the terms of the Management Subordination
Agreement by executing a Supplement to the Management
Subordination Agreement in the form attached thereto.
"Material Adverse Effect": a material adverse effect
on (a) the business, operations, property, condition
(financial or otherwise) or prospects of a Borrower and its
Subsidiaries taken as a whole or (b) the validity or
enforceability of this or any of the other Loan Documents or
the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or
under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Net Income": for any period, the net income of the
Borrowers and their Subsidiaries for such period, as
determined on a combined basis in accordance with GAAP.
"Net Proceeds": with respect to any Asset Sale by a
Borrower or any of its Subsidiaries, 100% of the cash
proceeds (including any cash payments received by way of
deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of
such Asset Sale net of (i) reasonable and customary amounts
of attorneys' fees, accountants' fees, investment banking
fees, survey costs, title insurance premiums, and related
search and recording charges, transfer taxes, deed or
mortgage recording taxes, required debt payments (other than
pursuant hereto), other customary expenses and brokerage,
consultant and other customary fees actually incurred in
connection therewith (other than such amounts payable to
Affiliates) and (ii) taxes paid or payable as a result
thereof.
"Non-Excluded Taxes": as defined in subsection 2.15.
"Note": as defined in subsection 2.5(e).
"Operating Cash Flow": for any period, (a) Net Income
for such period, plus, to the extent deducted in determining
such Net Income, (i) interest expense, (ii) Management Fees,
(iii) depreciation, (iv) amortization, (v) income taxes and
(vi) all other non-cash expenses, all as determined on a
combined basis for the Borrowers and their Subsidiaries in
accordance with GAAP, minus, to the extent included in
determining such Net Income, all non-cash income and non-
cash gains and all fees, interest income, dividends and
distributions received from Affiliates to the extent such
fees, interest income, dividends and distributions (i) were
not paid in cash or (ii) if paid in cash, exceed 10% of
Operating Cash Flow for such period (before giving effect to
such payment), provided that, if any Borrower or any of its
Subsidiaries shall have made one or more acquisitions during
such period (including, without limitation the
Acquisitions), Operating Cash Flow for such period shall be
adjusted on a pro forma basis to give effect to all such
acquisitions as if they had occurred at the beginning of
such period and to reflect all cost savings reasonably
anticipated in good faith by the Borrowers to be achieved in
connection therewith and provided, further, that if any
Borrower or any of its Subsidiaries shall have effected one
or more Asset Sales during such period, Operating Cash Flow
for such period shall be adjusted on a pro forma basis to
give effect to all such Asset Sales as if they had occurred
at the beginning of such period.
"Participant": as defined in subsection 9.6(b).
"Partnership Pledge Agreements": the Partnership Pledge
Agreements to be executed and delivered by U.S. Tele-Media
Investment Company, Plato and Northeast, respectively, each
substantially in the form of Exhibit B-2, as the same may be
amended, supplemented or otherwise modified from time to
time.
"Pay Subscriber": has the meaning generally ascribed
to such term in the cable television industry.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at a particular time, any employee benefit
plan which is covered by ERISA and in respect of which any
Borrower or a Commonly Controlled Entity is (or, if such
plan were terminated at such time, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the
Stock Pledge Agreements and the Partnership Pledge
Agreements.
"Pole Rental Leases": leases under which a Borrower or
any of its Subsidiaries has the right to use telephone or
utility poles, conduits or trenches for the purpose of
supporting or housing cables of any System owned or operated
by such Borrower or any of its Subsidiaries.
"Properties": as defined in subsection 3.20.
"Refinancing": as defined in subsection 4.1(b).
"Register": as defined in subsection 9.6(d).
"Regulation U": Regulation U of the Board of Governors
of the Federal Reserve System as in effect from time to
time.
"Reorganization": with respect to any Multiemployer
Plan, the condition that such plan is in reorganization
within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in
Section 4043(b) of ERISA, other than those events as to
which the thirty day notice period is waived under
subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
2615.
"Required Lenders": at any time, Lenders the
Commitment Percentages of which aggregate more than 50%.
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any
of its property or to which such Person or any of its
property is subject.
"Responsible Officer": with respect to any Loan Party,
(a) if such Loan Party is a partnership, such senior
personnel of the General Partner of such partnership,
including the chief executive officer and the president or,
with respect to financial matters, the chief financial
officer, as may be duly authorized and designated in writing
by such General Partner to the Administrative Agent to
execute the Loan Documents to which the Loan Party is a
party and any other documents, agreements or instruments to
be delivered by such Loan Party thereunder and (b) if such
Loan Party is a corporation, such senior personnel of such
Loan Party, including the chief executive officer and the
president or, with respect to financial matters, the chief
financial officer, as may be duly authorized and designated
in writing by such Loan Party to the Administrative Agent to
execute the Loan Documents to which such Loan Party is a
party and any other documents, agreements or instruments to
be delivered by such Loan Party thereunder.
"Restricted Investments": as to any Person, any
Investment by such Person in any of its Affiliates or
Subsidiaries.
"Restricted Payments": as defined in subsection 6.7.
"Rigas Family": any of John J. Rigas, Timothy J.
Rigas, James P. Rigas, Ellen K. Rigas, Michael J. Rigas or
their respective spouses and children and trusts,
partnerships, corporations or other entities controlled by
one or more of such Persons, provided that neither ACC nor
any of its Subsidiaries shall be deemed to be a part of the
Rigas Family. For purposes of this definition, the term
"controlled" means the ownership, directly or indirectly, of
equity securities or other ownership interests in a Person
by another Person or Persons, which represent more than 50%
of the voting power in such Person.
"Single Employer Plan": any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"SMATV System": any System that is a satellite master
antenna television system as such term is commonly
understood in the cable television industry.
"Solvent": when used with respect to any Person, means
that, as of any date of determination, (a) the amount of the
"present fair saleable value" of the assets of such Person
will, as of such date, exceed the amount that will be
required to pay all "liabilities of such Person, contingent
or otherwise", as of such date (as such quoted terms are
determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors)
as such debts become absolute and matured, (b) such Person
will not have, as of such date, an unreasonably small amount
of capital with which to conduct its business and (c) such
Person will be able to pay its debts as they mature, taking
into account the timing of and amounts of cash to be
received by such Person and the timing of and amounts of
cash to be payable on or in respect of indebtedness of such
Person; in each case after giving effect to (A) as of the
Closing Date, the making of the Loans to be made on the
Closing Date and to the application of the proceeds of such
Loans and (B) on any date after the Closing Date, the making
of any Loan to be made on such date, and to the application
of the proceeds of such Loan. For purposes of this
definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not
such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured or unmatured,
disputed, undisputed, secured or unsecured.
"Stock Pledge Agreement": the Stock Pledge Agreement
to be executed and delivered by ACC, substantially in the
form of Exhibit B-1, as the same may be amended,
supplemented or otherwise modified from time to time.
"Subsidiary": as to any Person, (i) a corporation of
which shares of stock having ordinary voting power (other
than stock having such voting power only by reason of the
happening of a contingency) sufficient to elect a majority
of the board of directors of such corporation is at the time
directly or indirectly through one or more intermediaries,
or both, owned, or the management of which is controlled, by
such Person, or (ii) a partnership, joint venture or other
entity of which ownership, equity or similar interests
having the power to direct or cause the direction of
management and policies, or the power to elect the managing
general partner (or the equivalent), of such partnership,
joint venture or other entity, as the case may be, is at the
time directly or indirectly through one or more
intermediaries, or both owned, or the management of which
is controlled by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or Subsidiaries
of a Borrower.
"System": as to any Person, assets constituting a CATV
System or SMATV System (including, without limitation, all
related licenses, franchises and permits issued under
federal or local laws from time to time, and all Pole Rental
Leases, utility easements and other property services
provided pursuant to, and all interest of such Person to
receive payments from, or pursuant to, said licenses,
franchises and permits) owned and operated by such Person
and serving subscribers within a geographical area covered
by one or more Franchises from the same Head End facility or
by two or more related Head End facilities.
"Termination Date": October __, 1996.
"Total Funded Debt": on any date of determination, all
then outstanding Indebtedness of the Borrowers in respect of
the Loans.
"Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all
of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been
made on the same day).
"Transferee": as defined in subsection 9.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in any Notes or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any
certificate or other document made or delivered pursuant hereto,
accounting terms relating to a Borrower and its Subsidiaries not
defined in subsection 1.1 and accounting terms partly defined in
subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) 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, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of
such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Lender severally agrees to make
revolving credit loans ("Loans") to the Borrowers, on a joint and
several basis, from time to time during the Commitment Period in
an aggregate principal amount at any one time outstanding not to
exceed the amount of such Lender's Commitment. During the
Commitment Period the Borrowers may use the Commitments by
borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as
determined by the Borrowers and notified to the Administrative
Agent in accordance with subsections 2.2 and 2.7, provided that
no Loan shall be made as a Eurodollar Loan after the day that is
one month prior to the Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The
Borrowers may borrow under the Commitments during the Commitment
Period on any Business Day, provided that the Borrowers shall
give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 10:00 A.M.,
New York City time, (a) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested
Loans are to be initially Eurodollar Loans or (b) one Business
Day prior to the requested Borrowing Date, otherwise), specifying
(i) the amount to be borrowed, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Eurodollar Loans, ABR
Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the respective amounts of
each such Type of Loan and the respective lengths of the initial
Interest Periods therefor. Each borrowing under the Commitments
shall be in an amount equal to (x) in the case of ABR Loans,
$1,000,000 or a whole multiple thereof (or, if the then Available
Commitments are less than $1,000,000, such lesser amount) and (y)
in the case of Eurodollar Loans, $5,000,000 or a whole multiple
of $1,000,000 in excess thereof. Upon receipt of any such notice
from the Borrowers, the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of
its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrowers at the
office of the Administrative Agent specified in subsection 9.2
prior to 11:00 A.M., New York City time, on the Borrowing Date
requested by the Borrowers in funds immediately available to the
Administrative Agent. Such borrowing will then be made available
to the Borrowers by the Administrative Agent crediting the
account of the Borrowers on the books of such office with the
aggregate of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by the
Administrative Agent.
2.3 Commitment Fee. The Borrowers jointly and
severally agree to pay to the Administrative Agent for the
account of each Lender a commitment fee for the period from and
including the first day of the Commitment Period to the
Termination Date, computed at the rate of 3/8ths of 1% per annum
on the average daily amount of the Available Commitment of such
Lender during the period for which payment is made, payable
quarterly in arrears on the last day of each January, April, July
and October and on the Termination Date or such earlier date as
the Commitments shall terminate as provided herein, commencing on
the first of such dates to occur after the date hereof.
2.4 Termination or Reduction of Commitments. (a) The
Commitments shall be reduced permanently, upon the expiration of
the applicable time period specified below, if any, on the date
of consummation of any Asset Sale permitted under subsection
6.6(a) the Net Proceeds of which are greater than $1,000,000 by
an amount equal to the Net Proceeds of such Asset Sale (and, in
any event, all the Net Proceeds of any Asset Sale shall be
applied to the prepayment of the Loans).
(b) The Borrowers shall have the right, upon not less
than five Business Days' notice to the Administrative Agent, to
terminate the Commitments or, from time to time, to reduce the
amount of the Commitments. Any such reduction shall be in an
amount equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and shall reduce permanently the Commitments then
in effect.
(c) The Commitments shall be automatically terminated
on the date of the payment of all outstanding indebtedness under
the Chelsea Facility.
2.5 Repayment of Loans; Evidence of Debt. (a) The
Borrowers hereby jointly and severally unconditionally promise to
pay to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Loan of such Lender on
the Termination Date (or such earlier date on which the Loans
become due and payable pursuant to Section 7). The Borrowers
hereby further jointly and severally agree to pay interest on the
unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at
the rates per annum, and on the dates, set forth in subsection
2.9.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
the Borrowers to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain the
Register pursuant to subsection 9.6(d), and a subaccount therein
for each Lender, in which shall be recorded (i) the amount of
each Loan made hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder and (iii) both the amount of
any sum received by the Administrative Agent hereunder from the
Borrowers and each Lender's share thereof.
(d) The entries made in the Register and the accounts
of each Lender maintained pursuant to subsection 2.5(b) shall, to
the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the joint and several obligations
of the Borrowers therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the
Register or any such account, or any error therein, shall not in
any manner affect the joint and several obligations of the
Borrowers to repay (with applicable interest) the Loans made to
the Borrowers by such Lender in accordance with the terms of this
Agreement.
(e) The Borrowers agree that, upon the request to the
Administrative Agent by any Lender, the Borrowers will execute
and deliver to such Lender a joint and several promissory note of
the Borrowers evidencing the respective Loans of such Lender,
substantially in the form of Exhibit A with appropriate
insertions as to date and principal amount (a "Note").
2.6 Optional and Mandatory Prepayments. (a) Subject
to subsection 2.16, the Borrowers may at any time, and from time
to time, prepay the Loans, in whole or in part, without premium
or penalty, by giving to the Administrative Agent irrevocable
notice at least three Business Days prior to such prepayment
specifying the date and amount of prepayment. Upon receipt of
any such notice the Administrative Agent shall promptly notify
each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to
subsection 2.16 and, in the case of any prepayment of the entire
outstanding principal amount of the Loans, interest accrued
through the date of prepayment. Partial prepayments shall be in
an aggregate principal amount of $5,000,000 or a whole multiple
of $1,000,000 in excess thereof.
(b) The Borrowers shall immediately, without notice or
demand, be jointly and severally obligated to prepay the Loans to
the extent that the aggregate Loans outstanding at any time
exceeds the Commitments at such time. Each prepayment pursuant
to this subsection 2.6(b) shall be accompanied by payment of any
amounts due in connection therewith pursuant to subsection 2.16.
Loans prepaid pursuant to this subsection 2.6(b) may not be
reborrowed.
2.7 Conversion and Continuation Options. (a) The
Borrowers may elect from time to time to convert Eurodollar Loans
to ABR Loans by giving the Administrative Agent at least two
Business Days' prior irrevocable notice of such election,
provided that any such conversion of Eurodollar Loans (i) may
only be made on the last day of an Interest Period with respect
thereto and (ii) must be in an amount equal to $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. A Borrower may
elect from time to time to convert ABR Loans to Eurodollar Loans
by giving the Administrative Agent at least three Business Days'
prior irrevocable notice of such election. Any such notice of
conversion to Eurodollar Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon
receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of
outstanding Eurodollar Loans and ABR Loans may be converted as
provided herein, provided that (i) no ABR Loan may be converted
into a Eurodollar Loan when any Event of Default has occurred and
is continuing and the Administrative Agent has or the Required
Lenders have determined that such a conversion is not appropriate
and (ii) no Loan may be converted into a Eurodollar Loan after
the date that is one month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon
the expiration of the then current Interest Period with respect
thereto by the Borrowers giving notice to the Administrative
Agent, in accordance with the applicable provisions of the term
"Interest Period" set forth in subsection 1.1, of the length of
the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan may be continued as such (i) when any
Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined
that such a continuation is not appropriate or (ii) after the
date that is one month prior to the Termination Date and
provided, further, that if the Borrowers shall fail to give such
notice or if such continuation is not permitted such Loans shall
be automatically converted to ABR Loans on the last day of such
then expiring Interest Period.
2.8 Minimum Amounts and Maximum Number of Tranches.
All borrowings, conversions and continuations of Loans hereunder
and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, after
giving effect thereto, the aggregate principal amount of the
Loans comprising each Tranche shall be equal to $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. In no event
shall there be more than 7 Tranches outstanding at any time.
2.9 Interest Rates and Payment Dates. (a) Each ABR
Loan shall bear interest at a rate per annum equal to the ABR
plus the Applicable Margin plus the Additional Margin.
(b) Each Eurodollar Loan shall bear interest for each
day during each Interest Period with respect thereto at a rate
per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin plus the Additional Margin.
(c) If all or a portion of (i) any principal amount of
any Loan, (ii) any interest payable thereon, or (iii) any
commitment fee or any other amount payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or
otherwise), all amounts outstanding under this Agreement, whether
on account of principal, interest, commitment fees or otherwise
shall bear interest at a rate per annum which is (x) in the case
of principal, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this subsection plus 2%
or (y) in the case of interest, commitment fees or other amount,
the rate described in paragraph (a) of this subsection plus 2%,
in each case from the date of such non-payment until such amount
is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each
Interest Payment Date, provided that interest accruing pursuant
to paragraph (c) of this subsection shall be payable from time to
time on demand.
2.10 Computation of Interest and Fees. (a)
Commitment fees and, whenever it is calculated on the basis of
the ABR, interest shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed;
and, otherwise, interest shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrowers and the
Lenders of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the
ABR, the Eurocurrency Reserve Requirements, the C/D Assessment
Rate or the C/D Reserve Percentage shall become effective as of
the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable
notify the Borrowers and the Lenders of the effective date and
the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Borrowers and the Lenders
in the absence of manifest error.
2.11 Inability to Determine Interest Rate. If prior
to the first day of any Interest Period:
(a) the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon
the Borrowers) that, by reason of circumstances affecting
the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest
Period, or
(b) the Administrative Agent shall have received
notice from the Required Lenders that the Eurodollar Rate
determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest
Period,
then the Administrative Agent shall give telecopy or telephonic
notice thereof to the Borrowers and the Lenders as soon as
practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that
were to have been converted on the first day of such Interest
Period to Eurodollar Loans shall be converted to or continued as
ABR Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to ABR
Loans. Until such notice has been withdrawn by the Agent, no
further Eurodollar Loans shall be made or continued as such, nor
shall the Borrowers have the right to convert Loans to Eurodollar
Loans.
2.12 Pro Rata Treatment and Payments. (a) Each
borrowing by the Borrowers from the Lenders hereunder, each
payment by the Borrowers on account of any commitment fee
hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment
Percentages of the Lenders. Each payment (including each
prepayment) by the Borrowers on account of principal of and
interest on the Loans shall be made pro rata according to the
respective outstanding principal amounts of the Loans then held
by the Lenders. All payments (including prepayments) to be made
by the Borrowers hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 Noon, New York City
time, on the due date thereof to the Administrative Agent, for
the account of the Lenders, at the Administrative Agent's office
specified in subsection 9.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a
day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then
applicable rate during such extension. If, and to the extent
that, on any Business Day the Administrative Agent receives any
payment hereunder or under the other Loan Documents (including
any such payment representing a realization upon the Collateral),
and such payment is not sufficient to pay in full all principal,
interest and fees then due and payable hereunder, the
Administrative Agent shall apply such payment ratably to all such
amounts then due and payable.
(b) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such
Lender will not make the amount that would constitute its
Commitment Percentage of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrowers a corresponding
amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to the
daily average Federal Funds Effective Rate for the period until
such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under
this subsection shall be conclusive in the absence of manifest
error. If such Lender's Commitment Percentage of such borrowing
is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder, on demand, from the Borrowers (on a joint
and several basis).
2.13 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as
contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert ABR Loans to Eurodollar Loans shall forthwith be
cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR
Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period
as required by law. If any such conversion of a Eurodollar Loan
occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrowers shall be
jointly and severally obligated to pay to such Lender such
amounts, if any, as may be required pursuant to subsection 2.16.
2.14 Requirements of Law. (a) If the adoption of or
any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request
or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any
Eurodollar Loan made by it, or change the basis of taxation
of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 2.15 and changes in
the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not otherwise
included in the determination of the Eurodollar Rate
hereunder; or
(iii shall impose on such Lender any other condition
with respect to any Eurodollar Loan;
and the result of any of the foregoing is to increase the cost to
such Lender, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining Eurodollar
Loans or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrowers shall be jointly
and severally obligated to pay promptly such Lender such
additional amount or amounts as will compensate such Lender for
such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding
capital adequacy or in the interpretation or application thereof
or compliance by such Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the
effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations
hereunder (including in respect of its Commitments and/or any
Loans made by it), to a level below that which such Lender or
such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by
an amount deemed by such Lender to be material, then from time to
time, the Borrowers shall be jointly and severally obligated to
pay promptly to such Lender such additional amount or amounts as
will compensate such Lender for such reduction.
(c) If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall promptly
notify the Borrowers (with a copy to the Administrative Agent) of
the event by reason of which it has become so entitled. A
certificate as to any additional amounts payable pursuant to this
subsection submitted by such Lender to the Borrowers (with a copy
to the Administrative Agent) shall be conclusive in the absence
of manifest error. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
2.15 Taxes. (a) All payments made by the Borrowers
under this Agreement and any Notes shall be made free and clear
of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority, excluding net income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on
the Administrative Agent or any Lender as a result of a present
or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection
arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any
Note). If any such non-excluded taxes, levies, imposts, duties,
charges, fees deductions or withholdings ("Non-Excluded Taxes")
are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-
Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrowers shall not be
required to increase any such amounts payable to any Lender that
is not organized under the laws of the United States of America
or a state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrowers, as promptly as
possible thereafter the Borrowers shall send to the
Administrative Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original
official receipt received by the Borrowers showing payment
thereof. If the Borrowers fail to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to
the Administrative Agent the required receipts or other required
documentary evidence, the Borrowers shall be jointly and
severally obligated to indemnify the Administrative Agent and the
Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this subsection
shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the
laws of the United States of America or a state thereof shall:
(i) deliver to the Borrowers and the Administrative
Agent (A) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal
Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
(ii) deliver to the Borrowers and the Administrative
Agent two further copies of any such form or certification
on or before the date that any such form or certification
expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously
delivered by it to the Borrowers; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Borrowers or the Administrative Agent;
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 all such forms inapplicable or which would prevent
such Lender from duly completing and delivering any such form
with respect to it and such Lender so advises the Borrowers and
the Administrative Agent. Such Lender shall certify (i) in the
case of a Form 1001 or 4224, that it is entitled to receive
payments under this Agreement without deduction or withholding of
any United States federal income taxes and (ii) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a
Lender or a Participant pursuant to subsection 9.6 shall, upon
the effectiveness of the related transfer, be required to provide
all of the forms and statements required pursuant to this
subsection, provided that in the case of a Participant such
Participant shall furnish all such required forms and statements
to the Lender from which the related participation shall have
been purchased.
2.16 Indemnity. The Borrowers jointly and severally
agree to indemnify each Lender and to hold each Lender harmless
from any loss or expense which such Lender may sustain or incur
as a consequence of (a) default by the Borrowers in making a
borrowing of, conversion into or continuation of Eurodollar Loans
after the Borrowers have given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by
the Borrowers in making any prepayment after the Borrowers have
given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans
on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest which
would have accrued on the amount so prepaid, or not so borrowed,
converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Bank
on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollar market.
This covenant shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
2.17 Change of Lending Office. Each Lender agrees
that if it makes any demand for payment under subsection 2.14 or
2.15(a), or if any adoption or change of the type described in
subsection 2.13 shall occur with respect to it, it will use
reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not
be disadvantageous to it, as determined in its sole discretion)
to designate a different lending office if the making of such a
designation would reduce or obviate the need for any Borrower to
make payments under subsection 2.14 or 2.15(a), or would
eliminate or reduce the effect of any adoption or change
described in subsection 2.13.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to
enter into this Agreement and to make the Loans, the Borrowers
hereby represent and warrant to the Administrative Agent and each
Lender that:
3.1 Financial Condition. The balance sheets of CVA,
Northeast and MV as at March 31, 1995 and the related statements
of income and of cash flows for the fiscal year ended on such
date, reported on by Deloitte & Touche (in the case of the
financial statements of CVA and Northeast), copies of which have
heretofore been furnished to each Lender, are complete and
correct and present fairly the financial condition of each such
Borrower as at such date, and the results of their respective
operations and their respective cash flows for the fiscal year
then ended. The unaudited combined balance sheet of CVA,
Northeast and MV and their Subsidiaries as at June 30, 1995 and
the related unaudited combined statements of income and of cash
flows for the three-month period ended on such date, and the
unaudited consolidated balance sheet of Plato and its
Subsidiaries as at June 30, 1995 and the related unaudited
consolidated statements of income and of cash flows for the
period of [ ,] 1995 to June 30, 1995, in each case
certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and
correct and present fairly (i) the combined financial condition
of CVA, Northeast and MV and their Subsidiaries as at such date,
and the combined results of their operations and their combined
cash flows for the three-month period then ended and (ii) the
consolidated financial condition of Plato and its Subsidiaries as
at such date, and the consolidated results of their operations
and their consolidated cash flows for the period of [ ,]
1995 to June 30, 1995, (in each case, subject to normal year-end
audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible
Officer, as the case may be, and as disclosed therein). Neither
any Borrower nor any of such Borrower's Subsidiaries had, at the
date of the most recent balance sheet referred to above, any
material Guarantee Obligation, contingent liability or liability
for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto.
During the period from March 31, 1995 to and including the date
hereof there has been no sale, transfer or other disposition by
any Borrower or any of such Borrower's Subsidiaries of any
material part of its business or property and no purchase or
other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the
combined financial condition of the Borrowers and their
Subsidiaries at March 31, 1995.
3.2 No Change. (a) Since June 30, 1995 there has
been no development or event which has had or could reasonably be
expected to have a Material Adverse Effect, and (b) during the
period from March 31, 1995 to and including the date hereof no
dividends or other distributions have been declared, paid or made
upon the Capital Stock of any Borrower nor has any of the Capital
Stock of any Borrower been redeemed, retired, purchased or
otherwise acquired for value by any Borrower or any of its
Subsidiaries.
3.3 Existence; Compliance with Law. Each Borrower (a)
is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the
corporate or partnership power and authority, and the legal
right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is
currently engaged and in which it proposes to be engaged after
the Closing Date, (c) is duly qualified as a foreign entity and
(if such Borrower is a corporation) in good standing under the
laws of each jurisdiction where its ownership, lease or operation
of property or the conduct of its business requires such
qualification and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable
Obligations. Each Borrower has the corporate or partnership
power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party and to borrow
hereunder and has taken all necessary corporate or partnership
action to authorize the borrowings on the terms and conditions of
this Agreement and any Notes and to authorize the execution,
delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity
or enforceability of the Loan Documents to which it is a party
other than the filing of financing statements in connection with
the perfection of Liens on the collateral. This Agreement has
been, and each other Loan Document to which it is a party will
be, duly executed and delivered on behalf of each Borrower. This
Agreement constitutes, and each other Loan Document to which it
is a party when executed and delivered will constitute, a legal,
valid and binding obligation of each Borrower enforceable against
such Borrower in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
3.5 No Legal Bar. The execution, delivery and
performance of the Loan Documents to which such Borrower is a
party, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or Contractual
Obligation of such Borrower or of any of each such Borrower's
Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation.
3.6 No Material Litigation. No litigation,
investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of any
Borrower, threatened by or against any Borrower or any of such
Borrower's Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or
thereby, or (b) which could reasonably be expected to have a
Material Adverse Effect.
3.7 No Default. Neither any Borrower nor any
Subsidiary of any Borrower is in default under or with respect to
any of its Contractual Obligations in any respect which could
reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each Borrower and
such Borrower's Subsidiaries has good record and marketable title
in fee simple to, or a valid leasehold interest in, all its real
property, and good title to, or a valid leasehold interest in,
all its other property, and none of such property is subject to
any Lien except as permitted by subsection 6.3.
3.9 Intellectual Property. Each Borrower and such
Borrower's Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, technology, know-how and
processes necessary for the conduct of its business as currently
conducted except for those the failure to own or license which
could not reasonably be expected to have a Material Adverse
Effect (the "Intellectual Property"). No claim has been asserted
and is pending by any Person challenging or questioning the use
of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does any
Borrower know of any valid basis for any such claim. The use of
such Intellectual Property by each Borrower and its Subsidiaries
does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
3.10 No Burdensome Restrictions. No Requirement of
Law or Contractual Obligation of any Borrower or any Subsidiary
of any Borrower could reasonably be expected to have a Material
Adverse Effect.
3.11 Taxes. Each Borrower and such Borrower's
Subsidiaries has filed or caused to be filed all tax returns
which, to the knowledge of such Borrower, are required to be
filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority (other than
any the amount or validity of which are currently being contested
in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the
books of such Borrower or its Subsidiaries, as the case may be);
no tax Lien has been filed, and, to the knowledge of any
Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
3.12 Federal Regulations. No part of the proceeds of
any Loans will be used for "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms
under Regulation G or Regulation U of the Board of Governors of
the Federal Reserve System as now and from time to time hereafter
in effect. If requested by any Lender or the Administrative
Agent, the Borrowers will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity
with the requirements of FR Form G-1 or FR Form U-1 referred to
in said Regulation G or Regulation U, as the case may be.
3.13 ERISA. Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred
during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan,
and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code. No termination of a
Single Employer Plan has occurred, and no Lien in favor of the
PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on
which this representation is made or deemed made, exceed the
value of the assets of such Plan allocable to such accrued
benefits. Neither any Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither any Borrower nor any Commonly
Controlled Entity would become subject to any liability under
ERISA if any Borrower or any such Commonly Controlled Entity were
to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer
Plan is in Reorganization or Insolvent.
3.14 Investment Company Act; Other Regulations. No
Borrower is an "investment company", or a company "controlled" by
an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. No Borrower is subject to
regulation under any Federal or State statute or regulation
(other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
3.15 Subsidiaries. Schedule 3.15 sets forth a
complete and correct list of all the Subsidiaries of each
Borrower at the date hereof and of all the issued and outstanding
Capital Stock and the owners thereof, of each Borrower on the
date hereof.
3.16 General Partner's Existence; Compliance with Law.
Each General Partner (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, (b) has the power and authority and the legal
right to own and operate its property, to lease the property it
operates and to conduct the business in which it is currently
engaged and in which it proposes to be engaged after the Closing
Date, (c) is duly qualified as a foreign corporation or business,
as the case may be, and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property
or the conduct of its business requires such qualification and
(d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
3.17 General Partner's Power; Authorization;
Enforceable Obligations. Each General Partner has the power and
authority and the legal right to make, deliver and perform on
behalf of MV or Robinson, as the case may be, and thereby legally
bind MV or Robinson, as the case may be, to perform, (a) this
Agreement, and has taken all necessary action to authorize the
borrowings by MV or Robinson, as the case may be, on the terms
and conditions of this Agreement and any Notes and (b) the Loan
Documents to which MV or Robinson, as the case may be, is a party
and has taken all necessary action to authorize the execution and
delivery on behalf of MV or Robinson, as the case may be, of, and
thereby legally bind MV or Robinson, as the case may be, to
perform, this Agreement and any Notes. This Agreement has been,
and each of the other Loan Documents will be, duly executed and
delivered by the General Partner on behalf of MV or Robinson, as
the case may be.
3.18 Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of any
Loan Party or any of its Affiliates to the Administrative Agent
or any Lender for purposes of, or in connection with, this
Agreement or any transaction contemplated hereby is, and all
other such factual information hereafter furnished by or on
behalf of any Loan Party or any of its Affiliates to the
Administrative Agent or any Lender will be, true and accurate in
all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any
material fact necessary to make such information not misleading
at such time.
3.19 Purpose of Loans. The proceeds of the Loans
shall be used by the Borrowers as follows: (a) up to $36,000,000
will be borrowed by Northeast on the initial Borrowing Date and
will be used to repay all of its then outstanding funded
Indebtedness; (b) proceeds of subsequent borrowings will be used:
(i) to finance the Acquisitions in an amount not to exceed
$45,000,000; (ii) to make distributions and/or advances the
proceeds of which will be used by Chelsea to pay principal and
interest on its then outstanding indebtedness in an amount not to
exceed $20,000,000, and (iii) by MV in an amount not to exceed
$5,200,000 to repay all of its then outstanding funded
Indebtedness and (iv) by Plato in an amount not to exceed
$29,800,000; and (c) proceeds of other subsequent borrowings will
be used for working capital and general corporate purposes. In
addition, at such time, if any, as CVA shall become a Borrower as
provided in subsection 9.16 hereof, CVA may borrow an amount not
to exceed $34,000,000 to repay all its then outstanding funded
Indebtedness.
3.20 Environmental Matters. Except as set forth on
Schedule 3.20:
(a) The facilities and properties owned, leased or
operated by each Borrower or any of each such Borrower's
Subsidiaries (the "Properties") do not contain, and have not
previously contained, any Materials of Environmental Concern
in amounts or concentrations which (i) constitute or
constituted a violation of, or (ii) could reasonably be
expected to give rise to liability under, any Environmental
Law.
(b) To the best knowledge of each Borrower, the
Properties and all operations at the Properties are in
compliance, and have in the last five years been in
compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under
or about the Properties or violation of any Environmental
Law with respect to the Properties or the business operated
by the Borrowers or any of their Subsidiaries (the
"Business") which could materially interfere with the
continued operation of the Properties or materially impair
the fair saleable value thereof.
(c) To the best knowledge of each Borrower, neither
such Borrower nor any of such Borrower's Subsidiaries 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 the Properties or the Business, nor
does such Borrower have knowledge or reason to believe that
any such notice will be received or is being threatened
except insofar as such notice or threatened notice, or any
aggregation thereof, does not involve a matter or matters
that could reasonably be expected to have a Material Adverse
Effect.
(d) To the best knowledge of each Borrower, Materials
of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a
manner or to a location which could reasonably be expected
to give rise to liability under, any Environmental Law, nor
have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any
applicable Environmental Law, except insofar as any such
violation or liability referred to in this paragraph, or any
aggregation thereof, could not reasonably be expected to
have a Material Adverse Effect.
(e) To the best knowledge of each Borrower, no
judicial proceeding or governmental or administrative action
is pending or, to the knowledge of such Borrower,
threatened, under any Environmental Law to which such
Borrower or any Subsidiary is or will be named as a party
with respect to the Properties or the Business, 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 the Properties or the
Business except insofar as such proceeding, action, decree,
order or other requirement, or any aggregation thereof,
could not reasonably be expected to have a Material Adverse
Effect.
(f) To the best knowledge of each Borrower, there has
been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising
from or related to the operations of such Borrower or any of
its Subsidiaries in connection with the Properties or
otherwise in connection with the Business, in violation of
or in amounts or in a manner that could reasonably give rise
to liability under Environmental Laws except insofar as any
such violation or liability referred to in this paragraph,
or any aggregation thereof, could not reasonably be expected
to have a Material Adverse Effect.
3.21 Solvency. As of the Closing Date each Loan Party
is Solvent, and on each date on which a Loan is made (after
giving effect to the transactions being consummated on such day)
will be Solvent.
3.22 Franchises; FCC and Copyright Matters.
(a) Schedule 3.22 sets forth all of the Systems owned or
operated, and all of the Franchises held by, the Borrowers and
their Subsidiaries and correctly sets forth the issuer of and the
termination date, if any, of each such Franchise, provided,
however, that if any Borrower or any of its Subsidiaries acquires
any System or Franchise after the Closing Date, such Borrower
shall provide a notice to each Lender containing information of
the type contained in Schedule 3.22 with respect to each such
System or Franchise, and such notice shall be deemed incorporated
in such Schedule, and provided, further, that nothing contained
in this subsection shall be deemed to constitute consent to an
Investment otherwise prohibited by the terms of this Agreement.
(b) All of the following are true, correct and
complete statements with respect to each Borrower and each of its
Subsidiaries, except for facts or circumstances which could not,
individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect:
(i Each Franchise listed in Schedule 3.22 was duly
and validly issued by the issuer thereof pursuant to
procedures which complied with all requirements of
applicable law.
(ii Each Borrower and each of its Subsidiaries has
the right to use all Franchises and other licenses
(including, without limitation, all cable television or
broadcast licenses), copyrights, permits, authorizations and
other rights, including, without limitation, agreements with
public utilities and microwave transmission companies, Pole
Rental Leases and utility easements, as are necessary for
the conduct of the business of such Borrower or Subsidiary,
as the case may be.
(iii Each such Franchise or other license or right
currently held by any Borrower or any of its Subsidiaries is
in full force and effect, and such Borrower or Subsidiary,
as the case may be, is substantially in compliance with the
terms thereof with no known conflict with the valid rights
of others.
(iv No event has occurred which permits, or after
notice or lapse of time or both would permit, the revocation
or termination of any such Franchise or other license or
right.
(v Each Borrower and each of its Subsidiaries have
duly filed, in a timely manner, all cable television
registration statements and other filings which are required
to be filed by such Borrower or Subsidiary, as the case may
be, under the Communications Act or the Cable Act and is in
compliance with the Communications Act and the Cable Act,
including, without limitation, the rules and regulations of
the FCC relating to the carriage of television signals.
(vi Each Borrower and each of its Subsidiaries have
submitted all requisite notices under the Copyright Act and
the rules and regulations of the U.S. Copyright Office for
the carriage of all broadcast stations as currently carried.
(vii Each Borrower and each of its Subsidiaries have
duly filed, in a timely manner, with the Copyright Office
all required documents, instruments and statements of
account (other than any such documents or instruments with
respect to which counsel for such Borrower shall have
advised such Borrower that the failure to make a filing in a
timely manner is unlikely to result in the U.S. Copyright
Office or any other Person imposing sanctions upon or
bringing legal proceedings against such Borrower or
Subsidiary, as the case may be), has remitted payments of
all required royalty fees and has obtained the compulsory
license provided for in Section 111 of the Copyright Act for
the carriage of broadcast signals, which license is
currently valid and in full force and effect.
(viii No Borrower or any Subsidiary is liable to any
Person for copyright infringement under the Copyright Act as
a result of its business operations.
(ix Except as set forth on Schedule 3.22, no
consents or authorizations of, filings with, notices to or
other acts by or in respect of, any Governmental Authority
are required in order to operate the Systems owned or
operated by the Borrowers and their Subsidiaries or to
permit any Borrower or any Subsidiary to carry on the
business of such Systems as presently conducted.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of
each Lender to make the initial Loan requested to be made by it
is subject to the satisfaction, immediately prior to or
concurrently with the making of such Loan on the Closing Date, of
the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall
have received (i) this Agreement, executed and delivered on
behalf of each Borrower by a Responsible Officer of each
Borrower, with a counterpart for each Lender, and (ii) each
of the Pledge Agreements, each executed and delivered on
behalf of each Loan Party and each other Person which is
named as a pledgor therein by a Responsible Officer of such
Loan Party or such pledgor or, in any case where such Loan
Party is a partnership, of the General Partner of such Loan
Party, with a counterpart for the Administrative Agent and a
counterpart or a conformed copy for each Lender; provided
that no Pledge Agreement shall be required to be executed
and delivered by any member of the Gans Family until the
date which is 30 days after the date hereof, and the
Borrowers covenant and agree that they will cause such
Pledge Agreement to be delivered on or before such 30th day;
and provided, further, that no Partnership Pledge Agreement
shall be required to be delivered with respect to the
limited partnership interests in MV held by Robert E. Tudek
or Everet I. Mundy.
(b) Refinancing. The Administrative Agent shall have
received evidence satisfactory to it that all of the
Indebtedness of Borrowers described on Schedule 4.1(b) in an
aggregate amount (i) not exceeding $34,000,000 with respect
to CVA (if CVA is a Borrower) and (ii) not exceeding
$36,000,000 with respect to Northeast shall be prepaid
contemporaneously with the proceeds of loans made to the
Borrowers (the "Refinancing"). The Administrative Agent
shall have received, with a copy for each Lender, evidence
reasonably satisfactory to the Administrative Agent that the
agreements relating to the CVA Indebtedness referred to in
clause (i) (if CVA is a Borrower) and the Amended and
Restated Loan and Security Agreement, dated as of April 1,
1992, between Northeast and Core States Bank, N.A., as Agent
shall be terminated concurrently, together with executed
copies of all payout or assignment letters, lien releases or
assignments, termination or assignment statements,
satisfactions, agreements, certificates and other documents
entered into in connection with the Refinancing, all of
which payout letters, lien releases or assignments,
termination or assignment statements, satisfactions,
agreements, certificates and other documents shall be in
form and substance reasonably satisfactory to the
Administrative Agent.
(c) Related Agreements. The Administrative Agent
shall have received (i) certified copies of each Management
Agreement and the Management Subordination Agreements duly
executed and delivered by each party thereto, with a
counterpart for each Lender in the case of the Management
Subordination Agreements and (ii) the Affiliate
Subordination Agreement.
(d) Borrowing Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a
certificate of each Borrower, dated the Closing Date,
substantially in the form of Exhibit E, with appropriate
insertions and attachments, reasonably satisfactory in form
and substance to the Administrative Agent, executed on
behalf of each Borrower by a Responsible Officer of each
such Borrower.
(e) Corporate Proceedings. (i) The Administrative
Agent shall have received, with a counterpart for each
Lender, a copy of the resolutions, in form and substance
reasonably satisfactory to the Administrative Agent, of the
Board of Directors of the General Partners authorizing (A)
the execution, delivery and performance of each Loan
Document to which MV and Robinson are parties and (B) the
borrowings contemplated hereunder, certified by the
Secretary or an Assistant Secretary of the General Partners
as of the Closing Date, which certificate shall be in form
and substance reasonably satisfactory to the Administrative
Agent and shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded, and
(ii) the Administrative Agent shall have received, with a
counterpart for each Lender, a copy of the resolutions, in
form and substance satisfactory to the Administrative Agent,
of the Board of Directors of each Borrower (other than MV
and Robinson) authorizing (A) the execution, delivery and
performance of this Agreement and the other Loan Documents
to which it is a party and (B) the borrowings contemplated
hereunder, certified by the Secretary or an Assistant
Secretary of such Borrower as of the Closing Date, which
certificate shall be in form and substance satisfactory to
the Administrative Agent and shall state that the
resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(f) Incumbency Certificates. (i) The Administrative
Agent shall have received, with a counterpart for each
Lender, a certificate of each General Partner, dated the
Closing Date, as to the incumbency and signature of the
officers of such General Partner executing any Loan Document
on behalf of MV and Robinson, respectively, which
certificate shall be in form and substance satisfactory to
the Administrative Agent, executed by the President or any
Vice President and the Secretary or any Assistant Secretary
of such General Partner, and (ii) the Administrative Agent
shall have received, with a counterpart for each Lender, a
certificate of each Borrower (other than MV and Robinson),
dated the Closing Date, as to the incumbency and signature
of the officers of such Borrower executing any Loan Document
satisfactory in form and substance to the Agent, executed by
the President or any Vice President and the Secretary or any
Assistant Secretary of such Borrower.
(g) Partnership Proceedings of the Loan Parties. The
Administrative Agent shall have received, with a counterpart
for each Lender, a copy of any consent or approval of the
partners required under the partnership agreements of MV and
Robinson in connection with and performance of each Loan
Document to which each is a party, certified on behalf of MV
and Robinson by a Responsible Officer of the respective
General Partners, which certificate shall be in form and
substance reasonably satisfactory to the Administrative
Agent and shall state that the consent or approval thereby
certified have not been amended, modified, revoked or
rescinded.
(h) Corporate and Partnership Documents of Loan
Parties. The Administrative Agent shall have received, with
a counterpart for each Lender, (i) true and complete copies
of the certificate of incorporation and by-laws of the
General Partners and of each Borrower other than MV and
Robinson, certified as of the Closing Date as complete and
correct copies thereof by the Secretary or an Assistant
Secretary of such General Partner or Borrower, as the case
may be, and (ii) true and complete copies of the
certificates of partnership and Partnership Agreements of MV
and Robinson, respectively, and of the certificate of
incorporation and by-laws of each General Partner and each
Borrower (other than MV and Robinson) (including any
schedules, exhibits and annexes thereto and any amendments,
supplements or modifications thereof on or prior to the
Closing Date), certified on behalf of such Borrower or such
General Partner, as the case may be, as of the Closing Date
as complete and correct copies thereof by a Responsible
Officer of such General Partner or such Borrower, as the
case may be, and that the same have not been amended or
modified.
(i) Consents, Licenses and Approvals. The
Administrative Agent shall have received, with a counterpart
for each Lender, a certificate of each Borrower executed and
delivered on behalf of each Borrower by a Responsible
Officer (i) attaching copies of all consents, authorizations
and filings referred to in subsection 3.4, if any, and (ii)
stating that such consents, licenses and filings are in full
force and effect, and each such consent, authorization and
filing shall be in form and substance reasonably
satisfactory to the Administrative Agent.
(j) Fees. The Administrative Agent shall have
received the fees to be received on the Closing Date
referred to in the fee letter dated October 23, 1995,
between ACC and Chemical.
(k) Legal Opinions. The Administrative Agent shall
have received, with a counterpart for each Lender, the
following executed legal opinions:
(i the executed legal opinion of Buchanan,
Ingersoll Professional Corporation, counsel to the
Borrowers and the other Loan Parties, substantially in
the form of Exhibit F-1;
(ii the executed legal opinion of Colin Higgin,
Esq., deputy general counsel of the Borrowers,
substantially in the form of Exhibit F-2; and
(iii the executed legal opinion of Fleischman &
Walsh, special counsel to the Borrowers and the other
Loan Parties with respect to FCC matters, substantially
in the form of Exhibit F-3.
Each such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement
as the Administrative Agent may reasonably require.
(l) Transaction Statements; Pledged Stock; Stock
Powers; Acknowledgment and Consents. The Administrative
Agent shall have received (i) executed copies of the
Transaction Statements and Notices, in the forms attached to
the Partnership Pledge Agreements as Exhibit A and Exhibit
B, respectively, requested by the Administrative Agent with
respect to each such Partnership Pledge Agreement, (ii) the
certificates representing the shares pledged pursuant to the
Stock Pledge Agreements, together with an undated stock
power for each such certificate executed in blank by a duly
authorized officer of the relevant pledgors and (iii)
Acknowledgments and Consents in the form attached to the
Pledge Agreements, executed by a duly authorized officer of
each Loan Party whose Capital Stock is pledged pursuant to
each such Pledge Agreement.
4.2 Conditions to Each Loan. The agreement of each
Lender to make any Loan requested to be made by it on any date
(including, without limitation, its initial Loan) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Loan Parties in
or pursuant to the Loan Documents shall be true and correct
in all material respects on and as of such date as if made
on and as of such date.
(b) No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving
effect to the Loans requested to be made on such date.
(c) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by
this Agreement and the other Loan Documents shall be
satisfactory in form and substance to the Administrative
Agent, and the Administrative Agent shall have received such
other documents and legal opinions in respect of any aspect
or consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
Each borrowing by the Borrowers hereunder shall constitute a
representation and warranty by the Borrowers as of the date
thereof that the conditions contained in this subsection have
been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Each Borrower hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender
or the Administrative Agent hereunder or under any other Loan
Document, such Borrower shall and (except in the case of delivery
of financial information, reports and notices) shall cause each
of its Subsidiaries to:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within
120 days after the end of each fiscal year of the Borrowers,
a copy of the combined balance sheet of the Borrowers and
their Subsidiaries as at the end of such year and the
related combined statements of income and retained earnings
and of cash flows for such year, setting forth in each case
in comparative form the figures for the previous year,
reported on without a qualification arising out of the scope
of the audit by Deloitte & Touche or other independent
certified public accountants of nationally recognized
standing and with respect to which Deloitte & Touche or such
other accountants have not issued an adverse opinion or a
disclaimer of opinion; and
(b) as soon as available, but in any event not later
than 90 days after the end of each of the first three
quarterly periods of each fiscal year of the Borrowers, the
unaudited combined balance sheet of the Borrowers and their
Subsidiaries as at the end of such quarter and the related
unaudited combined statements of income and retained
earnings and of cash flows of the Borrowers and their
Subsidiaries for such quarter and the portion of the fiscal
year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in
all material respects (subject to normal year-end audit
adjustments);
all such financial statements shall be complete and correct in
all material respects and shall be prepared in reasonable detail
and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and
disclosed therein).
5.2 Certificates; Other Information. Furnish to each
Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a), a certificate
of the independent certified public accountants reporting on
such financial statements stating that in making the
examinations necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and (b), a
Compliance Certificate of such Borrower executed and
delivered on behalf of such Borrower by a Responsible
Officer of such Borrower (i) stating that, to the best of
such Officer's knowledge, such Borrower during such period
has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents to be observed,
performed or satisfied by it, and that such Officer has
obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) setting
forth in reasonable detail the calculations required to
determine compliance with subsections 6.1, 6.6(a), 6.7 and
6.16;
(c) as soon as available and in any event within sixty
days after the end of each calendar month, an operating
report in such form as is agreed between the Borrowers and
the Administrative Agent, including the number of Basic
Subscribers, Pay Subscribers and Homes Passed for the
Borrowers and their Subsidiaries for each principal
geographic area of service as of the first and last day of
such month;
(d) within five days after the same are sent, copies
of all financial statements and reports which such Borrower
or the Manager sends to its partners or stockholders, as the
case may be, and within five days after the same are filed,
copies of all financial statements and reports which such
Borrower or the Manager may make to, or file with, the
Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(e) within thirty days after the end of each fiscal
year of such Borrower, evidence in form and substance
satisfactory to the Administrative Agent that all the
requirements of subsection 5.5 have been satisfied;
(f) promptly, such additional financial and other
information as any Lender may from time to time reasonably
request; and
(g) within 5 days prior to Closing, the information
required by subsections 5.2(c) and 5.2(d) hereof for or
during the calendar months of July 1995 and August 1995.
5.3 Payment of Obligations. Pay, discharge or
otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its obligations (including
obligations pursuant to the fee letter dated October _____, 1995,
between ACC and Chemical) of whatever nature, except where the
amount or validity thereof is currently being contested in good
faith by appropriate proceedings and reserves in conformity with
GAAP with respect thereto have been provided on the books of such
Borrower or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now
conducted by it and preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to
maintain all rights, privileges, Franchises and other licenses
and rights necessary or desirable in the normal conduct of its
business except as otherwise permitted pursuant to subsection
6.5; comply with all Contractual Obligations and Requirements of
Law except to the extent that failure to comply therewith could
not, in the aggregate, be reasonably expected to have a Material
Adverse Effect.
5.5 Maintenance of Property; Insurance. Keep all
property useful and necessary in its business in good working
order and condition; maintain with financially sound and
reputable insurance companies insurance on all its property in at
least such amounts and against at least such risks (but including
in any event public liability, product liability and business
interruption) as are usually insured against in the same general
area by companies engaged in the same or a similar business; and
furnish to each Lender, upon written request, full information as
to the insurance carried.
5.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account in which
full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and
transactions in relation to its business and activities; and
permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations,
properties and financial and other condition of such Borrower and
its Subsidiaries with officers and employees of the Manager and
such Borrower General Partner and such Borrower's Subsidiaries
and with its independent certified public accountants.
5.7 Notices. Promptly (but in no event later than
five days after obtaining knowledge thereof) give notice to the
Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of such Borrower or any of its
Subsidiaries or (ii) litigation, investigation or proceeding
which may exist at any time between such Borrower or any of
its Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material
Adverse Effect;
(c) any litigation or proceeding affecting such
Borrower or any of its Subsidiaries in which the amount
involved is $2,500,000 or more and not covered by insurance
or in which injunctive or similar relief is sought;
(d) the following events, as soon as possible and in
any event within 30 days after such Borrower knows or has
reason to know thereof: (i) the occurrence or expected
occurrence of any Reportable Event with respect to any Plan,
a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action
by the PBGC or such Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or
Insolvency of, any Plan; and
(e) any development or event which could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a
statement of such Borrower executed and delivered on behalf of
such Borrower by a Responsible Officer of such Borrower setting
forth details of the occurrence referred to therein and stating
what action such Borrower proposes to take with respect thereto.
5.8 Environmental Laws. (a) Comply with, and ensure
compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply in all
material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects 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 in all
material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws.
SECTION 6. NEGATIVE COVENANTS
Each Borrower hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender
or the Administrative Agent hereunder or under any other Loan
Document, such Borrower shall not, and (except with respect to
subsection 6.1) shall not permit any of its Subsidiaries to,
directly or indirectly:
6.1 Financial Condition Covenants.
(a) Total Leverage Ratio. Permit at any time the
ratio of (i) Total Funded Debt then outstanding to (ii) Annual-
ized Operating Cash Flow for the fiscal quarter most recently
ended prior to such time for which the Lenders shall have
received financial statements and a Compliance Certificate
pursuant to subsections 5.1 and 5.2(b) to be greater than
6.25:1.00.
(b) Interest Coverage. Permit for any fiscal quarter
the ratio of (i) Operating Cash Flow for such quarter to (ii)
Interest Expense for such quarter to be less than 1.60:1.00.
6.2 Limitation on Indebtedness. Create, incur, assume
or suffer to exist any Indebtedness, except:
(a) Indebtedness of such Borrower under this
Agreement;
(b) Indebtedness of such Borrower to any Subsidiary
and of any Subsidiary to such Borrower or any other
Subsidiary;
(c) Indebtedness outstanding on the date hereof and
listed on Schedule 6.2(c) and any refinancings, refundings,
renewals or extensions thereof; and
(d) deferred Management Fees, provided that the
Management Subordination Agreements are in full force and
effect and no Management Subordination Agreement is being
contested by any Person.
6.3 Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained
on the books of such Borrowers or their Subsidiaries, as the
case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in
the ordinary course of business which are not overdue for a
period of more than 60 days or which are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social
security legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from
the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of such
Borrower or such Subsidiary;
(f) Liens in existence on the date hereof listed on
Schedule 6.3(f) securing Indebtedness permitted by
subsection 6.2(c), provided that no such Lien is spread to
cover any additional property after the Closing Date and
that the amount of Indebtedness secured thereby is not
increased;
(g) Liens under Pole Rental Leases on cables and other
property affixed to transmission poles; and
(h) restrictions on the transfer of assets imposed by
the Franchises in respect of the Systems owned or operated
by such Borrower or any of its Subsidiaries or by the
Communications Act.
6.4 Limitation on Guarantee Obligations. Create,
incur, assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date
hereof and listed on Schedule 6.4(a); and
(b) guarantees made in the ordinary course of its
business by such Borrower of obligations of any of its
Subsidiaries, which obligations are otherwise permitted
under this Agreement.
6.5 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease, assign, transfer or otherwise dispose of,
all or substantially all of its property, business or assets, or
make any material change in its present method of conducting
business, except:
(a) any Subsidiary of such Borrower may be merged or
consolidated with or into such Borrower (provided that such
Borrower shall be the continuing or surviving corporation)
or with or into any one or more wholly owned Subsidiaries of
such Borrower (provided, that the wholly owned Subsidiary or
Subsidiaries shall be the continuing or surviving
corporation); and
(b) any wholly owned Subsidiary may sell, lease,
transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to such Borrower
or any other wholly owned Subsidiary of such Borrower.
6.6 Limitation on Sale of Assets. Convey, sell,
lease, assign, transfer or otherwise dispose of any of its
property, business or assets (including, without limitation,
receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person
other than such Borrower or any wholly owned Subsidiary, except:
(a) Asset Sales, provided that the aggregate of the
System Cash Flow Percentages of all Systems sold by the
Borrowers and any of their Subsidiaries subsequent to the
Closing Date, after giving effect to any such Asset Sale or
Asset Sales, shall not exceed 15%, and provided, further,
that the Net Proceeds of any such Asset Sale are applied to
the reduction of the Commitments pursuant to subsection
2.4(a) and, to the extent required, to the prepayment of the
Loans pursuant to subsection 2.6(b);
(b) the sale or other disposition of obsolete or worn
out property in the ordinary course of business;
(c) the sale of inventory in the ordinary course of
business; and
(d) as permitted by subsection 6.5(b).
As used in this subsection, the term "System Cash Flow
Percentage" shall mean, with respect to any Asset Sale, the
percentage of Operating Cash Flow contributed by the System which
is the subject thereof for the most recent period of four
consecutive fiscal quarters ended prior to the date of such Asset
Sale.
6.7 Limitation on Restricted Payments. Declare or pay
any dividend on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any
shares of any class of Capital Stock of such Borrower or any of
its Subsidiaries or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of such
Borrower or any Subsidiary or make any payment on, or
distribution used for purposes of reducing, Indebtedness owed to
any Affiliate (such declarations, payments, setting apart,
purchases, redemptions, defeasances, retirements, acquisitions
and distributions being herein called "Restricted Payments"),
except that:
(a) the Borrowers may on or after the Closing Date
make Restricted Payments to Chelsea in an aggregate amount
not to exceed $20,000,000 to enable Chelsea to make payments
in respect of its currently outstanding Indebtedness;
(b) any Subsidiary may make Restricted Payments to any
Borrower, provided that no other Person receives or is
entitled to receive all or any portion of such Restricted
Payment or any other amount in connection with or a result
of such Restricted Payment; and
(c) the Borrowers may make Restricted Payments in an
aggregate amount, when added to the aggregate amount of
Management Fees paid subsequent to the date hereof, do not
exceed the aggregate amount of Capital Contributions made to
the Borrowers subsequent to the date hereof.
6.8 Limitation on Investments, Loans and Advances.
Make any Investment in any Person, including, without limitation,
any Restricted Investment, except:
(a) the Acquisitions; provided that the aggregate
purchase price of the Acquisitions shall not exceed
$45,000,000 and the terms and conditions of the Acquisitions
shall be reasonably satisfactory to the Administrative Agent
and the Lenders;
(b) other acquisitions subsequent to the Closing Date
the aggregate amount paid in connection therewith (including
costs and expenses) does not exceed $20,000,000, provided
that (i) the Borrowers shall, prior to effecting such
acquisition, deliver to each Lender a certificate of the
Borrowers, executed and delivered on behalf of the Borrowers
by a Responsible Officer, demonstrating to the satisfaction
of the Administrative Agent pro forma compliance with the
financial covenants set forth in subsection 6.1 after giving
effect to such acquisition, (ii) the Borrowers shall have
furnished the Administrative Agent with copies of such
documents with respect to such acquisition as the
Administrative Agent may reasonably request, and (iii) after
giving effect to such acquisition, the Borrowers are in
compliance with subsection 6.14;
(c) extensions of trade credit in the ordinary course
of business;
(d) investments in Cash Equivalents; and
(e) investments by such Borrower in its Subsidiaries
and investments by such Subsidiaries in such Borrower and in
other Subsidiaries of such Borrower.
6.9 Limitation on Modifications of Management
Subordination Agreements. Amend, modify or change, or consent or
agree to any amendment, modification or change to any of the
terms of the Management Subordination Agreements.
6.10 Limitation on Transactions with Affiliates.
Enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of
any service, with any Affiliate unless such transaction is
(a) otherwise permitted under this Agreement, (b) in the ordinary
course of such Borrower's or such Subsidiary's business and
(c) upon fair and reasonable terms no less favorable to such
Borrower or such Subsidiary, as the case may be, than it would
obtain in a comparable arm's length transaction with a Person
which is not an Affiliate (it being agreed that the Management
Agreements and any Management Fees accrued or paid pursuant to
subsection 6.16 shall not violate this subsection).
6.11 Limitation on Sales and Leasebacks. Enter into
any arrangement with any Person providing for the leasing by such
Borrower or any Subsidiary of real or personal property which has
been or is to be sold or transferred by such Borrower or such
Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of
such property or rental obligations of such Borrower or such
Subsidiary.
6.12 Limitation on Changes in Fiscal Year. Permit the
fiscal year of such Borrower or any Subsidiary to end on a day
other than March 31.
6.13 Limitation on Negative Pledge Clauses. Enter
into with any Person any agreement, other than (a) this Agreement
and (b) any industrial revenue bonds, purchase money mortgages or
Financing Leases permitted by this Agreement (in which cases, any
prohibition or limitation shall only be effective against the
assets financed thereby), which prohibits or limits the ability
of such Borrower or any of its Subsidiaries to create, incur,
assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired.
6.14 Limitation on Lines of Business; Activities of
Subsidiaries. Enter into any business, either directly or
through any Subsidiary, except for those businesses in which such
Borrower and its Subsidiaries are engaged on the date of this
Agreement or are contemplated by this Agreement to engage in
after the Closing Date, or which are directly related thereto,
and in which other Persons in the cable industry are engaged.
6.15 Limitation on Interest Rate Protection
Agreements. Enter into any Interest Rate Protection Agreements
unless (i) the aggregate notional amount of all such Interest
Rate Protection Agreements shall not exceed the Commitments and
(ii) such Interest Rate Protection Agreements are unsecured.
6.16 Limitation on Management Fees. Make any payment
on account of Management Fees, except that the Borrowers and/or
their Subsidiaries may (i) so long as no Default or Event of
Default then exists and is continuing or would result therefrom
and so long as such payment would not violate the Management
Subordination Agreements, pay Management Fees in arrears with
respect to any fiscal quarter up to a maximum aggregate amount
for the Borrowers and their Subsidiaries equal to 5% of the gross
revenues of the Borrowers and their consolidated Subsidiaries for
such fiscal quarter, provided that, prior to any such payment,
such Borrower shall have delivered the financial statements
required pursuant to subsection 5.1(a) or 5.1(b), as the case may
be, and 5.2(b) with respect to the fiscal quarter during which
such Management Fees were accrued and (ii) after the occurrence
and during the continuation of a Default or Event of Default
(such period, a "Default Period") and so long as such payment
would not violate the Management Subordination Agreements, pay
Management Fees during the Default Period with the net proceeds
of any Capital Contributions subsequent to the date hereof,
provided that, after giving effect to such payment, the Available
Capital Contributions shall be greater than or equal to zero.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) The Borrowers shall fail to pay any principal of
any Loan when due in accordance with the terms hereof; or
the Borrowers shall fail to pay any interest on any Loan, or
any other amount payable hereunder, within three Business
Days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made
by any Borrower or any other Loan Party in any other Loan
Document or which is contained in any certificate, document
or financial or other statement furnished by it at any time
under or in connection with this Agreement or any such other
Loan Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made;
or
(c) Any Borrower or any other Loan Party shall default
in the observance or performance of any agreement contained
in subsection 2.4(a) or Section 6 of this Agreement; or
(d) Any Borrower or any other Loan Party shall default
in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of
this Section), and such default shall continue unremedied
for a period of 30 days; or
(e) Any Borrower or any of its Subsidiaries shall
(i) default in any payment of principal of or interest of
any Indebtedness (other than the Loans) or in the payment of
any Guarantee Obligation, beyond the period of grace (not to
exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee
Obligation was created, if the aggregate amount of the
Indebtedness and/or Guarantee Obligations in respect of
which such default or defaults shall have occurred is at
least $7,500,000; or (ii) (A) default in the observance or
performance of any other agreement or condition relating to
any such Indebtedness or Guarantee Obligation 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 Indebtedness or beneficiary or beneficiaries of such
Guarantee Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to
cause, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable or
(B) any event occurs which gives rise to the right of the
holder of any such Indebtedness or Guarantee Obligation to
require the related Borrower to purchase or offer to
purchase any such Indebtedness or Guarantee Obligation; or
(f) (i) (A) Any Borrower or any of its Subsidiaries
shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its
assets, or any Borrower or any of its Subsidiaries shall
make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against any Borrower or any
of its Subsidiaries any case, proceeding or other action of
a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be
commenced against any Borrower or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets
which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof;
or (iv) any Borrower or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) any Borrower or
any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay
its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (ii) any
"accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect
to any Plan or any Lien in favor of the PBGC or a Plan shall
arise on the assets of any Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or
to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single Employer
Plan shall terminate for purposes of Title IV of ERISA,
(v) any Borrower or any Commonly Controlled Entity shall, or
in the reasonable opinion of the Required Lenders is likely
to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or
condition, together with all other such events or
conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against any Borrower or any of its Subsidiaries involving in
the aggregate a liability (not paid or fully covered by
insurance) of $1,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof;
or
(i) (i) Any Pledge Agreement shall cease, for any
reason, to be in full force and effect, or any pledgor
thereunder shall so assert or (ii) the Lien created by any
Pledge Agreement shall cease to be enforceable and of the
same effect and priority purported to be created thereby; or
(j) Any Change of Control shall occur; or
(k) the Managers shall cease to manage the businesses
of the Borrowers pursuant to the Management Agreements;
then, and in any such event, (A) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph (f) of this
Section with respect to any Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder
(with accrued interest thereon) and all other amounts owing under
this Agreement shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of
the following actions may be taken: (i) 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 Borrowers declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) 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
Borrowers, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be
due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in
this Section, presentment, demand, protest and all other notices
of any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably
designates and appoints the Administrative Agent as the agent of
such Lender under this Agreement and the other Loan Documents,
and each such Lender irrevocably authorizes the Administrative
Agent, in such capacity, 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 the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent
may execute any of its 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 it with reasonable care.
8.3 Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Borrower or any officer
or representative thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement
or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of any
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 any other Loan Document, or to inspect the
properties, books or records of any Borrower.
8.4 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, 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 any 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 a written notice of
assignment, negotiation or transfer thereof shall have been filed
with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required 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. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required 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 Loans.
8.5 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 the
Administrative Agent has received notice from a Lender or the
Borrowers 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, the Administrative Agent shall 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.
8.6 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact 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 Borrowers, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any s
agentLender. 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 Borrowers 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 Borrowers. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the
Administrative Agent hereunder that the Administrative Agent
reasonably believes are material, 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, condition (financial or otherwise),
prospects or creditworthiness of the Borrowers which may come
into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
8.7 Indemnification. The Lenders agree to indemnify
the Administrative Agent in its capacity as such (to the extent
not reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to do so), ratably according to their
respective Commitment Percentages in effect on the date on which
indemnification is sought (or, if indemnification is sought after
the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with
their Commitment Percentages immediately prior to such date),
from and against any and all liabilities, obligations, losses,
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 Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of,
the Commitments, this Agreement, any of 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 to be taken 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 gross negligence or
willful misconduct. The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable
hereunder.
8.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to,
accept deposits from and generally engage in any kind of business
with the Borrowers as though the Administrative Agent were not
the Administrative Agent hereunder and under the other Loan
Documents. With respect to the Loans made by 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 the Administrative Agent,
and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent upon
thirty days' notice to the Lenders. If the Administrative Agent
shall resign as Administrative Agent under this Agreement and the
other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor administrative agent for the
Lenders, which successor administrative agent shall be approved
by the Borrowers, whereupon such successor administrative agent
shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall
mean such successor administrative agent effective upon such
appointment and approval, and the former Administrative Agent's
rights, powers and duties as Administrative Agent shall be
terminated, without any other or further act or deed on the part
of such former Administrative Agent or any of the parties to this
Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent, the
provisions of this Section 8 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan
Documents.
8.10 Other Agents. The provisions of this Section 8
shall apply to the other Agents, if any, to the same extent that
such provisions apply to the Administrative Agent.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement
nor any other Loan Document, nor any terms hereof or thereof may
be amended, supplemented or modified except in accordance with
the provisions of this subsection. The Required Lenders may, or,
with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with
the Borrowers written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or
changing in any manner the rights of the Lenders or of the
Borrowers hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent,
as the case may be, may specify in such instrument, any of the
requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences, provided,
however, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan or Commitment or of any installment
or reduction thereof, or reduce the stated rate of any interest
or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration
date of any Lender's Commitment, in each case without the consent
of each Lender affected thereby, or (ii) amend, modify or waive
any provision of this subsection or reduce the percentage
specified in the definition of Required Lenders, or consent to
the assignment or transfer by any Borrower of any of its rights
and obligations under this Agreement and the other Loan Documents
or release all or substantially all of the Collateral or waive
any Default or Event of Default under Section 7(a), in each case
without the written consent of all the Lenders, or (iii) amend,
modify or waive any provision of Section 8 without the written
consent of the then Administrative Agent. Any such waiver and
any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the
Borrowers, the Lenders, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, the Borrowers,
the Lenders and the Administrative Agent shall be restored to
their former positions and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall
be deemed to be cured and not continuing; no such waiver shall
extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing (including by facsimile transmission), and, unless
otherwise expressly provided herein, shall be deemed to have been
duly given or made when delivered, or three days after being
deposited in the mail, postage prepaid, or one Business Day after
being sent by priority overnight mail with a nationally
recognized overnight delivery carrier, or, in the case of
telecopy notice, when received, addressed as follows in the case
of the Borrowers and the Administrative Agent, and as set forth
in Schedule 9.2 in the case of the other parties hereto, or to
such other address as may be hereafter notified by the respective
parties hereto:
The Borrowers: c/o Adelphia Communications Corporation
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin Higgin
Telecopy: 814-274-6586
The Administrative
Agent: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention:
Telecopy:
provided that any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to subsection 2.2,
2.4, 2.6, 2.7, 2.11 or 2.12 shall not be effective until
received.
9.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the
Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrowers
jointly and severally agree (a) to pay or reimburse the
Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development,
preparation and execution of, and in the case of the
Administrative Agent, any amendment, supplement or modification
to, this Agreement and the other Loan Documents and to pay or
reimburse the Administrative Agent for all its reasonable out-of-
pocket costs and expenses incurred in connection with any other
documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated
hereby and thereby, including in all such cases, without
limitation, the reasonable fees and disbursements of counsel to
the Administrative Agent, (b) to pay or reimburse each Lender and
the Administrative Agent for all its costs and expenses incurred
in connection with the enforcement or preservation of any rights
under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and
disbursements of counsel to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold each Lender
and the Administrative Agent harmless from any and all recording
and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation
or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d) to pay,
indemnify, and hold each Lender and the Administrative Agent
harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan
Documents and any such other documents, including, without
limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this
clause (d), collectively, the "indemnified liabilities"),
provided, that the Borrowers shall have no obligation hereunder
to the Administrative Agent or any Lender with respect to
indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the Administrative Agent or any such Lender
or (ii) legal proceedings commenced against the Administrative
Agent or any such Lender by any security holder or creditor
thereof arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such. The
agreements in this subsection shall survive repayment of the
Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure
to the benefit of the Borrowers, the Lenders, the Administrative
Agent and their respective successors and assigns, except that no
Borrower may assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each
Lender. Any purported transfer by any Borrower in contravention
of the foregoing shall be null and void.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to
such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any
such Loan for all purposes under this Agreement and the other
Loan Documents, and the Borrowers and the Administrative Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. The Borrowers agree that
if amounts outstanding under this Agreement are due or unpaid, or
shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant
shall, to the maximum extent permitted by applicable law, be
deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement,
provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 9.7(a) as
fully as if it were a Lender hereunder. The Borrowers also agree
that each Participant shall be entitled to the benefits of
subsections 2.14, 2.15 and 2.16 with respect to its participation
in the Commitments and the Loans outstanding from time to time as
if it was a Lender, provided that, in the case of subsection
2.15, such Participant shall have complied with the requirements
of said subsection, and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to any
such subsection than the transferor Lender would have been
entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time and from time to time assign to any Lender or
any affiliate thereof or, with the consent of the Borrowers and
the Administrative Agent (which in each case shall not be
unreasonably withheld), to an additional bank or financial
institution (an "Assignee") all or any part of its rights and
obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit G, executed by such Assignee, such assigning
Lender (and, in the case of an Assignee that is not then a Lender
or an affiliate thereof, by the Borrowers and the Administrative
Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the
case of any such assignment to an additional bank or financial
institution, the sum of the aggregate principal amount of the
Loans and the aggregate amount of the Available Commitment being
assigned and, if such assignment is of less than all of the
rights and obligations of the assigning Lender, the sum of the
aggregate principal amount of the Loans and the aggregate amount
of the Available Commitment remaining with the assigning Lender
are each not less than $5,000,000. Upon such execution,
delivery, acceptance and recording, from and after the effective
date determined pursuant to such Assignment and Acceptance, (x)
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 hereunder with a Commitment as
set forth therein, and (y) the assigning Lender thereunder shall,
to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations
under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding any provision of this paragraph
(c) and paragraph (e) of this subsection, the consent of the
Borrowers shall not be required, and, unless requested by the
Assignee and/or the assigning Lender, new Notes shall not be
required to be executed and delivered by the Borrowers, for any
assignment which occurs at any time when any of the events
described in Section 7(f) shall have occurred and be continuing.
(d) The Administrative Agent, on behalf of the
Borrowers, shall maintain at the address of the Administrative
Agent referred to in subsection 9.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower,
the Administrative Agent and the Lenders may (and, in the case of
any Loan or other obligation hereunder not evidenced by a Note,
shall) treat each Person whose name is recorded in the Register
as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan
Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not
evidenced by a Note shall be effective only upon appropriate
entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case
of an Assignee that is not then a Lender or an affiliate thereof,
by the Borrowers and the Administrative Agent) together with
payment to the Administrative Agent of a registration and
processing fee of $3,000, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information
contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrowers.
(f) The Borrowers authorize each Lender to disclose to
any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such
Lender's possession concerning the Borrowers and their
Subsidiaries and Affiliates which has been delivered to such
Lender by or on behalf of the Borrowers pursuant to this
Agreement or which has been delivered to such Lender by or on
behalf of the Borrowers in connection with such Lender's credit
evaluation of the Borrowers and their Affiliates prior to
becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this subsection
concerning assignments of Loans and Notes relate only to absolute
assignments and that such provisions do not prohibit assignments
creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
9.7 Adjustments; Set-off. (a) If any Lender (a
"Benefitted Lender") shall at any time receive any payment of all
or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 7(f), or otherwise), in a
greater proportion than any such payment to, or collateral
received by, any other Lender, if any, in respect of such other
Lender's Loans, or interest thereon, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loan, or shall
provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to
cause such Benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the
Lenders, provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right,
without prior notice to the Borrowers, any such notice being
expressly waived by the Borrowers to the extent permitted by
applicable law, upon any amount becoming due and payable by any
Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured
or unmatured, at any time held or owing by such Lender or any
branch or agency thereof to or for the credit or the account of
any Borrower. Each Lender agrees promptly to notify any Borrower
and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off
and application.
9.8 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy transmission), and
all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be lodged with the
Borrowers and the Administrative Agent.
9.9 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrowers, the
Administrative Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth
or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The
Borrowers hereby irrevocably and unconditionally:
(a) submit for themselves and their property in any
legal action or proceeding relating to this Agreement and
the other Loan Documents to which they are parties, or for
recognition and enforcement of any judgement in respect
thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the
United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consent that any such action or proceeding may be
brought in such courts and waive any objection that they may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agree
not to plead or claim the same;
(c) agree that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to the Borrowers at their
address set forth in subsection 9.2 or at such other address
of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agree that nothing herein shall affect the right
to effect service of process in any other manner permitted
by law or shall limit the right to sue in any other
jurisdiction; and
(e) waive, to the maximum extent not prohibited by
law, any right they may have to claim or recover in any
legal action or proceeding referred to in this subsection
any special, exemplary or punitive damages.
9.13 Acknowledgements. The Borrowers hereby
acknowledge that:
(a) they have been advised by counsel in the
negotiation, execution and delivery of this Agreement and
the other Loan Documents;
(b) neither the Administrative Agent nor any Lender
has any fiduciary relationship with or duty to the Borrowers
arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between
the Administrative Agent and Lenders, on one hand, and the
Borrowers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among
the Borrowers and the Lenders.
9.14 WAIVERS OF JURY TRIAL. THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
9.15 Authority of General Partner. The General
Partner of each of MV and Robinson shall have the right to
execute and deliver documents on behalf of each of MV and
Robinson, respectively, under this Agreement and take any other
action on behalf of each of MV and Robinson, respectively, under
this Agreement, and the Administrative Agent and the Lenders
shall be under no obligation to make any inquiry respecting such
authority.
9.16 CVA as a Borrower. CVA shall become a Borrower
upon satisfaction of the following conditions:
(a) Supplement to Agreement. CVA shall have executed
and delivered to the Administrative Agent a Supplement to
this Agreement in substantially the form of Exhibit H
hereto.
(b) Supplement to Stock Pledge Agreement. ACC shall
have executed a Supplement to the Stock Pledge Agreement in
substantially the form of Exhibit A thereto.
(c) Notes. The Administrative Agent shall have
received, on behalf of each Lender which shall have received
a Note pursuant to subsection 2.5(e), a replacement Note
reflecting the addition of CVA as a Borrower.
(d) Other Conditions. Each of the other conditions
set forth in Section 4.1(d), (e), (f), (h), (i), (k) and (l)
shall have been fulfilled with respect to CVA to the same
extent as if CVA had been a Borrower on the date of this
Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
PLATO COMMUNICATIONS, INC.
NORTHEAST CABLE, INC.
By:
Title:
MARTHA'S VINEYARD CABLEVISION, L.P.
By: U.S. Telemedia Investment
Company,
its General Partner
By:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: PLATO COMMUNICATIONS, INC.
its General Partner
By:
Title:
CHEMICAL BANK,
as Administrative Agent and as
a Lender
By:
Title:
<PAGE>
Annex A
PRICING GRID (in basis points)
Ratio of Total Funded Debt to Annualized Operating Cash Flow
Applicable Margin Applicable Margin
for ABR Loans for Eurodollar Loans
> 5.75:1 75 175
<= 5.75:1 but > 5.25:1 50 150
<= 5.25:1 but > 4.75:1 25 125
<= 4.75:1 0 100<PAGE>
PLATO COMMUNICATIONS, INC.
NORTHEAST CABLE, INC.
MARTHA'S VINEYARD CABLEVISION, L.P.
ROBINSON/PLUM CABLEVISION, L.P.
$190,000,000
CREDIT AGREEMENT
The Several Lenders From Time to Time Parties Hereto
and
CHEMICAL BANK,
as Administrative Agent
October 27, 1995
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions. . . . . . . . . . . . . . . . . 19
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS. . . . . . . . . . . . . . . 20
2.1 Revolving Credit Commitments . . . . . . . . . . . . . . . . . 20
2.2 Procedure for Revolving Credit Borrowing . . . . . . . . . . . 20
2.3 Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . . 21
2.4 Termination or Reduction of Commitments. . . . . . . . . . . . 21
2.5 Repayment of Loans; Evidence of Debt . . . . . . . . . . . . . 21
2.6 Optional and Mandatory Prepayments . . . . . . . . . . . . . . 22
2.7 Conversion and Continuation Options. . . . . . . . . . . . . . 23
2.8 Minimum Amounts and Maximum Number of Tranches . . . . . . . . 23
2.9 Interest Rates and Payment Dates . . . . . . . . . . . . . . . 24
2.10 Computation of Interest and Fees. . . . . . . . . . . . . . . 24
2.11 Inability to Determine Interest Rate. . . . . . . . . . . . . 25
2.12 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . 25
2.13 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.14 Requirements of Law . . . . . . . . . . . . . . . . . . . . . 26
2.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.16 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.17 Change of Lending Office. . . . . . . . . . . . . . . . . . . 30
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 30
3.1 Financial Condition. . . . . . . . . . . . . . . . . . . . . . 30
3.2 No Change. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.3 Existence; Compliance with Law . . . . . . . . . . . . . . . . 31
3.4 Corporate Power; Authorization; Enforceable
Obligations. . . . . . . . . . . . . . . . . . . . . . . . . 32
3.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.6 No Material Litigation . . . . . . . . . . . . . . . . . . . . 32
3.7 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.8 Ownership of Property; Liens . . . . . . . . . . . . . . . . . 33
3.9 Intellectual Property. . . . . . . . . . . . . . . . . . . . . 33
3.10 No Burdensome Restrictions. . . . . . . . . . . . . . . . . . 33
3.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.12 Federal Regulations . . . . . . . . . . . . . . . . . . . . . 33
3.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.14 Investment Company Act; Other Regulations . . . . . . . . . . 34
3.15 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 34
3.16 General Partner's Existence; Compliance with Law. . . . . . . 34
3.17 General Partner's Power; Authorization; Enforceable
Obligations. . . . . . . . . . . . . . . . . . . . . . . . . 35
3.18 Accuracy of Information . . . . . . . . . . . . . . . . . . . 35
3.19 Purpose of Loans. . . . . . . . . . . . . . . . . . . . . . . 35
3.20 Environmental Matters . . . . . . . . . . . . . . . . . . . . 35
3.21 Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.22 Franchises; FCC and Copyright Matters . . . . . . . . . . . . 37
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . 39
4.1 Conditions to Initial Loans. . . . . . . . . . . . . . . . . . 39
4.2 Conditions to Each Loan. . . . . . . . . . . . . . . . . . . . 42
SECTION 5. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . 43
5.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . 43
5.2 Certificates; Other Information. . . . . . . . . . . . . . . . 44
5.3 Payment of Obligations . . . . . . . . . . . . . . . . . . . . 45
5.4 Conduct of Business and Maintenance of Existence . . . . . . . 45
5.5 Maintenance of Property; Insurance . . . . . . . . . . . . . . 45
5.6 Inspection of Property; Books and Records; Discussions . . . . 46
5.7 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.8 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . 47
6.1 Financial Condition Covenants. . . . . . . . . . . . . . . . . 47
6.2 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . 47
6.3 Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . 48
6.4 Limitation on Guarantee Obligations. . . . . . . . . . . . . . 49
6.5 Limitation on Fundamental Changes. . . . . . . . . . . . . . . 49
6.6 Limitation on Sale of Assets . . . . . . . . . . . . . . . . . 49
6.7 Limitation on Restricted Payments. . . . . . . . . . . . . . . 50
6.8 Limitation on Investments, Loans and Advances. . . . . . . . . 50
6.9 Limitation on Modifications of Management Subordination
Agreements . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.10 Limitation on Transactions with Affiliates. . . . . . . . . . 51
6.11 Limitation on Sales and Leasebacks. . . . . . . . . . . . . . 51
6.12 Limitation on Changes in Fiscal Year. . . . . . . . . . . . . 52
6.13 Limitation on Negative Pledge Clauses . . . . . . . . . . . . 52
6.14 Limitation on Lines of Business; Activities of
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . 52
6.15 Limitation on Interest Rate Protection Agreements . . . . . . 52
6.16 Limitation on Management Fees . . . . . . . . . . . . . . . . 52
SECTION 7. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8. THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . . . 56
8.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . 56
8.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . 56
8.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . 56
8.4 Reliance by Administrative Agent . . . . . . . . . . . . . . . 56
8.5 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . 57
8.6 Non-Reliance on Administrative Agent and Other Lenders . . . . 57
8.7 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 58
8.8 Administrative Agent in Its Individual Capacity. . . . . . . . 58
8.9 Successor Administrative Agent . . . . . . . . . . . . . . . . 59
8.10 Other Agents 59
SECTION 9. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . 59
9.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . 59
9.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
9.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . 61
9.4 Survival of Representations and Warranties . . . . . . . . . . 61
9.5 Payment of Expenses and Taxes. . . . . . . . . . . . . . . . . 61
9.6 Successors and Assigns; Participations and Assignments . . . . 62
9.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . . . . 65
9.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . 66
9.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . 66
9.12 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . 66
9.13 Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . 67
9.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . 67
9.15 Authority of General Partner. . . . . . . . . . . . . . . . . 67
9.16 CVA as a Borrower . . . . . . . . . . . . . . . . . . . . . . 67
Annex A - Pricing Grid
SCHEDULES
Schedule I - Commitments
Schedule 3.15 - Subsidiaries of the Borrowers
Schedule 3.20 - Environmental Matters
Schedule 3.22 - Systems and Franchises
Schedule 4.1(b) - Refinanced Existing Indebtedness
Schedule 6.2(c) - Indebtedness of the Borrowers
Schedule 6.3(f) - Liens Securing Indebtedness listed
on Schedule 6.2(c)
Schedule 6.4(a) - Guarantee Obligations
Schedule 9.2 - Copies for Notices
EXHIBITS
Exhibit A Form of Note
Exhibit B-1 Form of Stock Pledge Agreement
Exhibit B-2 Form of Partnership Pledge Agreement
Exhibit C Form of Compliance Certificate
Exhibit D Form of Management Subordination Agreement
Exhibit E Form of Borrowing Certificate
Exhibit F-1 Form of Legal Opinion of Counsel to the Borrowers
Exhibit F-2 Form of Legal Opinion of Borrowers' General
Counsel
Exhibit F-3 Form of Legal Opinion of Borrowers' FCC Counsel
Exhibit G Form of Assignment and Acceptance
Exhibit H Form of Supplement to this Agreement
Exhibit I Form of Affiliate Subordination Agreement
SCHEDULE I
COMMITMENTS
Commitment
Bank Commitment Percentage
Chemical Bank $ 190,000,000 100%
EXHIBIT A TO
CREDIT AGREEMENT
[FORM OF PROMISSORY NOTE]
NOTE
$190,000,000 New York, New York
October 27, 1995
FOR VALUE RECEIVED, the undersigned, PLATO
COMMUNICATIONS, INC., a Delaware corporation ("Plato"), NORTHEAST
CABLE, INC., a Delaware corporation ("Northeast"), MARTHA'S
VINEYARD CABLEVISION, L.P., and a Delaware limited partnership,
ROBINSON/PLUM CABLEVISION, L.P., a Pennsylvania corporation
("Robinson"; together with Plato, Northeast and MV, the
"Borrowers", and individually, each a "Borrower"), hereby
unconditionally promise to pay, jointly and severally, to the
order of CHEMICAL BANK ("Lender") at the office of Chemical Bank,
located at 270 Park Avenue, New York, New York 10017, in lawful
money of the United States of America and in immediately
available funds, on the Termination Date the principal amount of
(a) ONE HUNDRED NINETY MILLION DOLLARS ($190,000,000), or, if
less, (b) the aggregate unpaid principal amount of all Loans made
by the Lender to the Borrowers pursuant to subsection 2.1 of the
Credit Agreement (as defined below). The Borrowers further agree
to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the
rates and on the dates specified in subsections 2.9 and 2.11 of
the Credit Agreement.
The holder of this Note is authorized to endorse
on the schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a
part hereof, the date, Type and amount of each Loan made pursuant
to the Credit Agreement and the date and amount of each payment
or prepayment of principal thereof, each continuation thereof,
each conversion of all or a portion thereof to another Type and,
in the case of Eurodollar Loans, the length of each Interest
Period (and Eurodollar Rate) with respect thereto. Each such
endorsement shall constitute prima facie evidence of the accuracy
of the information endorsed. The failure to make any such
endorsement (or any error therein) shall not affect the
obligations of the Borrowers in respect of such Loans or this
Note, the Credit Agreement or any other Loan Document.
This Note (a) is one of the Promissory Notes
referred to in the Credit Agreement dated as of October 27, 1995
(as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrowers, the other
banks and financial institutions from time to time parties
thereto, and Chemical Bank, as Administrative Agent, (b) is
subject to the provisions of the Credit Agreement and (c) is
subject to optional and mandatory prepayment in whole or in part
as provided in the Credit Agreement. This Note is secured as
provided in the Loan Documents. Reference is hereby made to the
Loan Documents for a description of the nature and extent of the
security, the terms and conditions upon which the security
interests were granted and the rights of the holder of this Note
in respect thereof.
Upon the occurrence of any one or more of the
Events of Default, all amounts then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect
to this Note, whether maker, principal, surety, guarantor,
endorser or otherwise, hereby waive presentment, demand, protest
and all other notices of any kind.
Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
PLATO COMMUNICATIONS, INC.
NORTHEAST CABLE, INC.
By:
Name:
Title:
MARTHA'S VINEYARD CABLEVISION, L.P.
By: U.S. TELE-MEDIA INVESTMENT
COMPANY, its General Partner
By:
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: PLATO COMMUNICATIONS, INC.,
its General Partner
By:
Name:
Title:
Schedule A
to Promissory Note
<TABLE>
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<S> <C> <C> <C> <C> <C> <C>
Amount Amount of Amount of Unpaid
Amount of Converted Principal ABR Loans Principal
to of ABR Converted to Balnce
Date ABR Loans ABR Loans Loans Repaid Eurodollar Loans of ABR Loans Notation Made By
</TABLE>
Schedule B
to Promissory Note
<TABLE>
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Amount of Unpaid
Amount Converted Interest Period Amount of Amount of Eurodollar Principal
Amount of to or Continued and Eurodollar Principal of Eurodollar Loans Con- Balance of
Date Eurodollar As Eurodollar Rated with Res- Eurodollar Loans Converted verted to C/D Eurodollar Notation
Loans Loans pect thereto Loans repaid to ABR Loans Rate Loans Loans Made By
</TABLE>
Schedule C
to Promissory Note
<TABLE>
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF C/D RATE LOANS
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Amount Amount of
Converted Interest Amount of C/D Rate Unpaid
to or Period Amount of C/D Rate Loans Principal
Amount Continued and C/D Principal Loans Converted to Balance
of C/D as C/D Rate with Rate C/D Converted to Eurodollar of C/D Notation
Date Rate Loans Rate Loans Respect Thereto Loans Repaid ABR Loans Loans Rate Loans Made By
</TABLE>
STOCK PLEDGE AGREEMENT, dated as of October 27, 1995, made by
ADELPHIA COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Pledgor"), in favor of CHEMICAL BANK, as Administrative Agent for
the several banks and other financial institutions (collectively,
the "Lenders") from time to time parties to the Credit Agreement,
dated as of October 27, 1995 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among PLATO
COMMUNICATIONS, INC., a Delaware corporation ("Plato"), NORTHEAST
CABLE, INC., a Delaware corporation ("Northeast"), MARTHA'S
VINEYARD CABLEVISION, L.P., a Delaware limited partnership ("MV")
and ROBINSON/PLUM CABLEVISION, L.P., a Pennsylvania limited
partnership ("Robinson"; together with Plato, Northeast and MV, the
"Borrowers", and each a "Borrower"), and the Administrative Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Loans to the Borrowers upon the terms and
subject to the conditions set forth therein;
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective Loans to the Borrowers that the
Pledgor shall have executed and delivered this Pledge Agreement to
the Administrative Agent for the ratable benefit of the Lenders;
and
WHEREAS, pursuant to the provisions of subsection 9.16 of the
Credit Agreement the Pledgor has agreed that, in the circumstances
described therein, it will execute and deliver to the
Administrative Agent, for the ratable benefit of the Lenders, a
pledge agreement supplement in the form of Exhibit C hereto (the
"Pledge Agreement Supplement"), pledging hereunder the Capital
Stock of Central Virginia Cable, Inc., a Delaware corporation
("CVA"), if CVA shall, after the date hereof, become a Borrower
under the Credit Agreement (such additional Capital Stock, together
with all certificates, options or rights of any nature whatsoever
that may be granted by such Issuer to the Pledgor in respect of
such Capital Stock, being hereinafter referred to as the
"Additional Pledged Collateral");
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective Loans
under the Credit Agreement, the Pledgor hereby agrees with the
Administrative Agent, for the benefit of the Lenders, as follows:
10. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
(b) The following terms defined in Article 9 of the Uniform
Commercial Code as from time to time in effect in the State of New
York are used herein as so defined: Accounts, Instrument, Chattel
Paper, and the following terms have the following meanings:
"Agreement": this Pledge Agreement, as the same may be amended,
modified or otherwise supplemented from time to time.
"Code": the Uniform Commercial Code from time to time in effect in
the State of New York.
"Collateral": the Pledged Collateral and all Proceeds.
"Collateral Account": any account established to hold money
Proceeds, maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative
Agent for the account of the Lenders only as provided in Section
8(a).
"Issuers": the collective reference to the companies identified on
Schedule 1 attached hereto as the issuers of the Pledged
Collateral; individually, each an "Issuer".
"Obligations": the collective reference to the unpaid principal of
and interest on (including, without limitation, interest accruing
at the then applicable rate provided in the Credit Agreement after
the maturity of the Loans and interest accruing at the then
applicable rate provided in the Credit Agreement after the filing
of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to each
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of the Borrowers to the Administrative
Agent and the Lenders, including, without limitation, any
commitment fees, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
Credit Agreement, any Notes, this Agreement, the other Loan
Documents or any other document made, delivered or given in
connection with any of the foregoing, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be paid
by the Borrowers pursuant to the terms of the Credit Agreement,
this Agreement or any other Loan Document).
"Pledged Collateral": (i) the shares of capital stock listed on
Schedule 1 hereto, together with all stock certificates, options or
rights of any nature whatsoever that may be issued or granted by
any Issuer to the Pledgor in respect of the Pledged Collateral
while this Agreement is in effect and (ii) Additional Pledged
Collateral.
"Proceeds": all "proceeds" as such term is defined in Section 9-
306(1) of the Uniform Commercial Code in effect in the State of New
York on the date hereof and, in any event, shall include, without
limitation, all dividends or other income from the Pledged
Collateral, collections thereon or distributions with respect
thereto.
"Securities Act": the Securities Act of 1933, as amended.
(c) 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, and section and paragraph references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
11. Pledge; Grant of Security Interest. The Pledgor hereby
delivers to the Administrative Agent, for the ratable benefit of
the Lenders, all the Pledged Collateral and hereby grants to
Administrative Agent, for the ratable benefit of the Lenders, a
first security interest in the Collateral, as collateral security
for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of
the Obligations.
12. Stock Powers. Concurrently with the delivery to the
Administrative Agent of each certificate representing one or more
shares of Pledged Collateral to the Administrative Agent, the
Pledgor shall deliver an undated stock power covering such
certificate, duly executed in blank by the Pledgor with, if the
Administrative Agent so requests, signature guaranteed.
13. Representations and Warranties. The Pledgor represents and
warrants that:
(a) The Pledgor has the corporate power and authority and the
legal right to execute and deliver, to perform its obligations
under, and to grant the security interest in the Collateral
pursuant to, this Agreement and has taken all necessary corporate
action to authorize its execution, delivery and performance of, and
grant of the security interest in the Collateral pursuant to, this
Agreement.
(b) This Agreement constitutes a legal, valid and binding
obligation of the Pledgor, enforceable in accordance with its
terms, and upon delivery to the Administrative Agent of the stock
certificates evidencing the Pledged Collateral, the security
interest created pursuant to this Agreement will constitute a
valid, perfected first priority security interest in the
Collateral, enforceable in accordance with its terms against all
creditors of the Pledgor and any Persons purporting to purchase any
Collateral from the Pledgor, except in each case as enforceability
may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(c) The shares of Pledged Collateral constitute all the issued and
outstanding shares of all classes of Capital Stock of each Issuer,
except for the 150 shares of Common Stock of Northeast owned by the
Gans Family.
(d) All the shares of the Pledged Collateral have been duly and
validly issued and are fully paid and nonassessable.
(e) The Pledgor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Collateral, free of any
and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement.
14. Covenants. The Pledgor covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date
of this Agreement until this Agreement is terminated and the
security interests created hereby are released:
(a) If the Pledgor shall, as a result of its ownership of the
Pledged Collateral, become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option
or rights, whether in addition to, in substitution of, as a
conversion of, or in exchange for any shares of the Pledged
Collateral, or otherwise in respect thereof, the Pledgor shall
accept the same as the agent of the Administrative Agent and the
Lenders, hold the same in trust for the Administrative Agent and
the Lenders and deliver the same forthwith to the Administrative
Agent in the exact form received, duly indorsed by the Pledgor to
the Administrative Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by the
Pledgor and with, if the Administrative Agent so requests,
signature guaranteed, to be held by the Administrative Agent,
subject to the terms hereof, as additional collateral security for
the Obligations. Any sums paid upon or in respect of the Pledged
Collateral upon the liquidation or dissolution of any Issuer shall
be paid over to the Administrative Agent to be held by it hereunder
as additional collateral security for the Obligations, and in case
any distribution of capital shall be made on or in respect of the
Pledged Collateral or any property shall be distributed upon or
with respect to the Pledged Collateral pursuant to the
recapitalization or reclassification of the capital of any Issuer
or pursuant to the reorganization thereof, the property so
distributed shall be delivered to the Administrative Agent to be
held by it hereunder as additional collateral security for the
Obligations. If any sums of money or property so paid or
distributed in respect of the Pledged Collateral shall be received
by the Pledgor, the Pledgor shall, until such money or property is
paid or delivered to the Administrative Agent, hold such money or
property in trust for the Lenders, segregated from other funds of
the Pledgor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative Agent,
the Pledgor will not (i) vote to enable, or take any other action
to permit, any Issuer to issue any stock or other equity securities
of any nature or to issue any other securities convertible into or
granting the right to purchase or exchange for any stock or other
equity securities of any nature of any Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option
with respect to, the Collateral, (iii) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Collateral, or any interest therein,
except for the security interests created by this Agreement or (iv)
enter into any agreement or undertaking restricting the right or
ability of the Pledgor or the Administrative Agent to sell, assign
or transfer any of the Collateral.
(c) The Pledgor shall maintain the security interest created by
this Agreement as a first, perfected security interest and shall
defend such security interest against claims and demands of all
Persons whomsoever. At any time and from time to time, upon the
written request of the Administrative Agent, and at the sole
expense of the Pledgor, the Pledgor will promptly and duly execute
and deliver such further instruments and documents and take such
further actions as the Administrative Agent may reasonably request
for the purposes of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted. If any
amount payable under or in connection with any of the Collateral
shall be or become evidenced by any promissory note, other
instrument or chattel paper, such note, instrument or chattel paper
shall be immediately delivered to the Administrative Agent, duly
endorsed in a manner satisfactory to the Administrative Agent, to
be held as Collateral pursuant to this Agreement.
(d) The Pledgor shall pay, and save the Administrative Agent and
each Lender harmless from, any and all liabilities with respect to,
or resulting from any delay in paying, any and all stamp, excise,
sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with
any of the transactions contemplated by this Agreement, except for
any such liabilities which result from the gross negligence or
wilful misconduct of the Administrative Agent or such Lender, as
the case may be.
15. Cash Dividends; Voting Rights. Unless an Event of Default
shall have occurred and be continuing and the Administrative Agent
shall have given notice to the Pledgor of the Administrative
Agent's intent to exercise its corresponding rights pursuant to
Section 7 below, the Pledgor shall be permitted to receive all cash
dividends paid in the normal course of business of the Issuers and
consistent with past practice, to the extent permitted in the
Credit Agreement, in respect of the Pledged Collateral and to
exercise all voting and corporate rights with respect to the
Pledged Collateral; provided, however, that no vote shall be cast
or corporate right exercised or other action taken which, in the
Administrative Agent's reasonable judgment, would impair the
Collateral or which would be inconsistent with or result in any
violation of any provision of the Credit Agreement, this Agreement
or any other Loan Document.
16. Rights of the Lenders and the Administrative Agent. (a) All
money Proceeds received by the Administrative Agent hereunder shall
be held by the Administrative Agent for the benefit of the Lenders
in a Collateral Account. All Proceeds while held by the
Administrative Agent in a Collateral Account (or by the Pledgor in
trust for the Administrative Agent and the Lenders) shall continue
to be held as collateral security for all the Obligations and shall
not constitute payment thereof until applied as provided in Section
8(a).
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise
such rights to the Pledgor, (i) the Administrative Agent shall have
the right to receive any and all cash dividends paid in respect of
the Pledged Collateral and make application thereof to the
Obligations in such order as the Administrative Agent may determine
and (ii) all shares of the Pledged Collateral shall be registered
in the name of the Administrative Agent or its nominee, and the
Administrative Agent or its nominee may thereafter exercise (A) all
voting, corporate and other rights pertaining to such shares of the
Pledged Collateral at any meeting of shareholders of any Issuer or
otherwise and (B) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining
to such shares of the Pledged Collateral as if it were the absolute
owner thereof (including, without limitation, the right to exchange
at its discretion any and all of the Pledged Collateral upon the
merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of any Issuer or upon
the exercise by the Pledgor or the Administrative Agent of any
right, privilege or option pertaining to such shares of the Pledged
Collateral, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Collateral with any committee,
depositary, transfer agent, registrar or other designated agency
upon such terms and conditions as the Administrative Agent may
determine), all without liability except to account for property
actually received by it, but the Administrative Agent shall have no
duty to the Pledgor to exercise any such right, privilege or option
and shall not be responsible for any failure to do so or delay in
so doing.
17. Remedies. (a) If an Event of Default shall have occurred and
be continuing, at any time at the Administrative Agent's election,
the Administrative Agent may apply all or any part of Proceeds held
in any Collateral Account in payment of the Obligations in such
order as the Administrative Agent may elect.
(b) If an Event of Default shall have occurred and be continuing,
the Administrative Agent, on behalf of the Lenders, may exercise,
in addition to all other rights and remedies granted in this
Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies
of a secured party under the Code. Without limiting the generality
of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to
below) to or upon the Pledgor or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, assign, give option or options to
purchase or otherwise dispose of and deliver the Collateral or any
part thereof (or contract to do any of the foregoing), in one or
more parcels at public or private sale or sales, in the over-the-
counter market, at any exchange, broker's board or office of the
Administrative Agent or any Lender or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent or any
Lender shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or
sales, to purchase the whole or any part of the Collateral so sold,
free of any right or equity of redemption in the Pledgor, which
right or equity of redemption is hereby waived or released. The
Administrative Agent shall apply any Proceeds from time to time
held by it and the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred in respect
thereof or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights
of the Administrative Agent and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements of
counsel to the Administrative Agent, to the payment in whole or in
part of the Obligations, in such order as the Administrative Agent
may elect, and only after such application and after the payment by
the Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Administrative Agent account for
the surplus, if any, to the Pledgor. To the extent permitted by
applicable law, the Pledgor waives all claims, damages and demands
it may acquire against the Administrative Agent or any Lender
arising out of the exercise by them of any rights hereunder. If
any notice of a proposed sale or other disposition of Collateral
shall be required by law, such notice shall be deemed reasonable
and proper if given at least 20 days before such sale or other
disposition.
(c) The Pledgor waives and agrees not to assert any rights or
privileges which it may acquire under Section 9-112 of the Code,
except the right to receive any surplus of the proceeds of the sale
or other disposition of the Collateral remaining after payment in
full of the Obligations; the Pledgor shall not be liable for any
deficiency if the proceeds of any sale or other disposition of
Collateral are insufficient to pay the Obligations.
18. Registration Rights; Private Sales. (a) If the
Administrative Agent shall determine to exercise its right to sell
any or all of the Pledged Collateral pursuant to Section 8(b)
hereof, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Collateral, or that
portion thereof to be sold, registered under the provisions of the
Securities Act, the Pledgor will cause the Issuer thereof to (i)
execute and deliver, and cause the directors and officers of such
Issuer to execute and deliver, all such instruments and documents,
and do or cause to be done all such other acts as may be, in the
opinion of the Administrative Agent, necessary or advisable to
register the Pledged Collateral, or that portion thereof to be
sold, under the provisions of the Securities Act, (ii) to use its
best efforts to cause the registration statement relating thereto
to become effective and to remain effective for a period of one
year from the date of the first public offering of the Pledged
Collateral, or that portion thereof to be sold, and (iii) to make
all amendments thereto and/or to the related prospectus which, in
the opinion of the Administrative Agent, are necessary or
advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto. The Pledgor agrees to
cause such Issuer to comply with the provisions of the securities
or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its
security holders, as soon as practicable, an earnings statement
(which need not be audited) which will satisfy the provisions of
Section 11(a) of the Securities Act.
(b) The Pledgor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged
Collateral, by reason of certain prohibitions contained in the
Securities Act and applicable state securities laws or otherwise,
and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges and agrees that any such
private sale may result in prices and other terms less favorable
than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to
have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale
of any of the Pledged Collateral for the period of time necessary
to permit the Issuer thereof to register such securities for public
sale under the Securities Act, or under applicable state securities
laws, even if such Issuer would agree to do so.
(c) The Pledgor further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make
such sale or sales of all or any portion of the Pledged Collateral
pursuant to this Section valid and binding and in compliance with
any and all other applicable Requirements of Law. The Pledgor
further agrees that a breach of any of the covenants contained in
this Section will cause irreparable injury to the Administrative
Agent and the Lenders, that the Administrative Agent and the
Lenders have no adequate remedy at law in respect of such breach
and, as a consequence, that each and every covenant contained in
this Section shall be specifically enforceable against the Pledgor,
and the Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred under the
Credit Agreement.
19. Irrevocable Authorization and Instruction to Issuer. The
Pledgor hereby authorizes and instructs each Issuer to comply with
any instruction received by it from the Administrative Agent in
writing that (a) states that an Event of Default has occurred and
(b) is otherwise in accordance with the terms of this Agreement,
without any other or further instructions from the Pledgor, and the
Pledgor agrees that each Issuer shall be fully protected in so
complying.
20. Administrative Agent's Appointment as Attorney-in-Fact. (a)
The Pledgor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent of the Administrative
Agent, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the
place and stead of the Pledgor and in the name of the Pledgor or in
the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out
the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this
Agreement, including, without limitation, any financing statements,
endorsements, assignments or other instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney
granted in Section 11(a). All powers, authorizations and agencies
contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security
interests created hereby are released.
21. Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-
207 of the Code or otherwise, shall be to deal with it in the same
manner as the Administrative Agent deals with similar securities
and property for its own account, except that the Administrative
Agent shall have no obligation to invest funds held in any
Collateral Account and may hold the same as demand deposits.
Neither the Administrative Agent, any Lender nor any of their
respective directors, officers, employees or agents shall be liable
for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the
request of the Pledgor or any other Person or to take any other
action whatsoever with regard to the Collateral or any part
thereof.
22. Execution of Financing Statements. Pursuant to Section 9-402
of the Code, the Pledgor authorizes the Administrative Agent to
file financing statements with respect to the Collateral without
the signature of the Pledgor in such form and in such filing
offices as the Administrative Agent reasonably determines
appropriate to perfect the security interests of the Administrative
Agent under this Agreement. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
23. Authority of Administrative Agent. The Pledgor acknowledges
that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the
Administrative Agent or the exercise or non-exercise by the
Administrative Agent of any option, voting right, request, judgment
or other right or remedy provided for herein or resulting or
arising out of this Agreement shall, as between the Administrative
Agent and the Lenders, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time
to time among them, but, as between the Administrative Agent and
the Pledgor, the Administrative Agent shall be conclusively
presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and neither the Pledgor
nor any Issuer shall be under any obligation, or entitlement, to
make any inquiry respecting such authority.
24. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing
(including by facsimile transmission), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given
or made when delivered, or three days after being deposited in the
mail, postage prepaid, or one Business Day after being sent by
priority overnight mail with a nationally recognized overnight
delivery carrier, or, in the case of telecopy notice, when
received, addressed as follows:
(a) if to the Administrative Agent, at its address or transmission
number for notices provided in subsection 9.2 of the Credit
Agreement; and
(b) if to the Pledgor, at its address or transmission number for
notices provided in subsection 9.2 of the Credit Agreement.
The Administrative Agent and the Pledgor may change their addresses
and transmission numbers for notices by notice in the manner
provided in this Section.
25. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
26. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except by a written
instrument executed by the Pledgor and the Administrative Agent,
provided that any provision of this Agreement may be waived by the
Administrative Agent and the Lenders in a letter or agreement
executed by the Administrative Agent or by facsimile transmission
from the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall by any
act (except by a written instrument pursuant to Section 17(a)
hereof), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms
and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender,
any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A
waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Administrative Agent or such
Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
27. Section Headings. The section headings used in this Agreement
are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the
interpretation hereof.
28. Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of the Pledgor and shall inure to the
benefit of the Administrative Agent and the Lenders and their
successors and assigns, provided that the Pledgor may not assign
any of its rights or obligations under this Agreement without the
prior written consent of the Administrative Agent.
29. FCC Approval. Notwithstanding anything to the contrary
contained herein or in the other Loan Documents, the Administrative
Agent will not take any action (including the exercise of voting
rights by the Administrative Agent with respect to the Pledged
Collateral) pursuant to this Agreement, the Credit Agreement or any
other Loan Document that would constitute or result in any
assignment of any FCC License or Franchise or any change of control
of any Loan Party without first obtaining the prior approval of the
FCC or other state or Governmental Authority, if, under the
existing law, such assignment of any FCC License or Franchise or
change of control would require the prior approval of the FCC or
other state or Governmental Authority. Prior to the exercise by
the Administrative Agent of any power, right, privilege or remedy
pursuant to this Agreement which requires any consent, approval,
recording, qualification or authorization of any Governmental
Authority or instrumentality, the Pledgor will execute and deliver,
or will cause the execution and delivery of, all applications,
certificates, instruments and other documents and papers that the
Administrative Agent may be required to obtain for such
governmental consent, approval, recording, qualification or
authorization. Without limiting the generality of the foregoing,
the Pledgor will use its best efforts upon the reasonable request
of the Administrative Agent to obtain from the appropriate
governmental authorities the necessary consents and approvals, if
any (i) for the granting to the Administrative Agent pursuant
hereto of the security interests provided for in this Agreement to
the extent, if any, such security interests may be granted under
existing statutes or regulations and (ii) for the assignment or
transfer of such authorizations, licenses and permits to the
Administrative Agent or its designee upon or following acceleration
of the payment of the Loans in accordance with the provisions of
the Credit Agreement.
30. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
ADELPHIA COMMUNICATIONS CORPORATION
By:___________________________
Name:
Title:
Schedules:
Schedule 1 - Description of Pledged Collateral
Exhibits:
Exhibit A - Supplement
Exhibit B - Acknowledgement and Consent
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED COLLATERAL
STOCK
Class of Stock
Issuer Stock Certificate No.
No. of Shares
Plato Communications, Inc. Common 1 1,000
Northeast Cable, Inc. Common 2 850
<PAGE>
EXHIBIT A TO
PLEDGE AGREEMENT
[FORM OF PLEDGE AGREEMENT SUPPLEMENT]
PLEDGE AGREEMENT SUPPLEMENT dated _____________, 19___ (this
"Supplement") made by ADELPHIA COMMUNICATIONS CORPORATION, a
Delaware corporation (the "Pledgor"), in favor of CHEMICAL BANK,
as Administrative Agent for the banks and other financial
institutions (the "Lenders") parties to the Credit Agreement,
dated as of October 27, 1995 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
among the Company, the Banks and the Administrative Agent.
1. This Supplement is executed and delivered pursuant to the terms
of the Pledge Agreement dated as of October 27, 1995 (as
supplemented by this Supplement, the "Pledge Agreement") by the
Company in favor of the Agent. Terms defined in the Pledge
Agreement are used herein with their defined meanings.
2. The Company confirms and reaffirms the security interest in the
Pledged Collateral granted to the Administrative Agent, for the
ratable benefit of the Lenders, under the Pledge Agreement, and
as additional collateral security for the prompt and complete
payment and performance when due of all the Obligations and to
induce the Lenders to make additional extensions of credit to the
Company in accordance with the terms of the Credit Agreement, the
Company hereby pledges, assigns, hypothecates, transfers and
delivers to the Administrative Agent, for the ratable benefit of
the Lenders, and hereby grants to the Administrative Agent, for
the ratable benefit of the Lenders, a first priority security
interest in the Additional Pledged Collateral listed on Schedule
1 annexed hereto and all proceeds thereof.
3. The Company hereby represents and warrants that the
representations and warranties contained in Section 5 of the
Pledge Agreement are true and correct on the date of this
Supplement with all references therein to "Pledged Collateral" to
include the Additional Pledged Collateral listed on Schedule 1
hereto and with references therein to "this Agreement" to mean
the Pledge Agreement as supplemented hereby. In addition, the
Company represents and warrants that this Supplement has been
duly executed and delivered by the Company and constitutes a
legal valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law).
4. This Supplement is supplemental to the Pledge Agreement, forms
a part thereof and is subject to all the terms thereof. Schedule
1 to the Pledge Agreement does, and shall be deemed to, include
each item listed on Schedule 1 hereto, and each such item shall
be and is included within the meaning of the term "Additional
Pledged Collateral" as such term is defined in the Pledge
Agreement and each issuer listed on Schedule 1 hereto shall be
and is included within the meaning of the term "Issuer", as such
term is defined in the Pledge Agreement.
IN WITNESS WHEREOF, the Company has caused this Supplement to be
duly executed and delivered by its duly authorized officer on the
date first set forth above.
ADELPHIA COMMUNICATIONS CORPORATION
By:
Name:
Title:
<PAGE>
SCHEDULE 1 TO
SUPPLEMENT TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED COLLATERAL
Class of Stock
Issuer Stock Certificate No.
No. of Shares
<PAGE>
EXHIBIT B TO
PLEDGE AGREEMENT
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Pledge Agreement dated as of October 27, 1995 (the "Pledge
Agreement"), made by ADELPHIA COMMUNICATIONS CORPORATION, in
favor of CHEMICAL BANK, as Administrative Agent. The undersigned
agrees for the benefit of the Administrative Agent and the
Lenders as follows:
1. The undersigned will be bound by the terms of the Pledge
Agreement and will comply with such terms insofar as such terms
are applicable to the undersigned.
2. The undersigned will notify the Administrative Agent promptly
in writing of the occurrence of any of the events described in
Section 5(a) of the Pledge Agreement.
3. The terms of Section 9(c) of the Pledge Agreement shall apply
to it, mutatis mutandis, with respect to all actions that may be
required of it under or pursuant to or arising out of Section 9
of the Pledge Agreement.
[NAME OF ISSUER]
By:
Name:
Title:
PARTNERSHIP PLEDGE AGREEMENT, dated as of October 27, 1995, made
by PLATO COMMUNICATIONS, INC., a Delaware corporation (the
"Pledgor"), in favor of CHEMICAL BANK, as Administrative Agent
for the several banks and other financial institutions
(collectively, the "Lenders") from time to time parties to the
Credit Agreement, dated as of October 27, 1995 (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement") among PLATO COMMUNICATIONS, INC., a Delaware
corporation ("Plato"), NORTHEAST CABLE INC., a Delaware
corporation ("Northeast"), MARTHA'S VINEYARD CABLEVISION, L.P., a
Delaware limited partnership ("MV") and ROBINSON/PLUM
CABLEVISION, L.P., a Pennsylvania limited partnership
("Robinson"; together with Plato, Northeast and MV, the
"Borrowers", and each a "Borrower"), and the Administrative
Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Loans to the Borrower upon the terms and
subject to the conditions set forth therein; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective Loans to the Borrowers that the
Pledgor shall have executed and delivered this Pledge Agreement
to the Administrative Agent for the ratable benefit of the
Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective
Loans under the Credit Agreement, the Pledgor hereby agrees with
the Administrative Agent, for the benefit of the Lenders, as
follows:
4. Defined Terms. (a) Unless otherwise defined herein, terms
which are defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
(b) The following terms defined in Article 9 of the Uniform
Commercial Code as from time to time in effect in the State of
New York are used herein as so defined: Accounts, Instrument,
Chattel Paper, and the following terms have the following
meanings:
"Agreement": this Pledge Agreement, as the same may be amended,
modified or otherwise supplemented from time to time.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"General Intangibles": as defined in Section 9-106 of the Code
and shall include, without limitation, the partnership interests
listed on Schedule 1 to this Agreement and all rights of the
Pledgor to receive, directly or indirectly, moneys or any other
rights or benefits therefrom.
"Obligations": the collective reference to the unpaid principal
of and interest on (including, without limitation, interest
accruing at the then applicable rate provided in the Credit
Agreement after the maturity of the Loans and interest accruing
at the then applicable rate provided in the Credit Agreement
after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like
proceeding, relating to each Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such
proceeding) the Loans and all other obligations and liabilities
of the Borrowers to the Administrative Agent and the Lenders,
whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, the Credit Agreement,
any Notes, this Agreement, the other Loan Documents or any other
document made, delivered or given in connection with any of the
foregoing, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees
and disbursements of counsel to the Administrative Agent or to
the Lenders that are required to be paid by the Borrowers
pursuant to the terms of the Credit Agreement, this Agreement or
any other Loan Document).
"Partnerships": M.V. and Robinson.
"Partnership Agreements": the Limited Partnership Agreement of
Martha's Vineyard Cablevision, L.P., dated as of January 31,
1995, by and among U.S. Tele-Media Investment Company as the
General Partner and the Preferred Limited Partner, and Robert E.
Tudek and Everett I. Mundy, as the Limited Partners and the
Limited Partnership Agreement of Robinson/Plum Cablevision, L.P,
dated as of October 24, 1995, by and among Plato as the General
Partner and Northeast as the Limited Partner, and as the same may
be amended, supplemented or otherwise modified from time to time
in accordance with the Credit Agreement.
"Partnership Interest": as defined in Section 2 of this
Agreement.
"Pledged Collateral": as defined in Section 2 of this Agreement.
5. Grant of Security Interest; Non-Recourse. (a) As collateral
security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations, now existing or hereafter arising,
the Pledgor hereby pledges, assigns and transfers to the
Administrative Agent for the ratable benefit of the Lenders, and
grants to the Administrative Agent for the ratable benefit of the
Lenders, a continuing first priority security interest in any and
all of the following property now owned or at any time hereafter
acquired by the Pledgor, or in which the Pledgor may acquire any
right, title or interest (collectively, the "Pledged
Collateral"):
(i) any and all of its partnership interest in the Partnerships
as set forth in Schedule 1 attached hereto, including, without
limitation, all its rights, title and interest to participate in
the operation or management of such Partnerships and all its
rights to properties, assets, partnership interests and
distributions under such Partnership Agreements in respect of
such general or limited partnership interest (the "Partnership
Interest");
(ii) all Accounts arising out of the Partnership Agreements
in respect of the Pledgor's Partnership Interest;
(iii) all General Intangibles arising out of or constituted
by the Partnership Agreements in respect of the Pledgor's
Partnership Interest; and
(iv) to the extent not otherwise included, all Proceeds of
any and all of the foregoing.
This Agreement shall create a continuing security interest in the
Pledged Collateral which shall remain in effect until all the
Obligations, now existing or hereafter arising, shall have been
paid in full, the Commitments shall have been terminated and the
Credit Agreement and the Security Documents shall no longer be in
effect.
(b) The Pledgor shall not have any personal liability for
payment of the Obligations, and in any action or suit to collect
the Obligations the Administrative Agent and the Lenders shall
not seek any in personam judgment against the Pledgor or any
judgment for a deficiency but shall look solely to the security
interests hereunder and the collateral described herein for
payment of the Obligations. Nothing contained in this Section
shall be construed to impair the validity of the Obligations or
this Agreement or affect or impair in any way the right of the
Administrative Agent and the Lenders to exercise their rights and
remedies under the Credit Agreement, any Notes and any other Loan
Documents in accordance with their terms.
6. Rights of Administrative Agent; Limitations on Administrative
Agent's Obligations.
(a) Pledgor Remains Liable. Anything herein to the contrary
notwithstanding, the Pledgor shall remain liable under the
Partnership Agreements to observe and perform all the conditions
and obligations to be observed and performed by it thereunder,
all in accordance with and pursuant to the terms and provisions
thereof. The Administrative Agent shall not have any obligation
or liability by reason of or arising out of this Agreement or the
receipt by the Administrative Agent of any payment relating to
any Pledged Collateral pursuant hereto, nor shall the
Administrative Agent be obligated in any manner to perform any of
the obligations of the Pledgor under or pursuant to the
Partnership Agreements or any Account or General Intangible
related thereto, to make any payment, to make any inquiry as to
the nature or the sufficiency of any payment received by it or as
to the sufficiency of any performance by any party under any
thereof, to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts
which may have been assigned to it or to which it may be entitled
at any time or times.
(b) Proceeds. The Administrative Agent hereby authorizes the
Pledgor to collect the Accounts in respect of the Pledgor's
Partnership Interest. If required by the Administrative Agent at
any time after the occurrence and during the continuance of an
Event of Default, the Accounts in respect of the Pledgor's
Partnership Interest and any Proceeds of such Accounts, when and
if collected by the Pledgor, shall be forthwith deposited by the
Pledgor in the exact form received, duly endorsed by the Pledgor
to the Administrative Agent if required, in a special bank
account maintained by the Administrative Agent, subject to
withdrawal by the Administrative Agent only, as hereinafter
provided, and, until so turned over, shall be held by the Pledgor
in trust for the Administrative Agent, for the ratable benefit of
the Lenders, segregated from other funds of the Pledgor.
7. Representations and Warranties. The Pledgor hereby
represents and warrants that:
(a) Title; No Other Liens. Except for the Lien granted to the
Administrative Agent pursuant to this Agreement and other than as
may be permitted pursuant to the Credit Agreement, the Pledgor
owns each item of the Pledged Collateral free and clear of any
and all Liens or claims of others. No security agreement,
financing statement or other public notice with respect to all or
any part of the Pledged Collateral is on file or of record in any
public office, except such as may have been filed in favor of the
Administrative Agent pursuant to this Agreement or the other
Security Documents.
(b) Perfected First Priority Liens. Upon giving of appropriate
notices pursuant to Article 8 of the Code and in the form of
Exhibits A and B to this Agreement with respect to the
Partnership Interest and upon the filing of UCC-1 financing
statements required to perfect the security interest granted
hereunder in Accounts and General Intangibles arising out of the
Partnership Agreements in respect of the Pledgor's Partnership
Interests under the Uniform Commercial Code in effect in each
relevant jurisdiction, the Liens granted pursuant to this
Agreement shall constitute perfected first priority Liens on the
Pledged Collateral in favor of the Administrative Agent and shall
be enforceable as such against all creditors of and purchasers
from the Pledgor.
(c) Accounts. The Pledgor's residence and principal place of
business, and the place where the Pledgor keeps its records
concerning the Accounts, is 5 West 3rd Street, Coudersport,
Pennsylvania 16915.
8. Covenants. The Pledgor covenants and agrees with the
Administrative Agent that until the Obligations are paid in full,
the Commitments are terminated and the security interest granted
pursuant to this Agreement is released:
(a) Further Documentation; Pledge of Instruments. At any time
and from time to time, upon the written request of the
Administrative Agent, and at the sole expense of the Pledgor, the
Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further action as the
Administrative Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and
of the rights and powers herein granted, including, without
limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code in effect in any
jurisdiction with respect to the Liens created hereby. The
Pledgor also hereby authorizes the Administrative Agent to file
any such financing or continuation statement without the
signature of the Pledgor to the extent permitted by applicable
law. The Pledgor and the Administrative Agent agree that a
carbon, photographic or other reproduction of this Agreement or a
financing statement is sufficient as a financing statement. If
any amount payable under or in connection with any of the Pledged
Collateral shall be or become evidenced by any promissory note,
other Instrument or Chattel Paper, such note, Instrument or
Chattel Paper shall be immediately delivered to the
Administrative Agent, duly endorsed in a manner satisfactory to
the Administrative Agent, to be held as Pledged Collateral
pursuant to this Agreement.
(b) Indemnification. The Pledgor will pay, and save the
Administrative Agent and each Lender harmless from, any and all
liabilities, reasonable costs and expenses (including, without
limitation, legal fees and expenses) (i) with respect to, or
resulting from, any delay in paying, any and all excise, sales or
other taxes which may be payable or determined to be payable with
respect to any of the Pledged Collateral, (ii) with respect to,
or resulting from, any delay in complying with any Requirement of
Law applicable to any of the Pledged Collateral or (iii) in
connection with the grant and perfection of the security interest
contemplated by this Agreement, except for any such liabilities
which result from the gross negligence or wilful misconduct of
the Administrative Agent or such Lender as the case may be.
(c) Maintenance of Records. The Pledgor will keep and maintain
at its own cost and expense satisfactory and complete records of
the Pledged Collateral, including, without limitation, a record
of all payments received and all credits granted.
(d) Limitation on Liens on Pledged Collateral. The Pledgor will
not create, incur or permit to exist, will defend the Pledged
Collateral against, and will take such other action as is
necessary to remove, any Lien or claim on or to the Pledged
Collateral, other than the Liens created hereby and other than as
may be permitted pursuant to the Credit Agreement, and will
defend the right, title and interest of the Administrative Agent
in and to any of the Pledged Collateral against the claims and
demands of all Persons whomsoever.
(e) Further Identification of Pledged Collateral. The Pledgor
will furnish to the Administrative Agent from time to time
statements and schedules further identifying and describing the
Pledged Collateral and such other reports in connection with the
Pledged Collateral as the Administrative Agent may reasonably
request, all in reasonable detail.
(f) Changes in Locations, Name, etc. The Pledgor will not,
unless it shall give 30 days' written notice to such effect to
the Administrative Agent and any filings required under the
Uniform Commercial Code in effect in any affected jurisdictions
to maintain the perfected security interest granted pursuant to
this Agreement shall have been made, (i) change the location of
its chief executive office or principal place of business from
that specified in Section 4(c) or remove its books and records
from such location or (ii) change its name, identity or structure
to such an extent that any financing statement filed by the
Administrative Agent in connection with this Agreement would
become seriously misleading.
9. Administrative Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Pledgor hereby irrevocably constitutes and
appoints the Administrative Agent and any officer or agent
thereof, to the extent permitted under applicable law, with full
power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead
of the Pledgor and in the name of the Pledgor or in its own name,
from time to time in the Administrative Agent's discretion, for
the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to
secure the obligations and grant interests in the Pledged
Collateral as contemplated by this Agreement, and, without
limiting the generality of the foregoing, the Pledgor hereby
gives the Administrative Agent the power and right, on behalf of
the Pledgor, without notice to or assent by the Pledgor, to do
the following:
(i) upon the occurrence and during the continuance of any Event of
Default, to exercise all partnership rights, powers and
privileges with respect to the Partnership Interest to the same
extent as a limited partner under the Partnership Agreements;
(ii) upon the occurrence and during the continuance of any Event of
Default, in the name of the Pledgor or its own name, or
otherwise, to take possession of and endorse and collect any
checks, drafts, notes, acceptances or other instruments for the
payment of moneys due under (i) any Account, Instrument or
General Intangible owing to the Pledgor as a general partner
under the Partnership Agreements or (ii) for the payment of any
other moneys due to the Pledgor as a general partner under the
Partnership Agreements and to file any claim or to take any other
action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Administrative Agent for the purpose of
collecting any and all such moneys due under any Account,
Instrument, General Intangible or the Partnership Agreements
whenever payable;
(iii) to pay or discharge taxes and Liens levied or placed on the
Pledged Collateral; and
(iv) upon the occurrence and during the continuance of any Event of
Default, (a) to direct any party liable for any payment under any
of the Pledged Collateral to make payment of any and all moneys
due or to become due thereunder directly to the Administrative
Agent or as the Administrative Agent shall direct; (b) to ask for
or demand, collect, receive payment of and receipt for, any and
all moneys, claims and other amounts due or to become due at any
time in respect of or arising out of the Pledged Collateral; (c)
to sign and endorse any invoices, freight or express bills, bills
of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in
connection with any of the Pledged Collateral; (d) to commence
and prosecute any suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect the
Pledged Collateral or any part thereof and to enforce any other
right in respect of the Pledged Collateral; (e) to defend any
suit, action or proceeding brought against the Pledgor with
respect to the Pledged Collateral; (f) to settle, compromise or
adjust any suit, action or proceeding described in clause (e)
above and, in connection therewith, to give such discharges or
releases as the Administrative Agent may deem appropriate; and
(g) generally, to sell, transfer, pledge and make any agreement
with respect to or otherwise deal with any of the Pledged
Collateral as fully and completely as though the Administrative
Agent were the absolute owner thereof for all purposes, and to
do, at the Administrative Agent's option and the Pledgor's
expense, at any time, or from time to time, all reasonable acts
and things which the Administrative Agent deems necessary to
protect, preserve or realize upon the Pledged Collateral and the
Administrative Agent's Liens thereon and to effect the intent of
this Agreement, all as fully and effectively as the Pledgor might
do.
The Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. This power of
attorney is a power coupled with an interest and shall be
irrevocable.
(b) Other Powers. The Pledgor also authorizes the
Administrative Agent, at any time and from time to time, to
execute, in connection with the sale provided for in Section 8
hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Pledged Collateral.
(c) No Duty on Administrative Agent's Part. The powers
conferred on the Administrative Agent hereunder are solely to
protect the Administrative Agent's interests in the Pledged
Collateral and shall not impose any duty upon it to exercise any
such powers. The Administrative Agent shall be accountable only
for amounts that it actually receives as a result of the exercise
of such powers, and neither it nor any of its officers,
directors, employees or agents shall be responsible to any
Pledgor for any act or failure to act hereunder, except for its
or their gross negligence or willful misconduct.
10. Performance by Administrative Agent of Pledgor's
Obligations; Rights of Pledgor Prior to Event of Default. (a)
If the Pledgor fails to perform or comply with any of its
agreements contained herein and the Administrative Agent, as
provided for by the terms of this Agreement, shall itself perform
or comply, or otherwise cause performance or compliance, with
such agreement, the expenses of the Administrative Agent incurred
in connection with such performance or compliance, together with
interest thereon at the rate per annum set forth in subsection
2.9(c)(iii) of the Credit Agreement, shall be payable by the
Pledgor to the Administrative Agent on demand and shall
constitute Obligations secured hereby.
(b) Unless an Event of Default shall have occurred and be
continuing, the Pledgor shall be entitled to receive all
distributions made pursuant to the Partnership Agreements and
exercise all voting rights and take all action it is authorized
to take thereunder, provided that no distribution shall be made
which is prohibited by the Credit Agreement, the Partnership
Agreements or any of the other documents executed in connection
with the transactions contemplated hereby; and, provided further,
that no vote or other action taken shall impair any of the
Pledged Collateral provided to the Administrative Agent pursuant
to this Agreement.
11. Remedies; Rights Upon Default. (a) If an Event of Default
shall occur and be continuing, the Administrative Agent may
exercise in addition to all other rights and remedies granted to
it in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights
and remedies of a secured party under the Code. Without limiting
the generality of the foregoing, the Administrative Agent,
without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except the notice
specified below of time and place of public or private sale) to
or upon the Pledgor or any other Person (all and each of which
demands, presentment, protest, advertisements and notices are
hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Pledged Collateral, or
any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and
deliver said Pledged Collateral or any part thereof (or contract
to do any of the foregoing), in one or more parcels at public or
private sale or sales, at any exchange, broker's board or office
of the Administrative Agent or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent and any
Lender shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale
or sales, to purchase the whole or any part of said Pledged
Collateral so sold, free of any right or equity of redemption in
the Pledgor, which right or equity of redemption is hereby waived
or released. The Pledgor further agrees, at the Administrative
Agent's request, to assemble the Pledged Collateral and make it
available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at the
Pledgor's premises or elsewhere. The Administrative Agent shall
apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or
incidental to the care or safekeeping of any of the Pledged
Collateral or in any way relating to the Pledged Collateral or
the rights of the Administrative Agent hereunder, including,
without limitation, attorneys' fees and disbursements, to the
payment in whole or in part of the Obligations, in such order as
the Administrative Agent may elect, and only after such
application and payment in full of the Obligations and after the
payment by the Administrative Agent of any other amount required
by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Administrative Agent account
for the surplus, if any, to the Pledgor. To the extent permitted
by applicable law, the Pledgor waives all claims, damages, and
demands against the Administrative Agent arising out of the
repossession, retention or sale of the Pledged Collateral. If
any notice of a proposed sale or disposition of Pledged
Collateral shall be required by law, such notice shall be deemed
reasonably and properly given if given (effective upon dispatch)
in any manner provided in the Credit Agreement at least 20 days
before such sale or disposition.
(b) If an Event of Default shall occur and be continuing, the
Administrative Agent may (but need not), upon notice to the
Pledgor, exercise all voting and other rights of the Pledgor as a
limited or general partner of the Partnerships and exercise all
other rights as a limited or general partner provided under the
Partnership Agreements in respect of the Partnership Interest and
the Administrative Agent shall receive all permitted
distributions, if any, made for the account of the Pledgor as a
limited or general partner under the Partnership
Agreements.
12. Limitation on Administrative Agent's Duties in Respect of
Pledged Collateral. The Administrative Agent's sole duty with
respect to the custody, safekeeping and physical preservation of
any Pledged Collateral in its possession, under Section 9-207 of
the Code or otherwise, shall be to deal with it in the same
manner as the Administrative Agent deals with similar property
for its own account. Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon all or any part of the
Pledged Collateral or for any delay in doing so or shall be under
any obligation to sell or otherwise dispose of any Pledged
Collateral upon the request of the Pledgor or otherwise.
13. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Pledged Collateral
are irrevocable and powers coupled with an interest.
14. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Lender or the Pledgor to be effective
shall be in writing (including by facsimile or telecopy
transmission) and shall be deemed to have been duly given or made
(i) when delivered by hand or (ii) three days after being
deposited in the mail, postage prepaid or (iii) one Business Day
after being sent by priority overnight mail with a nationally
recognized overnight delivery carrier or (iv) if by telecopy when
received:
(a) if to the Administrative Agent or any Lender, at its address
or transmission number for notices; and
(b) if to any Pledgor, at its address or transmission number for
notices provided in subsection 9.2 of the Credit Agreement.
The Administrative Agent and the Pledgor may change their
addresses and transmission numbers for notices by notice in the
manner provided in this Section.
15. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
16. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
17. No Waiver; Cumulative Remedies. The Administrative Agent
shall not by any act (except pursuant to the execution of a
written instrument pursuant to Section 15 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Default or
Event of Default or in any breach of any of the terms and
conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any
Lender, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of
any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the
Administrative Agent or any Lender would otherwise have on any
future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
18. Waivers and Amendments; Successors and Assigns. None of the
terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument
executed by the Pledgor and the Administrative Agent, provided
that any provision of this Guarantee may be waived by the
Administrative Agent and the Lenders in a letter or agreement
executed by the Administrative Agent or by telecopy or facsimile
transmission from the Administrative Agent. This Agreement shall
be binding upon the successors and assigns of the Pledgor and
shall inure to the benefit of the Administrative Agent, for the
ratable benefit of the Lenders, and the successors and assigns of
the Administrative Agent and the Lenders, provided that the
Pledgor may not assign its rights or obligations under this
Agreement without the prior written consent of the Administrative
Agent and any such purported assignment shall be null and void.
19. FCC Approval. Notwithstanding anything to the contrary
contained herein or in the other Loan Documents, the
Administrative Agent will not take any action (including the
exercise of voting rights by the Administrative Agent with
respect to the Partnership Interest) pursuant to this Agreement,
the Credit Agreement or any other Loan Document that would
constitute or result in any assignment of any FCC License or
Franchise or any change of control of any Loan Party without
first obtaining the prior approval of the FCC or other state or
Governmental Authority, if, under the existing law, such
assignment of any FCC License or Franchise or change of control
would require the prior approval of the FCC or other state or
Governmental Authority. Prior to the exercise by the
Administrative Agent of any power, right, privilege or remedy
pursuant to this Agreement which requires any consent, approval,
recording, qualification or authorization of any Governmental
Authority or instrumentality, the Pledgor will execute and
deliver, or will cause the execution and delivery of, all
applications, certificates, instruments and other documents and
papers that the Administrative Agent may be required to obtain
for such governmental consent, approval, recording, qualification
or authorization. Without limiting the generality of the
foregoing, the Pledgor will use its best efforts upon the
reasonable request of the Administrative Agent to obtain from the
appropriate governmental authorities the necessary consents and
approvals, if any (i) for the granting to the Administrative
Agent pursuant hereto of the security interests provided for in
this Agreement to the extent, if any, such security interests may
be granted under existing statutes or regulations and (ii) for
the assignment or transfer of such authorizations, licenses and
permits to the Administrative Agent or its designee upon or
following acceleration of the payment of the Loans in accordance
with the provisions of the Credit Agreement.
20. Submission To Jurisdiction; Waivers. The Pledgor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-
exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form
of mail), postage prepaid, to the Pledgor at its address provided
in subsection 9.2 of the Credit Agreement or at such other
address of which the Administrative Agent shall have been
notified pursuant to Section 11 hereof;
(d) agrees that nothing herein shall affect the right to effect
service or process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive
damages.
21. WAIVERS OF JURY TRIAL. THE PLEDGOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
TO WHICH IT IS A PARTY AND FOR ANY COUNTERCLAIM THEREIN.
22. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PLEDGOR HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be
duly executed and delivered as of the date first above written.
PLATO COMMUNICATIONS, INC.
By:_________________________
Name:
Title:
SCHEDULE 1
DESCRIPTION OF PARTNERSHIP INTERESTS
1) All limited and general partnership interests in the
Partnerships held by the Pledgor from time to time.
EXHIBIT A
Transaction Statement
______ , 1995
To: Plato Communications, Inc.
3 West Third Street
Coudersport, PA 16915
Attention: ___________________
and
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Attention: Mr. John Huber
Managing Director
This statement is to advise you that a pledge of the following
uncertificated securities has been registered in the name of
Chemical Bank, as Administrative Agent:
1. Uncertificated Security: All [limited] [general] partnership
interests of Plato Communications, Inc., in [Robinson/Plum]
[Martha's Vineyard] Cablevision, L.P.
2. Registered Owner:
Plato Communications, Inc.
3 West Third Street
Coudersport, PA 16915
Attention: ___________________
Taxpayer Identification Number: _____________
3. Registered Pledgee:
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Attention: Mr. John Huber
Managing Director
Taxpayer Identification Number: 13-4994650
4. There are no liens or restrictions of [Robinson/Plum] [Martha's
Vineyard] Cablevision, L.P., and no adverse claims to which the
uncertificated security is or may be subject known to Plato
Communications, Inc.
5. The pledge was registered on ______ __, 1995.
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEES
AS OF THE TIME OF ITS ISSUANCE. DELIVERY OF THIS STATEMENT, OF
ITSELF, DOES NOT CONFER ANY RIGHTS ON THE RECIPIENT. THIS
STATEMENT IS NEITHER A NEGOTIABLE INSTRUMENT NOR A SECURITY.
Very truly yours,
[NAME OF PARTNERSHIP]
By: [NAME OF GENERAL PARTNER],
its General Partner
By:
Title:
EXHIBIT B
______ , 1995
To: [ADDRESS]
You are hereby instructed to register the pledge of the following
uncertificated security as follows:
All [limited] [general] partnership interests of the undersigned
in [Robinson/Plum] [Martha's Vineyard] Cablevision, L.P.
Pledgor Pledgee
Plato Communications, Inc. Chemical Bank
3 West Third Street 270 Park Avenue
Coudersport, PA 16915 New York, N.Y. 10017
Attention: __________________ Attention: Mr. John Huber
Managing Director
Very truly yours,
[NAME OF PARTNERSHIP]
By: [NAME OF GENERAL PARTNER],
its General Partner
By:
Title:
EXHIBIT C TO
CREDIT AGREEMENT
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
Pursuant to subsection 5.2(b) of the Credit Agreement, dated as
of October 27, 1995 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; terms defined
therein being used herein as therein defined), among Plato
Communications, Inc., a Delaware corporation ("Plato"), Northeast
Cable, Inc., a Delaware corporation ("Northeast"), Martha's
Vineyard Cablevision, L.P., a Delaware limited partnership
("MV"), Robinson/Plum Cablevision, L.P., a Pennsylvania limited
partnership ("Robinson", together with Plato, Northeast and MV,
the "Borrowers", and individually, each a "Borrower"), the banks
and other financial institutions from time to time parties
thereto (the "Lenders") and Chemical Bank, as administrative
agent for the Lenders, the undersigned, do hereby certify that
(i) to the best of the undersigned's knowledge, the Borrowers
have observed or performed all of their covenants and other
agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents to be observed, performed
or satisfied by it, and that the undersigned has obtained no
knowledge of any Default or Event of Default [except as specified
in this certificate], and (ii) as of the date of the financial
statements being delivered in connection herewith, the Borrower
was in compliance with the covenants set forth in subsections
6.1, 6.6(a), 6.7 and 6.16 of the Credit Agreement, and that the
calculations of such covenant compliance set forth on Annex A
hereto are based upon such financial statements and are true and
correct.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this certificate as of the day and year set forth
below.
PLATO COMMUNICATIONS, INC.
By:
Title:
NORTHEAST CABLE, INC.
By:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: PLATO COMMUNICATIONS, INC.,
its General Partner
By:
Title:
MARTHA'S VINEYARD CABLEVISION, L.P.
By: U.S. TELE-MEDIA INVESTMENT COMPANY,
its General Partner
By:
Name:
Title:
Date:<PAGE>
ANNEX A TO
COMPLIANCE CERTIFICATE
VI. SUBSECTION 6.1(a) - TOTAL LEVERAGE RATIO
Total Leverage Ratio = Total Funded Debt/Annualized Operating
Cash Flow
= ______________ /_________________
Must not exceed: 6.25:1.00
Supporting Calculations:
A. Calculation of Total Funded Debt:
Indebtedness outstanding in respect of the Loans____________
B. Calculation of Annualized Operating Cash Flow:
1. Operating Cash Flow - Operations:
Net Income____________
plus Interest Expense____________
plus Management Fees____________
plus Depreciation____________
plus Amortization____________
plus Income Taxes____________
plus Other non-cash expenses____________
minus Non-cash Income, Gains and Fees
minus Non-cash Fees, interest income and
dividends and distributions from Affiliates ____________
minus Cash Fees, interest income and
dividends and distributions from Affiliates
in Excess of 10% of Operating Cash Flow
for Period____________
2. Operating Cash Flow - Acquisitions during period:
Net Income____________
plus Interest Expense____________
plus Management Fees____________
plus Depreciation____________
plus Amortization____________
plus Income Taxes____________
plus Other non-cash expenses____________
minus Non-cash Income, Gains and Fees
minus Non-cash Fees, interest income and
dividends and distributions from Affiliates ____________
minus Cash Fees, interest income and
dividends and distributions from Affiliates
in Excess of 10% of Operating Cash Flow
for Period____________
3. Operating Cash Flow - Asset Sales during period:
Net Income____________
plus Interest Expense____________
plus Management Fees____________
plus Depreciation____________
plus Amortization____________
plus Income Taxes____________
plus Other non-cash expenses____________
minus Non-cash Income, Gains and Fees
minus Non-cash Fees, interest income and
dividends and distributions from Affiliates ____________
minus Cash Fees, interest income and
dividends and distributions from Affiliates
in Excess of 10% of Operating Cash Flow
for Period____________
Operating Cash Flow (OCF) = (1) + (2) -
(3) ____________
Annualized Operating Cash Flow = OCF
multiplied by 4 ____________
VII. SECTION 6.1(b) - INTEREST COVERAGE
Interest Coverage Ratio = Operating Cash Flow/Interest Expense
= ______________/_________________
Must not be less than: 1.60:1.00
Supporting Calculations:
A.Calculation of Operating Cash Flow
(see 1(B) above): ____________
B.Calculation of Interest Expense:
Interest Expense on Indebtedness Outstanding
during the Period in respect of the Loans ____________
VIII. SUBSECTION 6.6(a) - ASSET SALES
Aggregate of the System Cash Flow Percentage of Systems Sold
During Period Covered by Financial Statements delivered with this
Compliance Certificate:1)
[Aggregate System Cash Flow Percentage =(Operating Cash Flow from
Systems Sold for Last Four Quarter Period Ended Prior to Sale of
such Systems/Operating Cash Flow from Operations for such Period)
multiplied by 100]
= ____%
Must not be more than: 15%
Supporting Calculations for each System Sold:
A. Calculation of Operating Cash Flow Attributable to [_______]
For Four Quarter Period Prior to such Sale:
Operating Cash Flow of [_______]:
Net Income____________
plus Interest Expense____________
plus Management Fees____________
plus Depreciation____________
plus Amortization____________
plus Income Taxes____________
plus Other non-cash expenses____________
minus Fees, interest income and dividends and
distributions from Affiliates ____________
plus Fees, interest income and dividends and
distributions from Affiliates to extent does
not exceed 10% of Operating Cash Flow____________
1) Include calculation for each System sold during the relevant
period
Operating Cash Flow Attributable to System:____________
B. Operating Cash Flow from Operations For Four Quarter Period
Prior to such Sale:
Net Income____________
plus Interest Expense____________
plus Management Fees____________
plus Depreciation____________
plus Amortization____________
plus Income Taxes____________
plus Other non-cash expenses____________
minus Fees, interest income and dividends and
distributions from Affiliates ____________
plus Fees, interest income and dividends and
distributions from Affiliates to extent does
not exceed 10% of Operating Cash Flow____________
Operating Cash Flow for Period:____________
IX. SUBSECTION 6.7(b) - RESTRICTED PAYMENTS
Restricted Payments to Chelsea pursuant to
subsection 6.7(a) Amount Permitted $20,000,000
Restricted Payment by a Subsidiary to a Borrower
pursuant to subsection 6.7(b), which complies
with proviso therein___________
Other Restricted Payments:
Capital Contributions to Borrower
after Closing Date2)____________
Less: Management Fees paid after Closing Date____________
Total Other Restricted Payments made
after Closing Date____________
2) Attach a schedule detailing the dates and amounts of each
such Capital Contribution
X. SUBSECTION 6.16 - MANAGEMENT FEES
Total Management Fees Paid by the Borrower During
Most Recent Fiscal Quarter: ____________
5% of Gross Revenues of the Borrowers For Such
Fiscal Quarter____________
Total Management Fees Paid during Default Period,
if Applicable.____________
EXHIBIT D TO
CREDIT AGREEMENT
[FORM OF MANAGEMENT SUBORDINATION AGREEMENT]
SUBORDINATION AGREEMENT dated as of October 27, 1995 (as
amended, supplemented or otherwise modified from time to
time, this "Agreement"), among PLATO COMMUNICATIONS, INC.,
a Delaware corporation ("Plato"), NORTHEAST CABLE, INC.,
a Delaware corporation ("Northeast"), MARTHA'S VINEYARD
CABLEVISION, L.P., a Delaware limited partnership,
ROBINSON/PLUM CABLEVISION, L.P., a Pennsylvania limited
partnership ("Robinson", together with Plato, Northeast,
MV and, if it shall become a party hereto pursuant to
Section 11, CVA, the "Borrowers", and individually, each a
"Borrower"), each Subsidiary of each of the Borrowers party
hereto (together with the Borrowers, the "Companies"),
ADELPHIA COMMUNICATIONS CORPORATION, a Delaware corporation
("ACC"), ADELPHIA CABLE T.V., INC., a Pennsylvania corporation,
and ADELPHIA CABLEVISION, INC., a Pennsylvania corporation
(together, Adelphia Cable T.V., Inc., Adelphia Cablevision, Inc.
and ACC, the "Managers"), and CHEMICAL BANK, as Administrative
Agent for the several banks and other financial institutions
(collectively, the "Lenders") from time to time parties to the
Credit Agreement, dated as of October 27, 1995 (as amended,
supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrowers, the Lenders and
the Administrative Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders
have severally agreed to make Loans to the Borrowers upon the
terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the Management Services Agreement,
dated as of January 1, 1995, by and between Plato and ACC, the
Management Services Agreement for Managed Systems, dated as of
January 1, 1995, by and between Adelphia Cable T.V., Inc. and
Northeast, the Management Services Agreement by and between
Adelphia Cablevision, Inc. and MV and the Management Services
Agreement for Managed Systems, dated as of the date of the
Acquisition (as defined in the Credit Agreement) (collectively,
the "Management Agreements"), the Managers have agreed to render
management, supervisory and other services to the Borrowers and
their Subsidiaries, and each Borrower has agreed to pay
Management Fees (as defined in the Credit Agreement) to the
Managers as provided in the Management Agreement; and
WHEREAS, it is a condition precedent to the effectiveness
of the Credit Agreement and the obligations of the Lenders to
make their respective Loans to the Borrowers under the Credit
Agreement that each Manager shall have agreed to subordinate its
rights to receive payment of Management Fees under its respective
Management Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and to
induce the Administrative Agent and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their
respective Loans to the Borrowers, each Company and each Manager
hereby agrees with the Administrative Agent, for the ratable
benefit of the Lenders, as follows:
1. Definitions. (a) Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
(b) For purposes of this Agreement, the following terms
shall have the following meanings:
"Managed Systems": as set forth in the Management
Agreements.
"Reorganization": with respect to any Company, any
distribution of the assets of such Company upon any
voluntary or involuntary dissolution, winding-up, total or
partial liquidation or reorganization, or bankruptcy,
insolvency, receivership or other statutory or common law
proceedings or arrangements involving such Company or the
readjustment of its liabilities or any assignment for the
benefit of creditors or any marshalling of its assets or
liabilities.
"Senior Indebtedness": the collective reference to the
unpaid principal of and interest on (including, without
limitation, interest accruing at the then applicable rate
provided in the Credit Agreement after the maturity of the
Loans and interest accruing at the then applicable rate
provided in the Credit Agreement after the filing of any
petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to
each Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the
Loans and all other obligations and liabilities of the
Borrowers to the Administrative Agent and the Lenders,
including, without limitation, any commitment fees, whether
direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Credit Agreement,
any Notes, this Agreement, the other Loan Documents or any
other document made, delivered or given in connection with
any of the foregoing, in each case whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to
the Administrative Agent or to the Lenders that are required
to be paid by the Borrowers pursuant to the terms of the
Credit Agreement, this Agreement or any other Loan
Document).
"Subordinated Indebtedness": Management Fees and all
other amounts from time to time payable to the Managers
under the Management Agreements and any and all other
amounts payable in connection therewith.
2. Agreement to Subordinate. Each Company, for itself
and its successors and assigns, covenants and agrees, and each
Manager, as a holder of Subordinated Indebtedness, for itself and
its successors and assigns, hereby agrees, that the payment of
the Subordinated Indebtedness is and shall be expressly
"subordinate and junior in right of payment" (as such phrase is
defined in Section 3) to the prior payment in full of all Senior
Indebtedness to the extent and in the manner hereinafter set
forth.
3. Meaning of Subordinate and Junior in Right of Payment.
(a) "Subordinate and junior in right of payment" shall mean that
no part of the Subordinated Indebtedness shall have any claim to
the assets of any Company on a parity with or prior to the claim
of the Senior Indebtedness, whether such claim is made in
connection with a Reorganization or otherwise. Unless and until
the Senior Indebtedness shall have been paid in full and the
Commitments shall have been terminated, no Manager will take,
demand or receive from any Company, and no Company will make,
give or permit, directly or indirectly, by set-off, redemption,
purchase or in any other manner, (i) any payment of the whole or
any part of the Subordinated Indebtedness, (ii) any security or
collateral for the whole or any part of the Subordinated
Indebtedness or (iii) any guarantee of the whole or any part of
the Subordinated Indebtedness; provided, that, subject to Section
4 below, each Company may make and the Managers may receive
Management Fees permitted to be paid pursuant to subsection 6.16
of the Credit Agreement. Each Company expressly agrees that it
will not make any payment of any of the Subordinated
Indebtedness, or take any other action, in contravention of the
provisions of this Agreement.
(b) For purposes of this Agreement, the Senior
Indebtedness shall not be deemed to have been paid in full until
and unless the Lenders shall have indefeasibly received payment
in full of the principal of, interest on and costs and expenses
and all other amounts then payable in connection with the Senior
Indebtedness in cash. The subordination provisions in this
Agreement are for the benefit of and shall be enforceable
directly by the Lenders, and each Lender shall be deemed to have
acquired such Senior Indebtedness in reliance upon this
Agreement. The Administrative Agent shall have the right to act
on behalf of the Lenders pursuant to this Agreement in enforcing
the rights of the Lenders, and in receiving payments and other
distributions to be made, under this Agreement.
(c) In the event that, notwithstanding the provisions of
paragraph (a) of this Section 3, any Manager shall have received
any payment or distribution with respect to the Subordinated
Indebtedness contrary to the foregoing provisions of such
paragraph, then and in any such event such payment or
distribution shall be held in trust for the benefit of, and shall
be immediately paid or delivered by any such Manager to, the
Administrative Agent to be used to prepay Loans outstanding under
the Credit Agreement.
4. Subordinated Indebtedness Subordinated to Prior
Payment of All Senior Indebtedness on Reorganization or Sale of
Any Company. Upon any payment or distribution of all or any of
the assets or securities of any Company of any kind or character,
whether in cash, property or securities, whether made pursuant to
a Reorganization relative to such Company or any of its
properties, or a distribution of proceeds of or upon sale of all
or any part of such Company or any of its subsidiaries or any of
their respective assets, then in such event:
(a) the Lenders shall be entitled to receive payment in
full as provided herein of all amounts due or to become due
on or in respect of all Senior Indebtedness, before any
payment is made on account of or applied to the Subordinated
Indebtedness;
(b) any payment or distribution of assets of such Company
of any kind or character, whether in cash, property or
securities (including any payment or other distribution that
may be payable by reason of the payment of any other
Indebtedness of such Company being subordinated to the
payment of Subordinated Indebtedness), to which the holders
of Subordinated Indebtedness would be entitled except for
the provisions of this Agreement, shall be paid or delivered
by any debtor, custodian, receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such
payment or distribution, directly to the Administrative
Agent for the benefit of the Lenders, for application to the
payment or prepayment of all such Senior Indebtedness
remaining unpaid to the extent necessary to pay all such
Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to the Lenders; and
(c) in the event that, notwithstanding the foregoing
provisions of this Section 4, any Manager shall have
received any payment or distribution with respect to
Subordinated Indebtedness contrary to the foregoing
provisions of this Section 4, then and in such event such
payment or distribution shall be held in trust for the
benefit of, and shall be immediately paid or delivered by
such holder of Subordinated Indebtedness to the
Administrative Agent for the benefit of the Lenders for
application to the payment or prepayment of all Senior
Indebtedness remaining unpaid, to the extent necessary to
pay all such Senior Indebtedness in full after giving effect
to any concurrent payment or distribution to the Lenders.
In the event of a Reorganization, if any Manager has not
filed any claim, proof of claim or other instrument of similar
character with respect to the Subordinated Indebtedness within 20
days before the expiration of the time to file the same, the
Administrative Agent or any Lender may, as an attorney-in-fact
for any such Manager, file any claim, proof of claim or other
such instrument of similar character on behalf of, and any such
Manager hereby appoints the Administrative Agent and any such
Lender as an attorney-in-fact for any such Manager, to so file
any claim, proof of claim or such other instrument of similar
character.
Upon any distribution of assets of any Company referred to
in this Agreement, each Manager shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction
in which a Reorganization is pending for the purpose of
ascertaining the identity of the Lenders, the amount of Senior
Indebtedness, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Agreement.
Nothing in the foregoing sentence shall limit the right of the
Lenders to receive payment in full of the Senior Indebtedness in
accordance with this Agreement.
5. Managers to be Subrogated to Rights of Holders of
Senior Indebtedness. Subject to the payment in full of all
Senior Indebtedness, each Manager shall be subrogated to the
rights of the Lenders to receive payments or distributions of
assets of the Borrowers made on account of the Senior
Indebtedness until all amounts payable in respect of the
Subordinated Indebtedness shall be paid in full, and for purposes
of such subrogation, no payment or distribution to the Lenders of
assets, whether in cash, property or securities, distributable to
the Lender under the provisions hereof to which any Manager would
be entitled except for the provisions of this Agreement, and no
payment pursuant to the provisions of this Agreement to the
Lenders by any Manager shall, as between the relevant Company,
its creditors other than Lenders, and any such Manager, be deemed
to be a payment by such Company to or on account of such Senior
Indebtedness, it being understood that the provisions of this
Agreement are, and are intended, solely for the purpose of
defining the relative rights of the Managers, on the one hand,
and the Lenders, on the other hand.
6. Obligations of Each Company Unconditional. (1)
Nothing contained in this Agreement is intended to or shall
relieve the obligations of any Company to the Lenders or the
Manager to pay any amount in respect of the Senior Indebtedness
or the Subordinated Indebtedness, as the case may be, as and when
such amount shall become due and payable in accordance with the
terms thereof, or to affect the relative rights of the Lenders or
the Managers, on the one hand, and the other creditors of such
Company, on the other hand. All rights and interests of the
Lenders hereunder, and all agreements and obligations of each
Company and each Manager, shall remain in full force and effect
irrespective of:
(i) any lack of validity or enforceability of any Loan
Document or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Senior
Indebtedness, or any amendment or waiver of or any consent
to departure from any provision of the Credit Agreement or
any other Loan Document;
(iii) any exchange, release or nonperfection of any
security interest in any collateral, or any release or
amendment or waiver of or consent to departure from any
guarantee, for all or any of the Senior Indebtedness; or
(iv) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, any
Company in respect of the Senior Indebtedness, or of any
Company or any Manager in respect of this Agreement.
(2) Nothing contained in this Agreement shall affect the
obligation of any Company to make, or prevent any Company from
making, at any time, payment of any amount in respect of the
Senior Indebtedness. Nothing contained in this Agreement shall,
except as set forth in Sections 3 and 4, affect the obligation of
any Company to make, or prevent any Company from making, at any
time, payment of any amount in respect of Subordinated
Indebtedness.
7. No Other Beneficiaries of Subordination. This
Agreement and the subordination provisions contained herein are
intended only for the benefit of the holders of Senior
Indebtedness and no other creditor of any Company. No Company
will publish or give to any creditor or prospective creditor of
such Company any copy, statement or summary (or acquiesce in the
publication or giving of any such copy, statement or summary) as
to the subordination of the rights of the Managers without also
stating or causing to be stated (in a conspicuous manner in the
case of any document) that such subordination is solely for the
benefit of the holders of Senior Indebtedness and not for the
benefit of any other creditor of such Company or such Company.
8. Rights of Holders of Senior Indebtedness Not to be
Impaired. No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or
omission in good faith by any such holder, or by any
noncompliance by any Company with the terms and provisions and
covenants herein regardless of any knowledge thereof any such
holder of Senior Indebtedness may have or otherwise be charged
with.
9. Legend. Each Company and each Manager shall cause
each Promissory Note issued by or to it representing or
evidencing Subordinated Indebtedness to have affixed upon it a
legend, including in connection with the issuance of any new or
replacement Promissory Note with respect to the transfer of such
promissory Note or the reduction of the principal amount thereof,
which reads substantially as follows:
"This instrument is subject to the Subordination
Agreement, dated as of October 27, 1995, as amended,
supplemented or otherwise modified from time to time among
Plato Communications, Inc., a Delaware corporation,
Northeast Cable, Inc., a Delaware corporation, Martha's
Vineyard Cablevision, L.P., a Delaware limited partnership,
Robinson/Plum Cablevision, L.P., a Pennsylvania limited
partnership and, if it shall become a party as provided in
the Subordination Agreement, CVA, each subsidiary of each
Borrower which is a party thereto, Adelphia Communications
Corporation, a Delaware corporation, Adelphia Cable T.V.,
Inc., a Pennsylvania corporation, Adelphia Cablevision,
Inc., a Pennsylvania corporation, and Chemical Bank, as
Administrative Agent, for the several banks and other
financial institutions (collectively, the "Lenders") from
time to time parties to the Credit Agreement, dated as of
October 27, 1995, among the Borrowers, the Lenders and the
Administrative Agent."
10. Representations and Warranties. Each Manager hereby
represents and warrants that:
(i) it has the power and authority and the legal right to
execute and deliver, and to perform its obligations under,
this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance of this
Agreement;
(ii) this Agreement constitutes a legal, valid and
binding obligation of such Manager enforceable in accordance
with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
the enforcement of creditors' rights generally, general
equitable principles and an implied covenant of good faith
and fair dealing;
(iii) the execution, delivery and performance of this
Agreement will not violate any provision of any Requirement
of Law applicable to it or any of its Contractual
Obligations;
(iv) no consent or authorization of, filing with, or
other act by or in respect of, any arbitrator or
Governmental Authority and no consent of any other Person
(including, without limitation, any partner, stockholder or
creditor of such Manager), is required in connection with
the execution, delivery, performance, validity or
enforceability of this Agreement; and
(v) no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending
or, to its knowledge, threatened by or against such Manager
with respect to this Agreement.
11. New Borrower. Each party hereto agrees that if CVA
shall become a Borrower under the Credit Agreement in accordance
with the provisions of Section 9.16 thereof, CVA shall
automatically become a party hereto as a Borrower to the same
extent as if originally a party hereto.
12. Successors; Continuing Effect. This Agreement is
being entered into for the benefit of, and shall be binding upon,
the Lenders and the Managers, and their respective successors and
assigns, including subsequent holders of Senior Indebtedness, and
the term "holders of Senior Indebtedness" shall include any such
subsequent or additional holder of Senior Indebtedness, wherever
the context permits, provided that no Manager shall transfer or
assign any of its rights with respect to Subordinated
Indebtedness to any Person other than one of its Affiliates which
has become a Manager hereunder in accordance with Section 21, and
which has executed a Supplement in the form of Exhibit A hereto
agreeing to be bound by the terms of this Agreement.
13. Further Assurances. Each Company and each Manager
will, at their own expense and at any time and from time to time,
promptly execute and deliver all further instruments and
documents, and take all further action, that the Administrative
Agent may reasonably request, in order to perfect or otherwise
protect any right or interest granted or purported to be granted
hereby or to enable the Administrative Agent and the Lenders to
exercise and enforce their rights and remedies hereunder.
14. Expenses. Each Company and each Manager jointly and
severally agrees to pay to the Administrative Agent, upon demand,
the amount of any and all reasonable expenses, including, without
limitation, the reasonable fees and expenses of counsel for the
Administrative Agent, which the Administrative Agent and the
Lenders may incur in connection with the exercise or enforcement
of any of their rights or interests vis-a-vis such Company or
such Manager.
15. Notices; Amendments etc. (a) All notices, requests
and demands to or upon the Administrative Agent, any Company or
any Manager to be effective shall be in writing (including by
facsimile or telecopy transmission) and shall be deemed to have
been duly given or made (1) when delivered by hand or (2) three
days after being deposited in the mail, postage prepaid or (3)
one Business Day after being sent by priority overnight mail with
a nationally recognized overnight delivery carrier or (4) if by
telecopy or facsimile, when received:
(i) if to the Administrative Agent, the Borrowers or ACC,
at their addresses or transmission numbers for notices provided
in subsection 9.2 of the Credit Agreement;
(ii) if to any Company (other than the Borrowers), at its
address or transmission numbers for notices provided in Schedule
3.15 to the Credit Agreement; and
(iii) if to any Manager, at its address or transmission
number for notices set forth under its signature below.
The Administrative Agent, each Company and any Manager may
change their addresses and transmission numbers for notices by
notice in the manner provided in this Section.
(b) None of the terms or provisions of this Agreement may
be waived, amended, supplemented or otherwise modified except by
a written instrument executed by the Companies, the Managers and
the Administrative Agent, provided that any provision of this
Agreement may be waived by the Administrative Agent and the
Lenders in a letter or agreement executed by the Administrative
Agent or by telecopy or facsimile transmission from the
Administrative Agent. Any such amendment or waiver shall be
binding upon the Lenders, each Company and each Manager and their
successors and assigns.
16. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction, shall, as to
such jurisdiction, be ineffective to the extent of such
prohibition or invalidity without invalidating the remaining
portions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
17. Submission to Jurisdiction. Each Company and each
Manager hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement or for recognition and
enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be brought in
such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in
any such court or that such action or proceeding was brought in
an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form
of mail), postage prepaid, to it at its addresses set forth in
Section 15 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction.
18. WAIVER OF JURY TRIAL. EACH COMPANY, EACH MANAGER AND THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
19. Entire Agreement; Governing Law. This Agreement
embodies the entire agreement and understanding of the parties
hereto regarding the subject matter hereof. THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
20. Counterparts. This Agreement may be executed in any
number of counterparts, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together
shall constitute one agreement.
21. Replacement Managers. Any Affiliate of any Manager
may, with the approval of the Required Lenders,
become a "Manager" under this Agreement by executing and
delivering to the Administrative Agent a Supplement to this
Agreement in the form attached hereto as Exhibit A. Any such
Affiliate shall thereafter be deemed to be a "Manager" for all
purposes under this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be duly executed and delivered by their duly
authorized officers on the date and year first above written.
CHEMICAL BANK, as Administrative Agent
By:____________________________
Name:
Title:
ADELPHIA COMMUNICATIONS CORPORATION
By: ___________________________
Name:
Title:
Address for Notices:
5 West Third Street
Coudersport, Pennsylvania 16915
Telecopy: (814) 274-6586
NORTHEAST CABLE, INC.
By:___________________________
Name:
Title:
PLATO COMMUNICATIONS, INC.
By:___________________________
Name:
Title:
MARTHA'S VINEYARD CABLEVISION, L.P.
By: U.S. TELE-MEDIA INVESTMENT
COMPANY,
its Managing General Partner
By:______________________
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: PLATO COMMUNICATIONS, INC.
By:______________________
Name:
Title:
ADELPHIA CABLE T.V., INC.
By:______________________
Name:
Title:
Address for Notices:
ADELPHIA CABLEVISION, INC.
By:______________________
Name:
Title:
Address for Notices:
<PAGE>
EXHIBIT A TO
SUBORDINATION AGREEMENT
[FORM OF SUPPLEMENT
TO MANAGEMENT SUBORDINATION AGREEMENT]
SUPPLEMENT, dated as of _______ __, 1995, to the
Subordination Agreement, dated as of October 27, 1995 (as
amended, supplemented or otherwise modified from time to time,
the "Agreement"), among PLATO COMMUNICATIONS, INC., a Delaware
corporation ("Plato"), NORTHEAST CABLE, INC., a Delaware
corporation ("Northeast"), MARTHA'S VINEYARD CABLEVISION, L.P., a
Delaware limited partnership, ROBINSON/PLUM CABLEVISION, L.P., a
Pennsylvania limited partnership ("Robinson", together with
Plato, Northeast and MV, the "Borrowers", and individually, each
a "Borrower"), each subsidiary of each Borrower party thereto,
Adelphia Communications Corporation, a Delaware corporation
("ACC"), ADELPHIA CABLE T.V., INC., a Pennsylvania corporation
and ADELPHIA CABLEVISION, INC., a Pennsylvania corporation
(collectively, the "Managers"), and CHEMICAL BANK, as
Administrative Agent for the several banks and other financial
institutions (collectively, the "Lenders") from time to time
parties to the Credit Agreement, dated as of October 27, 1995 (as
amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Borrowers, the Lenders and the
Administrative Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders
have severally agreed to make Loans (as defined in the Credit
Agreement) to the Borrowers upon the terms and subject to the
conditions set forth therein; and
WHEREAS, _______________ (the "New Manager") wishes to
become a "Manager" under the ________________ Management
Agreement; and
WHEREAS, it is a condition precedent to the New Manager
becoming a "Manager" under the _______________ Management
Agreement that it shall have executed and delivered this
Supplement;
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by all of the
provisions of the Agreement applicable to a Manager
thereunder and agrees that it shall, on the date this
Supplement is accepted by the Administrative Agent, become a
Manager, for all purposes of the Agreement to the same
extent as if originally a party thereto with the
representations and warranties contained therein being
deemed to be made by the undersigned as of the date hereof.
Terms defined in the Agreement shall have their defined
meanings when used herein.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this
Supplement to be executed and delivered by a duly authorized
officer on the date first above written.
[INSERT NAME OF NEW MANAGER]
By:_______________________________
Name:
Title:
ACKNOWLEDGED AND ACCEPTED
this __ day of ______ 199_
CHEMICAL BANK, as Administrative Agent
By:___________________________________
Name:
Title:
EXHIBIT E TO
CREDIT AGREEMENT
[FORM OF BORROWING CERTIFICATE]
BORROWING CERTIFICATE
Pursuant to subsection 4.1(d) of the Credit Agreement, dated as
of October [__], 1995 (as the same may be amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"),
among PLATO COMMUNICATIONS, INC., a Delaware corporation
("Plato"), NORTHEAST CABLE, INC., a Delaware corporation
("Northeast"), MARTHA'S VINEYARD CABLEVISION, L.P., a Delaware
limited partnership, ROBINSON/PLUM CABLEVISION, L.P., a
Pennsylvania limited partnership ("Robinson", together with
Plato, Northeast and MV, the "Borrowers", and individually, each
a "Borrower"), the several banks and other financial institutions
from time to time parties thereto (collectively, the "Lenders"),
CHEMICAL BANK, as Administrative Agent and the Administrative
Agent, the undersigned, [________________] of and on behalf of
the Borrowers, hereby certifies as follows:
22. The representations and warranties of the Borrowers set
forth in the Credit Agreement and the Loan Documents or which are
contained in any certificate, document or financial or other
statement furnished pursuant to or in connection with the Credit
Agreement or any of the Loan Documents are true and correct in
all material respects on and as of the date hereof with the same
effect as if made on the date hereof, except for representations
and warranties expressly stated to relate to a specific earlier
date, in which case such representations and warranties are true
and correct as of such earlier date;
23. No Default or Event of Default has occurred and is
continuing as of the date hereof or will occur after giving
effect to the making of the Loans requested to be made on the
date hereof and the consummation of each of the transactions
contemplated by the Loan Documents;
[24. _____________ is and at all times since __________ __,
1995, has been the duly elected and qualified [Assistant]
Secretary of Plato and Northeast and the ____________ of U.S.
Tele-Media Investment Company, the general partner of MV (the
"General Partner") and the signature set forth on the signature
line for such officer below is such officer's true and genuine
signature;
and the undersigned [Assistant] Secretary of Plato and
Northeast and the _________ of the general partner of MV
hereby certifies as follows:
25. There are no liquidation or dissolution proceedings
pending or to my knowledge threatened against the Borrowers or
any of their Subsidiaries, nor has any other event occurred
affecting or threatening the corporate or partnership
existence of the Borrowers or any of their Subsidiaries;
26. Plato, Northeast and the General Partner are
corporations duly organized and validly existing under the
laws of Delaware;
27. MV is a limited partnership duly organized and validly
existing under the laws of Delaware;
28. Robinson is a limited partnership duly organized and
validly existing under the laws of the Commonwealth of
Pennsylvania;
29. Since ___________ __, 199_ there have been no changes in
the capital structure of, or change in the form of, or
decrease in the capitalization of the Borrowers;
30. (1) Attached hereto as Annex A is a true and complete
copy of resolutions duly adopted by the Board of Directors of
each Borrower (other than MV and Robinson), the General
Partner of MV and Plato with respect to Robinson, on
__________ __, 19__; such resolutions have not in any way been
amended, modified, revoked or rescinded and have been in full
force and effect since their adoption to and including the
date hereof and are now in full force and effect; such
resolutions are the only corporate proceedings of the General
Partner and Plato with respect to Robinson now in force
relating to or affecting the matters referred to therein;
(2) attached hereto as Annex B is a true and complete
copy of the respective By-laws of the Borrowers and the
General Partner and the Partnership Agreements of MV and
Robinson, each as in effect at all times since __________ __,
19__, to and including the date hereof;
(3) attached hereto as Annex C is a true and complete copy
of the Certificate of Incorporation of the Borrowers and the
General Partner and the Certificates of Limited Partnership of
MV and Robinson, each as in effect at all times since
__________ __, 19__, to and including the date hereof; and
31. The following persons are now duly elected and qualified
officers of the Borrowers and the General Partner, as the case
may be, each holding the offices indicated next to their
respective names below, and such officers have held such
offices with the Borrower at all times since __________ __,
19__, to and including the date hereof, and the signatures
appearing opposite their respective names below are the true
and genuine signatures of such officers, and each of such
officers is duly authorized to execute and deliver on behalf
of the Borrower, the Credit Agreement, any Notes and the
Security Documents and other Loan Documents to which it is a
party and any certificate or other document to be delivered by
the Borrowers pursuant to the Credit Agreement, the Security
Documents or any other Loan Document:
Name Office
Signature
[ ] [ ]
_______________
[ ] [ ]
_______________
Unless otherwise defined herein, capitalized terms which
are defined in the Credit Agreement are used herein as so
defined.
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto set our
names and affixed the corporate seal.
PLATO COMMUNICATIONS, INC.
NORTHEAST CABLE, INC.
By:__________________________
Title:
MARTHA'S VINEYARD
ROBINSON/PLUM CABLEVISION, L.P.
CABLEVISION, L.P.
By: U.S. TELE-MEDIA INVEST- By: PLATO COMMUNICATIONS,
MENT COMPANY, its General INC., its General
Partner Partner
By: ________________________ By: _______________________
its General Partner Title:
Date: [ ], 19951
EXHIBIT G TO
CREDIT AGREEMENT
[FORM OF ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of
October 27, 1995 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among
PLATO COMMUNICATIONS, INC., a Delaware corporation ("Plato"),
NORTHEAST CABLE, INC., a Delaware corporation ("Northeast"),
MARTHA'S VINEYARD CABLEVISION, L.P., a Delaware limited
partnership, ROBINSON/PLUM CABLEVISION, L.P., a Pennsylvania
limited partnership ("Robinson", together with Plato,
Northeast and MV, the "Borrowers", and individually, each a
"Borrower"), the several banks and other financial
institutions from time to time parties thereto (collectively,
the "Lenders"), and CHEMICAL BANK, as Administrative Agent.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
(the "Assignor") and
(the "Assignee") agree as follows:
32. The Assignor hereby irrevocably sells and assigns to
the Assignee without recourse to the Assignor, and the
Assignee hereby irrevocably purchases and assumes from the
Assignor without recourse to the Assignor, as of the Effective
Date (as defined below), a % interest (the "Assigned
Interest") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to the revolving
credit facility contained in the Credit Agreement as set forth
on Schedule 1 (the "Assigned Facility");
33. The Assignor (a) makes no representation or warranty
and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with
the Credit Agreement or with respect to the execution,
legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, any other Loan Document or
any other instrument or document furnished pursuant thereto,
other than that the Assignor has not created any adverse claim
upon the interest being assigned by it hereunder and that such
interest is free and clear of any such adverse claim; (b)
makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrowers, any of their Subsidiaries or any other obligor or
the performance or observance by the Borrowers, any of their
Subsidiaries or any other obligor of any of their respective
obligations under the Credit Agreement or any other Loan
Document or any other instrument or document furnished
pursuant hereto or thereto; and (c) attaches any Notes held by
it evidencing the Assigned Facilities and (i) requests that
the Administrative Agent, upon request by the Assignee,
exchange the attached Notes for a new Note or Notes payable to
the Assignee and (ii) if the Assignor has retained any
interest in the Assigned Facility, requests that the
Administrative Agent exchange the attached Notes for a new
Note or Notes payable to the Assignor, in each case in amounts
which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become
effective on the Effective Date).
34. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and
Acceptance; (b) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial
statements delivered pursuant to subsection 3.1 thereof and
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (c) agrees that it
will, independently and without reliance upon the Assignor,
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 decisions in taking or
not taking action under the Credit Agreement, the other Loan
Documents or any other instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as administrative
agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are incidental
thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the
terms of the Credit Agreement are required to be performed by
it as a Lender including, if it is organized under the laws of
a jurisdiction outside the United States, its obligation
pursuant to subsection 2.15(b) of the Credit Agreement.
35. The effective date of this Assignment and Acceptance
shall be , 199 , (the "Effective Date").
Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to
the Credit Agreement, effective as of the Effective Date
(which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after
the date of such acceptance and recording by the
Administrative Agent).
36. Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to
the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date.
The Assignor and the Assignee shall make all appropriate
adjustments in payments by the Administrative Agent for
periods prior to the Effective Date or with respect to the
making of this assignment directly between themselves.
37. From and after the Effective Date, (a) the Assignee
shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights
and obligations of a Lender thereunder and under the other
Loan Documents and shall be bound by the provisions thereof
and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
38. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first
above written by their respective duly authorized officers on
Schedule 1 hereto.
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By:_________________ By:____________________
Title: Name:
Title:
Accepted: Consented To:
CHEMICAL BANK, as PLATO COMMUNICATIONS, INC.
Administrative Agent NORTHEAST CABLE, INC.
By:___________________ By:_____________________
Name: Name:
Title: Title:
MARTHA'S VINEYARD
CABLEVISION, L.P.
By: U.S. TELE-MEDIA INVESTMENT
COMPANY,
its General Partner
By:_________________
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: PLATO COMMUNICATIONS, INC.,
its General Partner
By:_________________
Name:
Title:
Schedule 1
to Assignment and Acceptance
relating to the Credit Agreement,
dated as of
October 27, 1995
among
Plato Communications, Inc.,
Northeast Cable, Inc.,
Martha's Vineyard Cablevision, L.P.,
the Lenders named therein
and
Chemical Bank, As Administrative Agent,
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned3)
Revolving Credit
Facility $______________ _____________________%
3)Calculate the Commitment Percentage that is assigned to at
least 15 decimal places and show as a percentage of the
aggregate commitments of all Lenders.
EXHIBIT H
TO CREDIT AGREEMENT
SUPPLEMENT, dated as of ________ __, 199_ (this "Supplement"),
to the Credit Agreement, dated as of October 27, 1995 (the
"Credit Agreement"), among PLATO COMMUNICATIONS, INC.,
NORTHEAST CABLE, INC., each a Delaware corporation, MARTHA'S
VINEYARD CABLEVISION, L.P., a Delaware limited partnership,
ROBINSON/PLUM CABLEVISION, L.P., a Pennsylvania limited
partnership (as defined in the Credit Agreement, the
"Borrowers"), the several banks and other financial
institutions from time to time parties to the Credit Agreement
(the "Lenders") and CHEMICAL BANK, a New York banking
corporation, as Administrative Agent for the Lenders
thereunder.
WHEREAS, the Borrowers, the Lenders and the
Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Credit Agreement provides that CENTRAL
VIRGINIA CABLE, INC., a Delaware corporation ("CVA"), an
Affiliate (as defined in the Credit Agreement) of the
Borrowers, may also become a Borrower, on a joint and several
basis, provided that certain conditions contained in the
Credit Agreement shall have been satisfied; and
WHEREAS, CVA now wishes to be a Borrower under the Credit
Agreement;
CVA makes the following statements:
39. CVA represents and warrants to the Administrative Agent
and each Lender that each of the representations and
warranties contained in Section 3 of the Credit Agreement is
true and correct with respect to CVA as of the date hereof
(with each reference therein to a "Borrower" being understood
for the purposes of this paragraph to include a reference to
CVA).
40. CVA agrees that it shall constitute a Borrower
under each of the Loan Documents (as defined in the Credit
Agreement), subject to all the obligations and entitled to all
the benefits of a Borrower as fully as if it had originally
executed such Loan Document as a Borrower.
IN WITNESS WHEREOF, CVA has caused this Supplement
to be executed and delivered by its duly authorized officer as
of the date first above written.
CENTRAL VIRGINIA CABLE, INC.
By:_____________________________
Title:
SUBORDINATION AGREEMENT dated as of October 27, 1995 (as amended,
supplemented or otherwise modified from time to time, this
"Agreement"), among ADELPHIA COMMUNICATIONS CORPORATION, a
Delaware corporation ("ACC"), the Borrowers (as defined below)
and CHEMICAL BANK, as Administrative Agent for the several banks
and other financial institutions (collectively, the "Lenders")
from time to time parties to the Credit Agreement, dated as of
October 27, 1995 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among PLATO
COMMUNICATIONS, INC., a Delaware corporation, NORTHEAST CABLE,
INC., a Delaware corporation ("Northeast"), MARTHA'S VINEYARD
CABLEVISION, L.P., a Delaware limited partnership, ROBINSON/PLUM
CABLEVISION, L.P., a Pennsylvania limited partnership
(collectively, the "Borrowers"), the Lenders and the
Administrative Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders
have severally agreed to make Loans to the Borrowers upon the
terms and subject to the conditions set forth therein;
WHEREAS, as of the date hereof, Northeast has a current
liability on its books and records of $912,000, payable to ACC;
WHEREAS, ACC and/or one or more of its Affiliates may
decide to make further loans (including the loans outstanding to
Northeast on the date hereof in the aggregate amount of $912,000,
the "Intercompany Loans") to one or more Affiliates (as defined
in the Credit Agreement) which are Borrowers on or subsequent to
the date hereof; and
WHEREAS, it is a condition precedent to the
effectiveness of the Credit Agreement and the obligations of the
Lenders to make their respective Loans to the Borrowers under the
Credit Agreement that ACC shall have agreed to subordinate its
rights, and those of its Affiliates, to receive any payments in
connection with Intercompany Loans to Borrowers to the rights of
the Lenders to receive payments on the Senior Obligations (as
defined below).
NOW, THEREFORE, in consideration of the premises and to
induce the Administrative Agent and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their
respective Loans to the Borrowers, ACC agrees with the
Administrative Agent, for the ratable benefit of the Lenders, as
follows:
41. Definitions. (a) Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(b) For purposes of this Agreement, the following
terms shall have the following meanings:
"Holder": ACC or an Affiliate of ACC which holds an
interest in an Intercompany Loan on the date hereof or acquires
an interest in an Intercompany Loan by making a new Intercompany
Loan, or otherwise, subsequent to the date hereof.
"Reorganization": with respect to the Company, any
distribution of its assets upon any voluntary or involuntary
dissolution, winding-up, total or partial liquidation or
reorganization, or bankruptcy, insolvency, receivership or
other statutory or common law proceedings or arrangements
involving the Company or the readjustment of its liabilities
or any assignment for the benefit of creditors or any
marshalling of its assets or liabilities.
"Senior Indebtedness": the collective reference to the
unpaid principal of and interest on (including, without
limitation, interest accruing at the then applicable rate
provided in the Credit Agreement after the maturity of the
Loans and interest accruing at the then applicable rate
provided in the Credit Agreement after the filing of any
petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to
each Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the
Loans and all other obligations and liabilities of the
Borrowers to the Administrative Agent and the Lenders,
including, without limitation, any commitment fees, whether
direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Credit Agreement,
any Notes, this Agreement, the other Loan Documents or any
other document made, delivered or given in connection with
any of the foregoing, in each case whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to
the Administrative Agent or to the Lenders that are required
to be paid by the Borrowers pursuant to the terms of the
Credit Agreement, this Agreement or any other Loan
Document).
"Subordinated Indebtedness": Intercompany Loans and
all accrued interest thereon.
42. Agreement to Subordinate. ACC, for itself and
its successors and assigns, covenants and agrees, as a holder of
Subordinated Indebtedness, for itself and its successors and
assigns, that no payments shall be received by any Holder, nor
shall any Holder receive any benefit resulting from or in
connection with the Subordinated Indebtedness, and the
Subordinated Indebtedness is and shall be expressly "subordinate
and junior in right of payment" (as such phrase is defined in
Section 3) to the prior payment in full of all Senior
Indebtedness to the extent and in the manner provided for in the
Credit Agreement.
43. Meaning of Subordinate and Junior in Right of
Payment. (a) "Subordinate and junior in right of payment" shall
mean that no part of the Subordinated Indebtedness shall have any
claim to the assets of any Borrower on a parity with or prior to
the claim of the Senior Indebtedness, whether such claim is made
in connection with a Reorganization or otherwise. Unless and
until the Senior Indebtedness shall have been paid in full and
the Commitments shall have been terminated, no Holder will take,
demand or receive from any Borrower and no Borrower will make,
give or permit, directly or indirectly, by set-off, redemption,
purchase or in any other manner, (i) any payment of the whole or
any part of the Subordinated Indebtedness or any interest
thereon, (ii) any security or collateral for the whole or any
part of the Subordinated Indebtedness or (iii) any guarantee of
the whole or any part of the Subordinated Indebtedness. The
Borrowers expressly agree that they will not make any payment of
any of the Subordinated Indebtedness or any interest thereon, or
take any other action, in contravention of the provisions of this
Agreement.
(b) For purposes of this Agreement, the Senior
Indebtedness shall not be deemed to have been paid in full until
and unless the Lenders shall have indefeasibly received payment
in full of the principal of, interest on and costs and expenses
and all other amounts then payable in connection with the Senior
Indebtedness. The subordination provisions in this Agreement are
for the benefit of and shall be enforceable directly by the
Lenders, and each Lender shall be deemed to have acquired such
Senior Indebtedness in reliance upon this Agreement. The
Administrative Agent shall have the right to act on behalf of the
Lenders pursuant to this Agreement in enforcing the rights of the
Lenders, and in receiving payments and other distributions to be
made, under this Agreement.
(c) In the event that, notwithstanding the provisions
of paragraph (a) of this Section 3, any Holder shall have
received any payment or distribution with respect to the
Subordinated Indebtedness contrary to the foregoing provisions of
such paragraph, then and in any such event such payment or
distribution shall be held in trust for the benefit of, and shall
be immediately paid or delivered by any such Holder to, the
Administrative Agent to be used to prepay Loans outstanding under
the Credit Agreement.
44. Subordinated Indebtedness Subordinated to Prior
Payment of All Senior Indebtedness on Reorganization or Sale of
Any Borrower. Upon any payment or distribution of all or any of
the assets or securities of any Borrower of any kind or
character, whether in cash, property or securities, whether made
pursuant to a Reorganization relative to such Borrower or any of
its properties, or a distribution of proceeds of or upon sale of
all or any part of such Borrower or any of its subsidiaries or
any of their respective assets, then in such event:
(a) the Lenders shall be entitled to receive payment
in full as provided herein of all amounts due or to become
due on or in respect of all Senior Indebtedness, before any
payment is made on account of or applied to the Subordinated
Indebtedness;
(b) any payment or distribution of assets of such
Borrower of any kind or character, whether in cash, property
or securities (including any payment or other distribution
that may be payable by reason of the payment of any other
Indebtedness of such Borrower being subordinated to the
payment of Subordinated Indebtedness), to which the holders
of Subordinated Indebtedness would be entitled except for
the provisions of this Agreement, shall be paid or delivered
by any debtor, custodian, receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such
payment or distribution, directly to the Administrative
Agent for the benefit of the Lenders, for application to the
payment or prepayment of all such Senior Indebtedness
remaining unpaid to the extent necessary to pay all such
Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to the Lenders; and
(c) in the event that, notwithstanding the foregoing
provisions of this Section 4, any Holder shall have received
any payment or distribution with respect to Subordinated
Indebtedness contrary to the foregoing provisions of this
Section 4, then and in such event such payment or
distribution shall be held in trust for the benefit of, and
shall be immediately paid or delivered by such Holder
Subordinated Indebtedness to the Administrative Agent for
the benefit of the Lenders for application to the payment or
prepayment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all such Senior Indebtedness in
full after giving effect to any concurrent payment or
distribution to the Lenders.
In the event of a Reorganization, if any Holder has not
filed any claim, proof of claim or other instrument of similar
character with respect to the Subordinated Indebtedness within 20
days before the expiration of the time to file the same, the
Administrative Agent or any Lender may, as an attorney-in-fact
for any such Holder, file any claim, proof of claim or other such
instrument of similar character on behalf of, and any such Holder
hereby appoints the Administrative Agent and any such Lender as
an attorney-in-fact for, any such Holder, to so file any claim,
proof of claim or such other instrument of similar character.
Upon any distribution of assets of any Borrower
referred to in this Agreement, each Holder shall be entitled to
rely upon any order or decree made by any court of competent
jurisdiction in which a Reorganization is pending for the purpose
of ascertaining the identity of the Lenders, the amount of Senior
Indebtedness, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Agreement.
Nothing in the foregoing sentence shall limit the right of the
Lenders to receive payment in full of the Senior Indebtedness in
accordance with this Agreement.
45. Holders to be Subrogated to Rights of Holders of
Senior Indebtedness. Subject to the payment in full of all
Senior Indebtedness, each Holder shall be subrogated to the
rights of the Lenders to receive payments or distributions of
assets of the Borrowers made on account of the Senior
Indebtedness until all amounts payable in respect of the
Subordinated Indebtedness shall be paid in full, and for purposes
of such subrogation, no payment or distribution to the Lenders of
assets, whether in cash, property or securities, distributable to
the Lenders under the provisions hereof to which any Holder would
be entitled except for the provisions of this Agreement, and no
payment pursuant to the provisions of this Agreement to the
Lenders by any Holder shall, as between the relevant Borrower,
its creditors other than Lenders, and any such Holder, be deemed
to be a payment by such Borrower to or on account of such Senior
Indebtedness, it being understood that the provisions of this
Agreement are, and are intended, solely for the purpose of
defining the relative rights of the Holders, on the one hand, and
the Lenders, on the other hand.
46. Obligations of Each Borrower Unconditional. (1)
Nothing contained in this Agreement is intended to or shall
relieve the obligations of any Borrower to the Lenders or the
Holder to pay any amount in respect of the Senior Indebtedness or
the Subordinated Indebtedness, as the case may be, as and when
such amount shall become due and payable in accordance with the
terms thereof, or to affect the relative rights of the Lenders or
the Holders, on the one hand, and the other creditors of such
Borrower, on the other hand. All rights and interests of the
Lenders hereunder, and all agreements and obligations each
Borrower and each Holder, shall remain in full force and effect
irrespective of:
(i) any lack of validity or enforceability of any Loan
Document or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Senior Indebtedness, or any amendment or waiver of or any
consent to departure from any provision of the Credit
Agreement or any other Loan Document;
(iii) any exchange, release or nonperfection of any
security interest in any collateral, or any release or
amendment or waiver of or consent to departure from any
guarantee, for all or any of the Senior Indebtedness; or
(iv) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, any
Borrower in respect of the Senior Indebtedness, or of any
Borrower or any Holder in respect of this Agreement.
(2) Nothing contained in this Agreement shall affect
the obligation of any Borrower to make, or to prevent any
Borrower from making, at any time, payment of any amount in
respect of the Senior Indebtedness. Nothing contained in this
Agreement shall, except as set forth in Sections 3 and 4, affect
the obligation of any Borrower to make, at any time, payment of
any amount in respect of Subordinated Indebtedness.
47. No Other Beneficiaries of Subordination. This
Agreement and the subordination provisions contained herein are
intended only for the benefit of the holders of Senior
Indebtedness and no other creditor of any Borrower. No Borrower
will publish or give to any creditor or prospective creditor of
such Borrower, any copy, statement or summary (or acquiesce in
the publication or giving of any such copy, statement or summary)
as to the subordination of the rights of the Holders without also
stating or causing to be stated (in a conspicuous manner in the
case of any document) that such subordination is solely for the
benefit of any other the holders of Senior Indebtedness and not
for the benefit of any other creditor of such Borrower or such
Borrower.
48. Rights of Holders of Senior Indebtedness Not to be
Impaired. No right of any present or future Holder of any Senior
Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or
omission in good faith by any such Holder, or by any
noncompliance by any Borrower with the terms and provisions and
covenants herein regardless of any knowledge thereof any such
holder of Senior Indebtedness may have or otherwise be charged
with.
49. Legend. Each Borrower and each Holder shall cause
each Promissory Note issued by or to it representing or
evidencing Subordinated Indebtedness to have affixed upon it a
legend, including in connection with the issuance of any new or
replacement Promissory Note with respect to the transfer of such
promissory Note or the reduction of the principal amount thereof,
which reads substantially as follows:
"This instrument is subject to the Affiliate
Subordination Agreement, dated as of October [ ], 1995, as
amended, supplemented or otherwise modified from time to
time (the "Affiliate Subordination Agreement") among
ADELPHIA COMMUNICATIONS CORPORATION, a Delaware corporation
("ACC"), the Borrowers (as defined below) and CHEMICAL BANK,
as Administrative Agent for the several banks and other
financial institutions (collectively, the "Lenders") from
time to time parties to the Credit Agreement, dated as of
October [ ], 1995 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among
PLATO COMMUNICATIONS, INC., a Delaware corporation,
NORTHEAST CABLE, INC., a Delaware corporation ("Northeast"),
MARTHA'S VINEYARD CABLEVISION, L.P., a Delaware limited
partnership, ROBINSON/PLUM CABLEVISION, L.P., a Pennsylvania
limited partnership (collectively, the "Borrowers"), the
Lenders and the Administrative Agent.
50. Representations and Warranties. Each Holder
hereby represents and warrants that:
(i) it has the power and authority and the legal right
to execute and deliver, and to perform its obligations
under, this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance of this
Agreement;
(ii) this Agreement constitutes a legal, valid and
binding obligation of such Holder enforceable in accordance
with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
the enforcement of creditors' rights generally, general
equitable principles and an implied covenant of good faith
and fair dealing;
(iii) the execution, delivery and performance of this
Agreement will not violate any provision of any Requirement
of Law applicable to it or any of its Contractual
Obligations;
(iv) no consent or authorization of, filing with, or
other act by or in respect of, any arbitrator or
Governmental Authority and no consent of any other Person
(including, without limitation, any partner, stockholder or
creditor of such Holder), is required in connection with the
execution, delivery, performance, validity or enforceability
of this Agreement; and
(v) no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending
or, to its knowledge, threatened by or against such Holder
with respect to this Agreement.
51. New Borrower. Each party hereto agrees that if
CVA shall become a Borrower under the Credit Agreement in
accordance with the provisions of Section 9.16 thereof, (i) CVA
shall automatically become a party hereto as a Borrower to the
same extent as if originally a party hereto and (ii) any Person
which would be a "Holder" under this Agreement with respect to
CVA shall automatically become a party hereto as a Holder to the
same extent as if originally a party hereto.
52. Successors; Continuing Effect. This Agreement is
being entered into for the benefit of, and shall be binding upon,
the Lenders and the Holders, and their respective successors and
assigns, including subsequent holders of Senior Indebtedness, and
the term "holders of Senior Indebtedness" shall include any such
subsequent or additional holder of Senior Indebtedness, wherever
the context permits, provided that no Holder shall transfer or
assign any of its rights with respect to Subordinated
Indebtedness to any Person, and no Borrower shall receive an
Intercompany Loan from any Person, in each case other than one of
its Affiliates which has become a Holder hereunder in accordance
with Section 21 and which has executed a Supplement in the form
of Exhibit A hereto agreeing to be bound by the terms of this
Agreement.
53. Further Assurances. Each Borrower and each Holder
will, at their own expense and at any time and from time to time,
promptly execute and deliver all further instruments and
documents, and take all further action, that the Administrative
Agent may reasonably request, in order to perfect or otherwise
protect any right or interest granted or purported to be granted
hereby or to enable the Administrative Agent and the Lenders to
exercise and enforce their rights and remedies hereunder.
54. Expenses. Each Borrower and each Holder jointly
and severally agrees to pay to the Administrative Agent, upon
demand, the amount of any and all reasonable expenses, including,
without limitation, the reasonable fees and expenses of counsel
for the Administrative Agent, which the Administrative Agent and
the Lenders may incur in connection with the exercise or
enforcement of any of their rights or interests vis-a-vis such
Borrower or such Holder.
55. Notices; Amendments etc. (a) All notices,
requests and demands to or upon the Administrative Agent, any
Borrower of any Holder to be effective shall be in writing
(including by facsimile or telecopy transmission) and shall be
deemed to have been duly given or made (1) when delivered by hand
or (2) three days after being deposited in the mail, postage
prepaid or (3) one Business Day after being sent by priority
overnight mail with a nationally recognized overnight delivery
carrier or (4) if by telecopy or facsimile, when received:
(i) if to the Administrative Agent, the Borrowers or
ACC, at their addresses or transmission numbers for notices
provided in subsection 9.2 of the Credit Agreement; and
(ii) if to any Holder (other than ACC) at its address
or transmission number for notices set forth under its signature
below.
The Administrative Agent, each Borrower and any Holder
may change their addresses and transmission numbers for notices
by notice in the manner provided in this Section.
(b) None of the terms or provisions of this Agreement
may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by the Companies, the Holders
and the Administrative Agent, provided that any provision of this
Agreement may be waived by the Administrative Agent and the
Lenders in a letter or agreement executed by the Administrative
Agent or by telecopy or facsimile transmission from the
Administrative Agent. Any such amendment or waiver shall be
binding upon the Lenders, each Borrower and each Holder and their
successors and assigns.
56. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction, shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or invalidity without invalidating the remaining
portions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
57. Submission to Jurisdiction. Each Borrower and
each Holder hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement or for recognition and
enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now
or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the
same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form
of mail), postage prepaid, to it at its addresses set forth in
Section 14 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction.
58. WAIVER OF JURY TRIAL. EACH BORROWER, EACH HOLDER
AND THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
59. Entire Agreement; Governing Law. This Agreement
embodies the entire agreement and understanding of the parties
hereto regarding the subject matter hereof. THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
60. Counterparts. This Agreement may be executed in
any number of counterparts, and each such counterpart shall be
deemed to be an original instrument, but all such counterparts
together shall constitute one agreement.
61. New Holders. Any Affiliate of any Holder shall
become a "Holder" under this Agreement and shall execute and
deliver to the Administrative Agent a Supplement to this
Agreement in the form attached hereto as Exhibit A. Any such
Affiliate shall thereafter be deemed to be a "Holder" for all
purposes under this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be duly executed and delivered by their duly
authorized officers on the date and year first above written.
CHEMICAL BANK, as Administrative Agent
By:____________________________
Name:
Title:
ADELPHIA COMMUNICATIONS CORPORATION
By: ___________________________
Name:
Title:
NORTHEAST CABLE, INC.
By:___________________________
Name:
Title:
PLATO COMMUNICATIONS, INC.
By:___________________________
Name:
Title:
MARTHA'S VINEYARD CABLEVISION, L.P.
By: U.S. TELE-MEDIA INVESTMENT
COMPANY, its Managing General
Partner
By:______________________
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: PLATO COMMUNICATIONS, INC.
By:______________________
Name:
Title:
<PAGE>
EXHIBIT A TO
SUBORDINATION AGREEMENT
[FORM OF SUPPLEMENT
TO AFFILIATE SUBORDINATION AGREEMENT]
SUPPLEMENT, dated as of _______ __, 1995, to the Subordination
Agreement, dated as of October __, 1995 (as amended, supplemented
or otherwise modified from time to time, the "Agreement"), among
ADELPHIA COMMUNICATIONS CORPORATION, a Delaware corporation
("ACC"), the Borrowers (as defined below) and CHEMICAL BANK, as
Administrative Agent for the several banks and other financial
institutions (collectively, the "Lenders") from time to time
parties to the Credit Agreement, dated as of October [ ], 1995
(as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among PLATO COMMUNICATIONS, INC.,
a Delaware corporation, NORTHEAST CABLE, INC., a Delaware
corporation ("Northeast"), MARTHA'S VINEYARD CABLEVISION, L.P., a
Delaware limited partnership, ROBINSON/PLUM CABLEVISION, L.P., a
Pennsylvania limited partnership (collectively, the "Borrowers"),
the Lenders and the Administrative Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders
have severally agreed to make Loans (as defined in the Credit
Agreement) to the Borrowers upon the terms and subject to the
conditions set forth therein; and
WHEREAS, _______________ (the "New Holder") wishes to
make Intercompany Loans to a Borrower; and
WHEREAS, the Borrowers have agreed in the Credit
Agreement that they will not accept any Intercompany Loans form
the New Holder unless the New Holder shall have executed and
delivered this Supplement;
NOW, THEREFORE, the undersigned hereby agrees as
follows:
The undersigned agrees to be bound by all of the provisions of
the Agreement applicable to a Holder thereunder and agrees that
(a) it shall, on the date this Supplement is accepted by the
Administrative Agent, become a Holder, for all purposes of the
Agreement to the same extent as if originally a party thereto
with the representations and warranties contained therein being
deemed to be made by the undersigned as of the date hereof and
(b) the Intercompany Loans made by it to any of the Borrowers
shall constitute Subordinated Indebtedness under the Agreement.
Terms defined in the Agreement shall have their defined meanings
when used herein.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to
be executed and delivered by a duly authorized officer on the
date first above written.
[INSERT NAME OF NEW HOLDER]
By:_______________________________
Name:
Title:
ACKNOWLEDGED AND ACCEPTED
this ____ day of ________, 199_.
CHEMICAL BANK, as Administrative Agent
By:___________________________________
Name:
Title:
