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)April 12, 1996
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
<PAGE>
Item 5. Other Events
Adelphia Communications Corporation ("Adelphia") has entered into commitments
for Revolving Credit Loans which aggregate to $540,000,000 and Term Loans which
aggregate to $150,000,000. The credit agreement related to such loans is
attached hereto as Exhibit 10.36.
Item 7. Financial Statements and Exhibits
(c) The following exhibit is filed as part of this report on Form 8-K,
Exhibit 10.36 - Credit Agreement, dated as of April 12, 1996,
among Chelsea Communications, Inc., Northeast Cable, Inc.,
Kittanning Cablevision, Inc., Robinson/Plum Cablevision L.P.,
the several banks and financial institutions parties thereto,
and Toronto Dominion (Texas), Inc. 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: May 29, 1996 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 10.36 Credit Agreement, dated as of April 12, 1996,
among Chelsea Communications, Inc., Northeast Cable, Inc.,
Kittanning Cablevision, Inc., Robinson/Plum Cablevision L.P.,
the several banks and financial institutions parties thereto,
and Toronto Dominion (Texas), Inc. as Administrative Agent.
$690,000,000
CREDIT AGREEMENT
AMONG
CHELSEA COMMUNICATIONS, INC.
NORTHEAST CABLE, INC.
KITTANNING CABLEVISION, INC.
ROBINSON/PLUM CABLEVISION, L.P.,
as the Borrowers
THE SEVERAL LENDERS FROM TIME TO TIME PARTIES
HERETO
TORONTO DOMINION (TEXAS), INC.
NATIONSBANK OF TEXAS, N.A.
CHEMICAL BANK
THE BANK OF NOVA SCOTIA
CIBC INC.
Managing Agents
NATIONSBANK OF TEXAS, N.A.
Documentation Agent
CHEMICAL BANK
Syndication Agent
and
TORONTO DOMINION (TEXAS), INC.
Administrative Agent
Dated as of April ___, 1996
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 33
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 34
2.1 Revolving Credit Facility 34
2.2 Term Loan Facility 35
2.3 Procedure for Borrowings 36
2.4 Fees 38
2.5 Reduction of Revolving Credit Commitments 39
2.6 Maximum Number of Tranches 39
2.7 Optional and Mandatory Prepayments and Commitment Reductions 39
2.8 Computation of Interest 42
2.9 Interest Rate Conversion 43
2.10 Determination of Interest Rate 43
2.11 Inability to Determine Interest Rate 44
2.12 Pro Rata Treatment and Payments 44
2.13 Illegality 45
2.14 Requirements of Law 45
2.15 Taxes 46
2.16 Indemnity 48
2.17 Change of Lending Office; Substitution of Lender 48
2.18 Use of Net Proceeds 49
2.19 Guaranty Provisions 50
SECTION 3. LETTERS OF CREDIT 53
3.1 L/C Commitment 53
3.2 Procedure for Issuance of Letters of Credit 53
3.3 Letter of Credit Participations 54
3.4 Reimbursement Obligation of the Borrowers 55
3.5 Obligations Absolute 56
3.6 Letter of Credit Payments 56
3.7 L/C Application 56
SECTION 4. REPRESENTATIONS AND WARRANTIES 56
4.1 Financial Condition 56
4.2 Existence; Compliance with Law 57
4.3 Power; Authorization; Enforceable Obligations 57
4.4 No Legal Bar 58
4.5 No Material Litigation 58
4.6 No Default 58
4.7 Ownership of Property; Liens 58
4.8 Intellectual Property 58
4.9 No Burdensome Restrictions 59
4.10 Taxes 59
4.11 Federal Regulations 59
4.12 ERISA 59
4.13 Government Regulation 60
4.14 Subsidiaries 60
4.15 General Partners' Existence; Compliance with Law 60
4.16 General Partners' Power: Authorization; Enforceable Obligations 60
4.17 Accuracy of Information 61
4.18 Purpose of Loans 61
4.19 Environmental Matters 62
4.20 Solvency 63
4.21 Franchises; FCC and Copyright Matters 63
4.22 Subordinated Indebtedness 64
SECTION 5. CONDITIONS PRECEDENT 65
5.1 Conditions to Initial Loans 65
5.2 Conditions to Each Loan 70
5.3 Conditions to Conversions 70
5.4 Conditions to all Letters of Credit71
5.5 Satisfaction of Conditions 71
SECTION 6. AFFIRMATIVE COVENANTS 72
6.1 Financial Statements 72
6.2 Certificates; Other Information 72
6.3 Payment of Obligations 73
6.4 Conduct of Business and Maintenance of Existence 74
6.5 Maintenance of Property; Insurance; Net Proceeds from Asset Sales 74
6.6 Inspection of Property; Books and Records; Discussions 74
6.7 Notices 75
6.8 Environmental Laws 76
6.9 Restricted Subsidiary Guaranties; Pledge of After Acquired
Capital Securities 76
6.10 Pledge During Event of Default 77
6.11 Interest Rate Protection 77
SECTION 7. NEGATIVE COVENANTS 77
7.1 Financial Condition Covenants 78
7.2 Limitation on Indebtedness 79
7.3 Limitation on Liens 79
7.4 Limitation on Fundamental Changes 79
7.5 Limitation on Asset Sales and Asset Swaps 80
7.6 Limitation on Restricted Payments 82
7.7 Limitation on Investments 82
7.8 Limitation on Modifications of Certain Agreements;
Replacement of General Partners 84
7.9 Limitation on Transactions with Affiliates 85
7.10 Limitation on Sales and Leasebacks 85
7.11 Limitation on Changes in Fiscal Year 85
7.12 Limitation on Negative Pledge Clauses 85
7.13 Limitation on Lines of Business; Activities of Unrestricted
Subsidiaries 86
7.14 Limitation on Interest Rate Protection Agreements 86
7.15 Limitation on Management Fees 86
7.16 Limitation on Disposal of Capital Securities 87
SECTION 8. EVENTS OF DEFAULT 87
8.1 Events of Default; Remedies 87
SECTION 9. THE ADMINISTRATIVE AGENT 91
9.1 Appointment 91
9.2 Delegation of Duties 91
9.3 Exculpatory Provisions 91
9.4 Reliance by Administrative Agent 92
9.5 Notice of Default 92
9.6 Non-Reliance on the Agents and Other Lenders 92
9.7 Indemnification 93
9.8 An Agent in Its Individual Capacity93
9.9 Successor Administrative Agent 94
SECTION 10. MISCELLANEOUS 94
10.1 Amendments and Waivers 94
10.2 Notices 95
10.3 No Waiver; Cumulative Remedies 96
10.4 Survival of Representations and Warranties 96
10.5 Payment of Expenses and Taxes 97
10.6 Successors and Assigns; Participations and Assignments 98
10.7 Adjustments; Set-off 100
10.8 Counterparts 101
10.9 Severability; Limitation on Agreements 101
10.10 Integration 102
10.11 GOVERNING LAW 102
10.12 Submission To Jurisdiction; Waivers102
10.13 Acknowledgments 103
10.14 WAIVER OF JURY TRIAL 103
10.15 Authority of General Partners 103
10.16 Release 104
<PAGE>
ANNEXES
Annex A Lender Information
EXHIBITS
Exhibit A-1 Form of Affiliate Subordination Agreement
Exhibit A-2 Form of Intercompany Indebtedness Subordination Agreement
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrower Assignment of Partnership Interests
Exhibit D Form of Compliance Certificate
Exhibit E Form of Guaranty Agreement
Exhibit F Form of Management Subordination Agreement
Exhibit G Form of Notice of Borrowing
Exhibit H Form of Notice of Conversion
Exhibit I Form of Notice of Letter of Credit Request
Exhibit J Form of Revolving Credit Note
Exhibit K Form of Stock Pledge Agreement
Exhibit L Form of Subsidiary Assignment of Partnership Interests
Exhibit M Form of Term Note
Exhibit 5.1(d Form of Borrowing Certificate
Exhibit 5.1(l)(i) Form of Opinion of Counsel to the Borrowers
Exhibit 5.1(l)(ii) Form of Opinion of General Counsel to the Borrowers
Exhibit 5.1(l)(iii) Form of Opinion of Special FCC Counsel to the Borrowers
SCHEDULES
Schedule 4.2 Jurisdictions of Formation and Qualification
Schedule 4.3 Necessary Consents
Schedule 4.5 Certain Litigation
Schedule 4.14 Subsidiaries
Schedule 4.19 Environmental Matters
Schedule 4.21 Systems and Franchises
Schedule 4.22 Description of Subordinated Indebtedness
Schedule 7.7(f) Loans to Officers of any Borrower
Schedule 7.7(g) Investments in Subsidiaries
Schedule 7.7(i) Chelsea Investment in ACC
<PAGE>
CREDIT AGREEMENT
Dated as of April ___, 1996
CHELSEA COMMUNICATIONS, INC., a Delaware corporation,
NORTHEAST CABLE, INC., a Delaware corporation, KITTANNING CABLEVISION, INC., a
Delaware corporation, ROBINSON/PLUM CABLEVISION, L.P., a Pennsylvania limited
partnership, the several Lenders listed on the signature pages hereof and any
Lender hereafter becoming a party hereto in accordance with the provisions
hereof, TORONTO DOMINION (TEXAS), INC., NATIONSBANK OF TEXAS, N.A., CHEMICAL
BANK, THE BANK OF NOVA SCOTIA and CIBC, INC., as Managing Agents, NATIONSBANK OF
TEXAS, N.A., as Documentation Agent, CHEMICAL BANK, as Syndication Agent and
TORONTO DOMINION (TEXAS), INC., as Administrative Agent, agree as follows:
W I T N E S S E T H
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
have the following meanings:
"ACC" means Adelphia Communications Corporation, a Delaware corporation.
"ACC Change of Control" means the failure of the Rigas Family to own,
directly or indirectly, Capital Securities of ACC which, under ordinary
circumstances (not dependent on any contingency), entitle the holders thereof to
cast more than 75% of the total number of votes that holders of all of ACC's
Capital Securities then outstanding would be entitled to cast; 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%.
ACC Distribution has the meaning specified in Section 4.18.
ACI means Adelphia Cablevision, Inc., a Pennsylvania corporation.
"Acquisition" means, as to any Person, subject to Section 7.13, (a) any
acquisition by such Person of the Capital Securities of any other Person,
provided that such other Person shall, as a result of such acquisition, become a
Subsidiary of such Person and the accounts of which shall be consolidated with
such Person in accordance with GAAP or (b) any acquisition by such Person of
substantially all the assets of any other Person; provided, however, the cost or
purchase price of any such acquisition shall not exceed the fair market value of
such Capital Securities or such assets, as the case may be. For purposes of this
definition, "fair market value" means the price at which in a comparable
transaction, after arm's-length negotiations during which neither party was
under any compulsion to act, a willing seller would sell and a willing buyer
would buy the subject Capital Securities or assets, as the case may be.
"Active Plant" means 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.
ACTV means Adelphia Cable T.V., Inc., a Pennsylvania corporation.
Adelphia Cablevision, L.P. means Adelphia Cablevision Associates,
L.P., a Pennsylvania limited partnership.
Adelphia Cablevision, L.P. Partners means Chelsea, Aurora
CableVision, Inc., Kalamazoo County Cablevision, Inc., Mass.
Cablevision, Inc. and Vermilion Cablevision, Inc.
"Adjusted Eurodollar Rate" means, for any day in an Interest Period for
any Eurodollar Loan, an interest rate per annum equal to the sum of (a) the
quotient, expressed as a percentage (rounded to the nearest 1/100th of 1%),
resulting from the division of (i) the Eurodollar Rate for such Interest Period
by (ii) the percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage in effect on such day and (b) the Applicable Margin in effect on such
day for Revolving Credit Loans or Term Loans, as the case may be.
"Adjustment Date" means, for the purposes of determining the Applicable
Margin from time to time, the second Business Day after the Administrative Agent
receives both (a) the Financial Statements as of the end of such fiscal quarter
required by Section 6.1 and (b) the related Compliance Certificate required by
Section 6.2(b).
"Administrative Agent" means Toronto Dominion in its capacity as
Administrative Agent for the Lenders pursuant to this Agreement and any
successor Administrative Agent appointed pursuant to Section 9.9.
"Administrative Agent's Office" means the office of Toronto Dominion
specified in Section 10.2 or such other office as Toronto Dominion shall specify
in a notice to the Borrowers in accordance with Section 10.2.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly through one or more intermediaries or otherwise, (a) owns
beneficially 5% or more of the Capital Securities of such Person or (b)
controls, is controlled by, or is under common control with, such Person. As
used in this definition, "control" of a Person means the possession, directly or
indirectly, of the power either to (a) vote 5% or more of the Capital 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 through ownership of Capital Securities, by contract or otherwise. All
references to an "Affiliate" or "Affiliates" of any Borrower or any Restricted
Subsidiary shall include ACC and the Unrestricted Subsidiaries.
Affiliate Subordinated Indebtedness means Subordinated Indebtedness of
the type described in subsection (c) of the definition of Subordinated
Indebtedness.
"Affiliate Subordination Agreement" means a Subordination Agreement in
the form of Exhibit A-1, as amended, supplemented and otherwise modified from
time to time.
"Agents" means the Administrative Agent, the Managing Agents,
NationsBank, in its capacity as Documentation Agent in connection with this
Agreement and Chemical Bank, in its capacity as Syndication Agent in connection
with this Agreement.
"Agreement" means this Credit Agreement, including all attached
Annexes, Schedules and Exhibits, each as amended, supplemented and otherwise
modified from time to time, including, without limitation, all extensions,
renewals, restatements, rearrangements and refundings hereof and increases of
any Facility.
"Annualized Operating Cash Flow" means, for any fiscal quarter of the
Borrowers, an amount equal to Operating Cash Flow for such fiscal quarter,
multiplied by, four.
"Annualized Operating Cash Flow to Pro Forma Debt Service Ratio" means,
at the date of any determination, the ratio of (a) Annualized Operating Cash
Flow for any fiscal quarter to (b) Pro Forma Debt Service.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Eurodollar Lending Office in the case of Eurodollar Loans and all
amounts payable in respect thereof and such Lender's Domestic Lending Office in
the case of Base Rate Loans, all amounts payable in respect thereof and all
other amounts payable to such Lender pursuant to this Agreement or any other
Loan Document.
"Applicable Margin" means
(a) with respect to Revolving Credit Loans (i) for the period
from the Closing Date until the first Adjustment Date after the Closing Date,
the per annum percentage equal to the percentages set forth in column B below,
with respect to Base Rate Loans, and column C below, with respect to the
Eurodollar Loans corresponding to the Senior Funded Debt Ratio range set forth
in column A below, based on the pro forma calculation of the Senior Funded Debt
Ratio set forth in the Compliance Certificate to be delivered by the Borrowers
on the Closing Date pursuant to Section 5.1(e), and (ii) for any subsequent
period from and including any Adjustment Date, beginning with the first
Adjustment Date after the Closing Date, to the next Adjustment Date to occur, if
the Senior Funded Debt Ratio on the first day of such period is within a range
set forth in column A below, the per annum percentage equal to the percentage
set forth for that range in column B below, with respect to the Base Rate Loans,
and column C below, with respect to the Eurodollar Loans
A B C
Less than or Equal to: But Greater than:
6.25 to 1.00 1.000%
2.000%
6.25 to 1.00 5.75 to 1.00 0.750%
1.750%
5.75 to 1.00 5.25 to 1.00 0.500%
1.500%
5.25 to 1.00 4.75 to 1.00 0.250%
1.250%
4.75 to 1.00 4.25 to 1.00 0.000%
1.000%
4.25 to 1.00 3.75 to 1.00 0.000%
0.750%
3.75 to 1.00 0.000%
0.625%
provided, if the Financial Statements and the related Compliance
Certificate for any fiscal quarter required by Sections 6.1 and 6.2(b) are not
delivered to the Administrative Agent on or before the date when due and the
Applicable Margin for Revolving Credit Loans indicated by the Senior Funded Debt
Ratio for such fiscal quarter is increased for the subsequent period from that
previously in effect, the Applicable Margin for Revolving Credit Loans during
the period from the date on which such Financial Statements and related
Compliance Certificate are due until the date on which the same are received by
the Administrative Agent shall be the Applicable Margin as so increased; and
Notwithstanding the foregoing provisions of clause (a)(ii), if
and so long as the senior unsecured long term debt rating of ACC by Moody's or
S&P shall be the equivalent of a S&P rating of BB- or better, then the
percentages set forth in column C above shall each be reduced by .125%.
(b) with respect to Term Loans, 1.75% per annum for Term Loans
accruing interest at the Base Rate and 2.75% per annum for Term Loans accruing
interest at the Adjusted Eurodollar Rate.
"Asset Sale" means, as to any Person, the sale, lease (as lessor),
assignment, transfer or other disposition for value by such Person to any other
Person, whether in a single transaction or a series of related transactions and
whether by merger, consolidation or otherwise, of any assets of such Person,
including, without limitation, any such sale, lease (as lessor), assignment,
transfer or other disposition of a System or a Franchise owned or operated by
any Borrower or any Restricted Subsidiary. In addition, if any property or asset
of any Borrower or any Restricted Subsidiary is taken pursuant to condemnation
proceedings or by eminent domain or is lost or damaged as a result of any
casualty, such taking, loss or damage shall constitute an Asset Sale.
"Asset Swap" means, as to any Person, an exchange (a portion of the
consideration of which is noncash) of assets of such Person for assets of
another Person which are similar in all material respects.
"Assignment and Acceptance" means an Assignment and Acceptance
Agreement in the form of Exhibit B, as amended, supplemented or otherwise
modified from time to time.
"Authorization" means any filing, recording and registration with, and
any validation or exemption, approval, order, authorization, consent, license,
certificate, franchise and permit from, any Governmental Authority, including,
without limitation, FCC Licenses.
"Available Capital Contributions" means, as to any Borrower and its
Restricted Subsidiaries at the time of any determination, the excess of (a) the
aggregate amount of Capital Contributions made to such Borrower and its
Restricted 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 Sections 7.15(a)(ii) and 7.15(b), and (ii) the aggregate amount of
Restricted Payments made by such Borrower and its Restricted Subsidiaries
subsequent to the Closing Date pursuant to Section 7.6(a)(iii)(B), and (iii) the
aggregate amount of Restricted Investments made by such Borrower and its
Restricted Subsidiaries subsequent to the Closing Date pursuant to clause (ii)
of Section 7.7(c), and (iv) the aggregate amount of Capital Expenditures made by
such Borrower and its Restricted Subsidiaries subsequent to the Closing Date
which were funded solely with the proceeds of any such Capital Contribution.
"Available Commitment" means, as to any Lender at the time of any
determination, the sum of such Lender's Available Revolving Credit Commitment
and Available Term Loan Commitment.
"Available Revolving Credit Commitment" means, as to any Revolving
Credit Lender at the time of any determination, an amount equal to the excess,
if any, of (a) the amount of such Revolving Credit Lender's Revolving Credit
Commitment at such time, over (b) the sum of such Revolving Credit Lender's
aggregate outstanding (i) Revolving Credit Loans and (ii) participations in L/C
Obligations at such time.
"Available Term Loan Commitment" as to any Term Loan Lender at the time
of any determination, an amount equal to the excess, if any, of (a) the amount
of such Term Loan Lender's Term Loan Commitment at such time, over (b) such Term
Loan Lender's aggregate outstanding Term Loans at such time.
"Base Rate" means, for any day, a rate of interest per annum equal to
(a) the higher of (i) the Prime Rate in effect on such day and (ii) the sum of
(A) the Federal Funds Rate in effect on such day, and (B) 1/2 of 1%, plus (b)
the Applicable Margin in effect on such day for Revolving Credit Loans or Term
Loans, as the case may be.
"Base Rate Loan" means any Loan that bears interest computed on the
basis of the Base Rate.
"Basic Subscriber" means all of the following to the extent they
receive basic cable television service provided by the Systems owned or operated
by any Borrower or any Restricted Subsidiary: (a) private residential customer
accounts which are not more than sixty days past due (including those of
employees of such 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).
"Benefitted Lender" has the meaning specified in Section 10.7(a).
Bent means Walter L. Bent and Bent & Associates, Inc.
Bent Assignment of Partnership Interests means that certain Assignment
of Partnership Interests, of even date herewith, by Bent in favor of the
Administrative Agent for the benefit of the Lenders, in substantially the form
of Exhibit L, whereby Bent assigns to the Administrative Agent for the benefit
of the Lenders, as collateral for the Obligations, all of its limited
partnership interests in Three Rivers.
"Board of Governors" means the Board of Governors of the Federal
Reserve System or any Governmental Authority which succeeds to the powers and
functions thereof.
"Borrower" means Chelsea, Northeast, Kittanning or Robinson.
"Borrower Assignment of Partnership Interests" means a Borrower
Assignment of Partnership Interests in the form of Exhibit C, as amended,
supplemented and otherwise modified from time to time.
"Borrower Change of Control" means the failure of ACC to (a) own,
directly or indirectly, at least 75% of the voting Capital Securities of each
Borrower and (b) possess, directly or indirectly, the power to direct or cause
the direction of the management and policies of each Borrower, whether through
ownership of Capital Securities of such Borrower, by contract or otherwise.
"Borrowing" means a borrowing by any Borrower on the same day under and
pursuant to this Agreement, which consists of Loans of the same Type.
"Borrowing Date" means any Business Day specified in a notice pursuant
to Section 2.3 as a date on which a Borrower requests the Lenders to make Loans
hereunder.
"Business" has the meaning specified in Section 4.19.
"Business Day" means a day of the year on which banks are not
authorized or required to be closed in New York City or Houston, Texas and, if
the applicable Business Day relates to any Eurodollar Loans, on which dealings
are carried on between banks in the London interbank market.
"Cable Act" means the Cable Communications Policy Act of 1984 and the
Cable Television Consumer Protection Act of 1992.
"Calculation Date" has the meaning specified in the definition of
Pro Forma Debt Service.
"Capital Contribution" means, as to any Borrower or any Restricted
Subsidiary, (a) any cash capital contribution to such Borrower or such
Restricted Subsidiary by ACC, the Rigas Family or any Affiliate of any Borrower
or any Restricted Subsidiary, including, without limitation, as a result of the
purchase of the Capital Securities of such Borrower or such Restricted
Subsidiary or (b) any loan or advance made in cash to such Borrower or such
Restricted Subsidiary by ACC, the Rigas Family or any such Affiliate that
constitutes Affiliate Subordinated Indebtedness, in each case made after the
Closing Date.
"Capital Expenditures" means, at any date of determination, (a) the
aggregate amount paid or accrued by the Borrowers and the Restricted
Subsidiaries for the rental, lease, purchase, construction or use of any
property during such period, the value or cost of which, in accordance with GAAP
as in effect on the date of this Agreement, would appear on the consolidated and
combined balance sheet of the Borrowers and the Restricted Subsidiaries in the
category of property, plant, or equipment during the last four fiscal quarters,
less (b) the aggregate amount of Capital Contributions made to finance such
Capital Expenditures and so included in the determination of the Borrowers'
compliance with its financial covenants as set forth in Compliance Certificates
covering such four fiscal quarter period.
"Capital Lease" means a lease of (or other agreement conveying the
right to use) real or personal property that is required to be classified and
accounted for as a capital lease under GAAP as in effect on the date of this
Agreement and, for purposes of this Agreement, the amount of any Capital Lease
obligation at any date shall be the capitalized amount thereof at such date as
determined in accordance with GAAP in effect on the date of this Agreement.
"Capital Security" means (a) any share, membership, partnership or
other percentage interest, unit of participation or other equivalent (however
designated) of an equity security or other equity interest in a Person and (b)
any debt security or other evidence of Indebtedness which is convertible into or
exchangeable for, or any option, warrant or other right to acquire, any Capital
Security of any type referred to in clause (a) of this definition.
"Cash Balance" means, at any date of determination, the aggregate
amount of cash and Cash Equivalents of the Borrowers and the Restricted
Subsidiaries at such date, as determined on a consolidated and combined basis in
accordance with GAAP.
"Cash Equivalents" means, at the time of purchase or other acquisition
by any Borrower or any Restricted Subsidiary, (a) obligations issued or directly
and fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof with a remaining maturity not exceeding one year, (b)
time deposits and certificates of deposit having maturities of not more than one
year 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 S&P or Moody's, (c)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (a) and (b) entered into with any
domestic commercial bank meeting the qualifications specified in clause (b)
above, (d) commercial paper with maturities of not more than 270 days and a
published rating of not less than A-1 by S&P (or the equivalent rating then in
effect) or P-1 by Moody's (or the equivalent rating then in effect) and (e) debt
securities with a remaining maturity not exceeding one year issued by any Person
organized under the laws of any state of the United States of America or of the
District of Columbia, which securities are rated within the two highest rating
categories by S&P or Moody's.
"CATV System" means any System that is a community antenna television
system as such term is commonly understood in the cable television industry.
"Charter Documents" means, with respect to any Person, (a) the articles
or certificate of formation, incorporation or organization (or the equivalent
organizational documents) of such Person, (b) the bylaws, partnership agreement,
limited liability company agreement or regulations (or the equivalent governing
documents) of such Person and (c) each document setting forth the designation,
amount and relative rights, limitations and preferences of any class or series
of such Person's Capital Securities or of any rights in respect of such Person's
Capital Securities.
"Chelsea" means Chelsea Communications, Inc., a Delaware corporation.
"Chelsea Loan Agreement" means that certain $450,000,000 Loan
Agreement, dated as of the 25th day of September, 1989, among Chelsea, as the
borrower thereunder, the banks whose names are set forth on the signature pages
thereof and The Toronto-Dominion Bank Trust Company and NCNB Texas National Bank
(n.k.a. NationsBank of Texas, Inc.), as agents, and the other loan documents
executed in connection therewith, each as amended, supplemented and otherwise
modified to the date of this Agreement.
"Closing Date" means the first date on which a Loan is made or a Letter
of Credit is issued to any Borrower under this Agreement.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property and assets of the Loan Parties, now
owned or hereinafter acquired, on which a Lien is purported to be created
pursuant to any Security Document.
"Commitment" means, as to any Lender on any day, the sum of the Term
Loan Commitment and the Revolving Credit Commitment of such Lender.
"Commonly Controlled Entity" means 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 any Borrower and
which is treated as a single employer under Section 414 of the Code.
"Communications Act" means the Communications Act of 1934.
"Compliance Certificate" means a certificate of a Responsible Officer
of each Borrower in the form of Exhibit D, or in such other form as the
Administrative Agent may reasonably request.
"Contractual Obligation" means, as to any Person, any provision of any
Capital 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 assets
is bound.
"Convert," "Conversion" or "Converted" each refers to a conversion of
Loans of any Type into Loans of another Type and includes the continuation of
Eurodollar Loans as Eurodollar Loans having a new Interest Period.
"Copyright Act" means Title 17 of the United States Code.
"Default" means any of the events specified in Section 8, whether or
not any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Default Period" has the meaning specified in Section 7.15.
"Default Rate" means the Base Rate for Revolving Credit Loans, or for
Term Loans, as the case may be, plus 2.0%.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Domestic Lending Office" means, with respect to each Lender, (a) the
branch or office of such Lender set forth below such Lender's name under the
heading "Domestic Lending Office" on Annex A or, in the case of a Lender that
becomes a Lender pursuant to an assignment, the branch or office of such Lender
set forth under the heading "Domestic Lending Office" in the Assignment and
Acceptance Agreement giving effect to such assignment or (b) such other branch
or office of such Lender designated by such Lender to the Administrative Agent
and the Borrowers from time to time as the branch or office at which its Base
Rate Loans are to be made or maintained.
"Eligible Assignee" means at any time any Lender, bank, finance
company, insurance company, savings and loan association, savings bank, other
financial institution or fund that (a) is regularly engaged in making or
purchasing loans or (b) if not regularly engaged in making commercial loans, is
a "qualified institutional buyer" or an "accredited investor" (as defined in
Rule 144A and Regulation D, respectively, under the Securities Act of 1933).
"Environmental Laws" means any and all Requirement of Law regulating,
relating to or imposing liability or standards of conduct concerning protection
of human health or the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors.
"Eurodollar Lending Office" means, with respect to each Lender, (a) the
branch or office of such Lender set forth below such Lender's name under the
heading "Eurodollar Lending Office" on Annex A or, in the case of a Lender that
becomes a Lender pursuant to an assignment, the branch or office of such Lender
set forth under the heading "Eurodollar Lending Office" in the Assignment and
Acceptance Agreement giving effect to such assignment or (b) such other branch
or office of such Lender designated by such Lender to the Administrative Agent
and the Borrowers from time to time as the branch or office at which its
Eurodollar Rate Loans are to be made or maintained.
"Eurodollar Loans" means any Loan that bears interest computed on the
basis of the Eurodollar Rate.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Loan comprising part of the same Borrowing or Conversion, the average (rounded
to the nearest 1/16th of 1%) determined by the Administrative Agent of the
interest rates per annum at which deposits in United States Dollars are offered
to the Administrative Agent, in the London interbank market at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period, which deposits are for a period equal to such Interest Period
and in an amount substantially equal to each Eurodollar Loan that the
Administrative Agent would make or Convert, as the case may be, in its capacity
as a Lender as a part of such Borrowing or Conversion.
"Eurodollar Rate Reserve Percentage" means for any day in an Interest
Period for any Eurodollar Loan, the reserve percentage applicable on that day
under regulations issued from time to time by the Board of Governors for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities having a term equal to such Interest
Period.
"Event of Default" means any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Facilities" means collectively, the Revolving Credit Facility, the
Letters of Credit and the Term Loan Facility.
"FCC" means the Federal Communications Commission or any Governmental
Authority which succeeds to the powers and functions thereof.
"FCC License" means any license or permit issued by the FCC, including,
without limitation, any license issued for the operation of a CATV System, a
SMATV System, a community antenna relay system, microwave system or an earth
station.
"Federal Funds Rate" means, for each day, the rate per annum (rounded
upwards to the nearest 1/16th of 1%) equal to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next succeeding Business Day) by the Federal
Reserve Bank of New York or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"Fee Letters" means each of the letter agreements from the Borrowers to
each of the Managing Agents concerning certain fees payable by the Borrowers in
connection with this Agreement, as each of the same may be amended, supplemented
and otherwise modified from time to time.
"Financial Statement Adjustments" means, at any time, in the case of
the Financial Statements (other than the Initial Financial Statements) then or
theretofore delivered to the Lenders pursuant to Sections 6.1(a) and 6.1(b),
such cumulative pro forma adjustments to such Financial Statements as are
necessary at such time to restate such Financial Statements to be in accordance
with GAAP as in effect on the date of this Agreement and as applied in the
preparation of such Financial Statements on a basis consistent with the basis on
which GAAP as so in effect was applied in the preparation of the Initial
Financial Statements.
"Financial Statements" means the Initial Financial Statements and the
financial statements of the Borrowers and the Restricted Subsidiaries required
to be delivered to the Lenders by Sections 6.1(a) and 6.1(b).
"First Carolina Acquisition" has the meaning specified in Section 4.18.
"Fixed Charges" means, for any period, without duplication, the sum for
such period of (i) Interest Expense, (ii) commitment fees in respect of any
Senior Funded Debt payable by the Borrowers and the Restricted Subsidiaries,
(iii) Capital Expenditures of the Borrowers and the Restricted Subsidiaries,
(iv) Management Fees paid by the Borrowers and the Restricted Subsidiaries (less
Management Fees paid with Capital Contributions), (v) the excess, if any, of the
aggregate amount of Revolving Credit Loans outstanding at the beginning of such
period over the Revolving Credit Commitment scheduled to be in effect at the end
of such period in accordance with the provisions of this Agreement, (vi) the
aggregate amount of scheduled repayments of the Term Loan, and (vii) taxes paid
by the Borrowers and the Restricted Subsidiaries, all as determined on a
consolidated and combined basis in accordance with GAAP.
"Franchise" means 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" means generally accepted accounting principles and practices as
in effect from time to time and concurred in by the independent certified
accountants certifying the Financial Statements required by Section 6.1(a),
applied on a basis consistent (except for changes concurred in by such
independent certified public accountants) with the most recent audited Financial
Statements delivered to the Lenders, except as otherwise specifically provided
herein.
"Gans Family" means Joseph S. Gans, Sr., Irene F. Gans, Joseph S. Gans,
III, Janice Gans Morsey and their respective spouses and children and trusts,
partnerships, corporations and other entities controlled by one or more of 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" means the collective reference to (a) each general
partner of any Loan Party which is a partnership and (b) each general partner of
any Loan Party formed or acquired after the Closing Date which is a partnership
and, in each case, including any successor to any thereof to the extent
permitted by Section 7.8.
"Governmental Approval" means any authorization, consent, approval,
permit, franchise, certificate, license, implementing order or exemption of, or
registration or filing with, any Governmental Authority.
"Governmental Authority" means 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.
"Guarantor" means each Restricted Subsidiary and any other Person
delivering a Guaranty Agreement in connection with this Agreement.
"Guaranty" means, for any Person, without duplication, any liability,
contingent or otherwise, of such Person guaranteeing or otherwise becoming
liable for any obligation of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
liability of such Person, direct or indirect, (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such obligation or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such obligation, (b) to purchase property, securities or services for the
purpose of assuring the owner of such obligation of the payment of such
obligation or (c) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such obligation; provided that the term "Guaranty" does
not include endorsements for collection or deposit in the ordinary course of the
endorser's business. The amount of any liability assumed or acquired by the
guaranteeing Person shall be the lower of (x) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
is made and (y) the maximum amount for which such guaranteeing Person may be
liable pursuant to the terms of the Guaranty, 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 liability, assumed or
acquired by the guaranteeing Person shall be such guaranteeing Person's maximum
reasonably anticipated liability in respect thereof as determined by such
guaranteeing Person in good faith.
"Guaranty Agreement" means the Guaranty Agreement in the form of
Exhibit E, as amended, supplemented or otherwise modified from time to time.
"Head End" means 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.
"Highest Lawful Rate" means, with respect to each Agent and each
Lender, the maximum nonusurious interest rate, if any, that at any time or from
time to time may be contracted for, taken, reserved, charged or received with
respect to any Note or on other amounts, if any, due to such Agent or such
Lender pursuant to this Agreement or any other Loan Document under Requirement
of Law applicable to such Agent or such Lender, as the case may be, which are
presently in effect or which may hereafter be in effect.
"Home" means 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" means a Home which can be connected by a single drop line
from an Active Plant.
"Indebtedness": with respect to any Person, means without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, (c)
all obligations of such Person under conditional sale or other title retention
agreements relating to property or assets purchased by such Person, (d) all
obligations of such Person issued or assumed as the deferred purchase price of
property, assets or services (excluding trade accounts payable incurred or
arising in the ordinary course of business, payable in accordance with customary
practices and not more than 90 days past due), (e) all Indebtedness of other
Persons secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property or assets
(including revenues, income and profit) owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (f) all
Guaranties of such Person, (g) all obligations in respect of Capital Leases of
such Person, (h) all obligations of such Person in respect of Interest Rate
Protection Agreements and (i) all obligations of such Person as an account party
in respect of surety bonds, letters of credit, bankers' acceptances and similar
instruments. The Indebtedness of any Person shall include the Indebtedness of
any partnership or joint venture in which such Person is a general partner or
member, other than to the extent that the instrument or agreement evidencing
such Indebtedness expressly limits the liability of such Person in respect
thereof pursuant to provisions and terms reasonably satisfactory to the Managing
Agents.
"Indemnified Person" means, at any time, any Person that is, or at such
time was, an Agent, a Lender, an Affiliate of an Agent or a Lender or a
director, officer, employee or agent of any of the foregoing.
"Initial Financial Statements" means (a) the March 31, 1995 audited
consolidated financial statements of Chelsea and the March 31, 1995 audited
financial statements of Northeast and (b) the unaudited consolidated and
combined balance sheet of Borrowers and the Restricted Subsidiaries as at
December 31, 1995 and the related unaudited consolidated statements of income
and cash flows for such Borrowers' fiscal quarter ended on such date, copies of
which have been made available to the Agents and the Lenders identified on the
signature pages hereof prior to the date of this Agreement.
"Initial Funding Date" means the date on which the conditions precedent
set forth in Section 5.1 are satisfied or waived by the requisite Lenders and
the initial Loans are made hereunder.
"Insolvency" means with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent" means pertaining to a condition of Insolvency.
"Intellectual Property" has the meaning specified in Section 4.8.
Intercompany Indebtedness Subordination Agreement means a
Subordination Agreement in the form of Exhibit A-2, as amended, supplemented and
otherwise modified from time to time.
"Interest Expense" means, for any period, the aggregate amount of
interest expense paid in cash by the Borrowers and the Restricted Subsidiaries
with respect to Senior Funded Debt during such period, as determined on a
consolidated and combined basis in accordance with GAAP as in effect on the date
of this Agreement.
"Interest Payment Date" means the last day of March, June, September
and December of each year.
"Interest Period" means, for each Eurodollar Loan, the period (a)
commencing (i) for each such Loan comprising part of the same Borrowing, on the
date such Loan is made, and (ii) for each such Loan into which any Loan has been
Converted, the date of that Conversion and (b) ending on the last day of the
period selected by the Borrowers pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three, six or twelve months (if
available), as the Responsible Officer may, upon notice received by the
Administrative Agent not later than 11:00 A.M., Houston, Texas time on the third
Business Day prior to the first day of such Interest Period, select; provided,
however, that:
(a) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
(b) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, provided, that if such
extension would cause the last day of such Interest Period to occur in the next
succeeding calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day;
(c) a Responsible Officer may not select any Interest Period which ends
after any date on which (i) an installment payment of principal on the Term
Loans is due pursuant to Section 2.2(c) unless, after giving effect to such
selection, the aggregate unpaid principal amount of Base Rate Loans and
Eurodollar Loans having Interest Periods which end on or prior to such principal
installment payment date shall be at least equal to the principal amount of Term
Loans required to be paid on such principal installment payment date pursuant to
Section 2.2(c) or (ii) the Revolving Credit Commitments are scheduled to reduce
pursuant to Section 2.7 unless, after giving effect to such selection, the
aggregate unpaid principal amount of Base Rate Loans and Eurodollar Loans having
Interest Periods which end on or prior to such reduction date shall be at least
equal to the principal amount of the Revolving Loans required to be prepaid
pursuant to Section 2.7 as a result of such reduction; and
(d) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date (in the case of Revolving Credit Loans) or
beyond the date final payment is due on the Term Loans, as the case may be,
shall end on the Revolving Credit Termination Date or such due date, as
applicable.
"Interest Rate Protection Agreement" means, for any Person, any
interest rate swap, reverse swap, cap or collar agreement or similar arrangement
providing for protection against interest rate or currency exchange rate risks
or the exchange of nominal interest obligations, either generally or under
specific contingencies between such Person and any other Person.
"Investment" means, as to any Person, (a) any direct or indirect
purchase or other acquisition by such Person of the Capital Securities, bonds,
notes, debentures, or other securities or obligations of, or any other interest
in, any other Person, or any assets constituting a business unit of any other
Person, (b) any direct or indirect loan, advance, extension of credit or capital
contribution by such Person to any other Person (other than advances to
employees for moving and travel expenses, drawing accounts and expenditures in
the ordinary course of business) or (c) any joint venture or similar arrangement
by such Person with any other Person, including, without limitation, (i) all
Acquisitions and (ii) all Indebtedness and accounts receivable owed to such
Person by such other Person (including, any such Indebtedness or accounts
receivable which are not current assets or do not arise out of sales to or
services for such other Person in the ordinary course of business).
"Issuing Lender" means Toronto Dominion and any successor
Administrative Agent appointed pursuant to Section 9.9, provided, in the event
that Toronto Dominion shall be replaced as the Administrative Agent pursuant to
Section 9.9, (a) no Letter of Credit shall be issued by Toronto Dominion on or
after the date of such replacement and (b) the replacement Administrative Agent
shall be an Issuing Lender from and after the date of such replacement.
"Kittanning" means Kittanning Cablevision Inc., a Delaware corporation.
"L/C Application" means an application, in form and substance
satisfactory to the Issuing Lender, requesting the Issuing Lender to issue a
Letter of Credit.
"L/C Fee Payment Date" means the last day of each March, June,
September and December.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of all unpaid Reimbursement Obligations.
"Lender" means at any time any Person then having any or all of the
rights or obligations of a Lender and which (a) is identified as a Lender on the
signature pages hereof or (b) has been assigned such rights or obligations
pursuant to any Assignment and Acceptance.
"Letters of Credit" has the meaning specified in Section 3.1.
"Lien" means, with respect to any property or asset (or any revenues,
income or profits therefrom) of any Person (in each case whether the same is
consensual or nonconsensual or arises by contract, operation of law, legal
process or otherwise), (a) any mortgage, lien, security interest, pledge,
attachment, levy or other charge or encumbrance of any kind thereupon or in
respect thereof or (b) any other arrangement under which the same is
transferred, sequestered or otherwise identified with the intention of
subjecting the same to, or making the same available for, the payment or
performance of any liability in priority to the payment of the ordinary,
unsecured creditors of such Person. For the purposes of this Agreement, a Person
shall be deemed to own subject to a Lien any asset that it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention agreement relating to such
asset.
"Litigation" means any case, proceeding, claim, grievance, lawsuit or
investigation conducted by or pending before any Governmental Authority or any
arbitration proceeding.
"Loan" means any Revolving Credit Loan and any Term Loan made by any
Lender pursuant to this Agreement.
"Loan Documents" means this Agreement, the Notes, the Fee Letters, the
Guaranty Agreement, the Security Documents, any Partnership Consents, each L/C
Application, the Subordination Agreements and all other written agreements,
documents, instruments and certificates now or hereafter executed or delivered
by any Borrower, any Subsidiary or any Affiliate of any Borrower to or for the
benefit of any Agent or any Lender pursuant to or in connection with any of the
foregoing, and any and all amendments, modifications, supplements, renewals,
extensions, increases, restatements, rearrangements and substitutions from time
to time of all or any part of the foregoing.
"Loan Parties" means the collective reference to ACC, the Gans Family,
Bent, the Borrowers, the Subsidiaries and any other Person hereafter executing
and delivering a Security Document, Guaranty Agreement, Management Subordination
Agreement, Affiliate Subordination Agreement or any other Loan Document for the
benefit of the Lenders.
"Loan Percentage" means, as to any Lender at the time of any
determination, the percentage which the aggregate principal amount of such
Lender's outstanding Loans and participations in L/C Obligations at such time
represents of the aggregate principal amount of all outstanding Loans and
participations in L/C Obligations of all Lenders at such time.
"Management Agreements" means that certain (i) Amended and Restated
Management Services Agreement for Managed Systems made as of the 11th day of
March, 1988, by and between ACI, and Adelphia Cablevision, L.P.; (ii) Amended
and Restated Management Services Agreement for Managed Systems made as of the
11th day of March, 1988, by and between ACI, and Better T.V., Inc. of
Bennington, a Vermont corporation; (iii) Amended and Restated Management
Services Agreement for Managed Systems made as of the 11th day of March, 1988,
by and between ACI, and Campbell Communications, Inc., a Massachusetts
corporation; (iv) Amended and Restated Management Services Agreement for Managed
Systems made as of the 11th day of March, 1988, by and between ACI, and
Chautauqua County Cable Vision, Inc., a New York corporation; (v) Amended and
Restated Management Services Agreement for Managed Systems made as of the 11th
day of March, 1988, by and between ACI, and Harbor Vue Cable TV, Inc., a New
York corporation; (vi) Amended and Restated Management Services Agreement for
Managed Systems made as of the 11th day of March, 1988, by and between ACI, and
Hoosick Cablevision, Inc., a New York corporation; (vii) Management Services
Agreement for Managed Systems made as of the 1st day of January, 1995, by and
between ACC and Plato Communications, Inc., a Delaware corporation (now known as
Kittanning); (viii) Amended and Restated Management Services Agreement for
Managed Systems made as of the 25th day of September, 1989, by and between ACI
and Moutain Cable Company, a Vermont limited partnership and ACC; (ix) Amended
and Restated Management Services Agreement for Managed Systems made as of the
11th day of March, 1988, by and between ACI and Mt. Lebanon Cablevision, Inc., a
Pennsylvania corporation; (x) Amended and Restated Management Services Agreement
for Managed Systems made as of the 11th day of March, 1988, by and between ACI
and Multi-Channel T.V. Cable Company, an Ohio corporation; (xi) Management
Services Agreement for Managed Systems made as of the 1st day of January, 1995,
by and between ACTV and Northeast Cable, Inc., a Delaware corporation; (xii)
Amended and Restated Management Services Agreement for Managed Systems made as
of the 11th day of March, 1988, by and between ACI and Rigpal Communications,
Inc., a Pennsylvania corporation; (xiii) Management Services Agreement for
Managed Systems made as of the 9th day of January, 1996, by and between ACI and
Robinson/Plum Cablevision, L.P., a Pennsylvania limited partnership; (xiv)
Amended and Restated Management Services Agreement for Managed Systems made as
of the 11th day of March, 1988, by and between ACI and South Shore Cablevision,
Inc., a Massachusetts corporation; (xv) Management Services Agreement for
Managed Systems made as of the 10th day of March, 1994, by and between ACI and
Three Rivers Cable Associates, L.P., a Pennsylvania limited partnership; (xvi)
Amended and Restated Management Services Agreement for Managed Systems made as
of the 11th day of March, 1988, by and between ACI and Upper St. Clair
Cablevision, Inc., a Pennsylvania corporation; and (xvii) any other management
agreement to which any Borrower or Subsidiary is a party, approved by the
Managing Agents and the Required Lenders (which approval will not be
unreasonably withheld), as amended, supplemented and otherwise modified to the
date of this Agreement and from time to time thereafter to the extent permitted
by Section 7.8.
Management Fee Cap Amount has the meaning specified in Section 7.15.
"Management Fees" means amounts payable, subject to the terms of a
Management Subordination Agreement, by any Borrower or any Restricted Subsidiary
to any Manager pursuant to a Management Agreement on account of compensation,
fees, salary or otherwise, for providing management or supervisory services to
such Borrower or such Restricted Subsidiary in a maximum amount not to exceed 5%
of the Borrowers and the Restricted Subsidiaries gross revenue.
"Manager" means ACC, ACI, ACTV or any Affiliate of ACC or any other
Person approved by the Managing Agents and the Required Lenders (which approval
will not be unreasonably withheld), which has delivered to the Administrative
Agent a certified copy of a duly executed and delivered Management Agreement and
a duly executed Management Subordination Agreement which is in full force and
effect and not being contested by any Person.
"Management Subordination Agreement" means a Management Subordination
Agreement to be executed by each Borrower, Subsidiary and Manager party to a
Management Agreement and delivered to the Administrative Agent for the benefit
of the Lenders, in the form of Exhibit F, as such agreements may be amended,
supplemented or otherwise modified from time to time.
"Managing Agents" means Toronto Dominion, NationsBank, Chemical Bank,
The Bank of Nova Scotia and CIBC Inc., each in its capacity as a Managing Agent
in connection with this Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, properties or assets, liabilities, condition (financial or
otherwise), results of operations or prospects of the Borrowers and the
Restricted Subsidiaries considered as a whole, (b) the ability of the Borrowers,
considered as a whole, to perform their payment and other obligations under the
Loan Documents or (c) the validity or enforceability of this Agreement or any
other Loan Document or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder.
"Materials of Environmental Concern" means 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.
"Moody's" means Moody's Investors Service, Inc.
Mountain means Mountain Cable Company, a Vermont limited partnership.
Mountain Partners means Pericles Communications Corporation, Mountain
Cable Communications Corporation, Upper St. Clair Cablevision, Inc., Rigpal
Communications, Inc. and Mt. Lebanon Cablevision, Inc.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NationsBank" means NationsBank of Texas, N.A.
"Net Income" means, for any period, the aggregate net income (or net
loss) of the Borrowers and the Restricted Subsidiaries for such period as
determined on a consolidated and combined basis in accordance with GAAP as in
effect on the date of this Agreement.
"Net Proceeds" means, (a) with respect to any Asset Sale or Asset Swap
by any Borrower or any of the Restricted Subsidiaries, 100% of the gross cash
proceeds (including, without limitation, 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 or Asset Swap 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 and (b) the proceeds of any award or compensation for any property or
assets of any Borrower or any Restricted Subsidiary taken by condemnation or
eminent domain and the proceeds of any insurance award with respect to the loss
or damage of any property, in each case, as and when received by any Borrower or
any Restricted Subsidiary.
"Non-Excluded Taxes" has the meaning specified in Section 2.15.
"Northeast" means Northeast Cable, Inc., a Delaware corporation.
"Northeast/Robinson Credit Agreement" means that certain $190,000,000
Credit Agreement, dated as of October 27, 1995, among Plato Communications, Inc.
(now known as Kittanning), Northeast, Martha s Vineyard Cablevision, L.P. and
Robinson, as the borrowers, the several lenders parties thereto from time to
time, and Chemical Bank as the administrative agent, and the other loan
documents executed in connection therewith, each as amended, supplemented and
otherwise modified to the date of this Agreement.
"Note" means the collective reference to the Revolving Credit Notes
and the Term Notes.
"Notice of Borrowing" means a written notice substantially in the form
of Exhibit G delivered by any Borrower to the Administrative Agent in accordance
with Section 2.3.
"Notice of Conversion" means a written notice substantially in the form
of Exhibit H delivered by any Borrower to the Administrative Agent in accordance
with Section 2.9.
"Notice of Letter of Credit Request" means a written notice
substantially in the form of Exhibit I delivered by a Borrower to the Issuing
Lender in accordance with Section 3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on (including, without limitation, interest accruing at the then
applicable rate provided herein after the maturity of the Loans and interest
accruing at the then applicable rate provided herein after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to any 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 any Borrower or any Restricted
Subsidiary to any Agent or any Lender, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, any Note, any other
Loan Document, the Letters of Credit or any Interest Rate Protection Agreement
entered into by any Borrower with any Lender or any other document made,
delivered or given in connection therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all reasonable fees and disbursements
of counsel to any Agent, the Issuing Lender, or to any Lender that are required
to be paid by the Borrowers or any Restricted Subsidiary pursuant to the terms
of this Agreement, any other Loan Document, the Letters of Credit or any
Interest Rate Protection Agreement entered into by any Borrower with any Lender
or otherwise).
"Operating Cash Flow" means, for any period, (a) the sum of (i) Net
Income for such period and (ii) to the extent deducted in determining such Net
Income, (A) interest expense, (B) Management Fees, (C) income taxes, (D)
depreciation, (E) amortization and (F) all other non-cash expenses of the
Borrowers and the Restricted Subsidiaries, as determined on a consolidated and
combined basis in accordance with GAAP as in effect on the date of this
Agreement, less (b) to the extent included in determining such Net Income, all
income and gains and all fees, interest income, dividends and distributions
received from Affiliates to the extent income and gains and 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 Restricted
Subsidiaries shall have made one or more Acquisitions or Asset Swaps during such
period, Operating Cash Flow for such period shall be adjusted on a pro forma
basis to give effect to all such Acquisitions and Asset Swaps as if they had
occurred at the beginning of such period; and provided further, that if any
Borrower or any of its Restricted Subsidiaries shall have effected one or more
Asset Sales or Asset Swaps 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 and Asset Swaps as if they had occurred at the beginning of such period.
"Operating Cash Flow to Interest Expense Ratio" means, at the date of
any determination, the ratio of (a) Operating Cash Flow for the immediately
preceding fiscal quarter to (b) Interest Expense for such fiscal quarter.
"Operating Cash Flow to Fixed Charges Ratio" means, at the date of any
determination, the ratio of (a) Operating Cash Flow for the immediately
preceding four fiscal quarters to (b) Fixed Charges for such fiscal quarters.
"Participant" has the meaning specified in Section 10.6(b).
"Partnership Assignment Agreements" means each Borrower Assignment of
Partnership Interests, each Subsidiary Assignment of Partnership Interests and
each other agreement executed and delivered by any Person pursuant to this
Agreement assigning, pledging and transferring to the Administrative Agent all
or any portion of the partnership interests of such Person in any Restricted
Subsidiary of any Borrower, as the same may be amended, supplemented and
modified from time to time.
Partnership Consent has the meaning specified in Section 5.1(h).
"Pay Subscriber" has the meaning generally ascribed to such term in the
cable television industry.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
Permitted Intercompany Indebtedness means Subordinated Indebtedness of
the type described in subsections (a) and (b) of the definition of Subordinated
Indebtedness.
"Permitted Liens" means, as applied to the property or assets (or any
revenues, income or profits therefrom), (a) Liens for taxes, assessments and
other governmental charges or levies not yet due or which (if foreclosure,
distraint, sale or other similar proceedings have not commenced or, if
commenced, have been stayed) are being contested in good faith and by
appropriate proceedings and adequate reserves for which are maintained on the
books of such Person 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
sixty days or which (if foreclosure, distraint, sale or other similar
proceedings have not commenced or, if commenced, have been stayed) are being
contested in good faith by appropriate proceedings and adequate reserves for
which are maintained on the books of such Person in accordance with GAAP; (c)
pledges or deposits in connection with workers' compensation, unemployment
insurance and other social security legislation (other than pursuant to ERISA or
Section 412(n) of the Code); (d) deposits to secure the performance of bids,
trade contracts (other than for borrowed money), 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 any Borrower
or any Restricted Subsidiary; (f) any interest or title of a lessor of assets
being leased by any Person pursuant to any Capital Lease permitted by Section
7.2(c); (g) Liens under Pole Rental Leases on cables and other property affixed
to transmission poles; (h) Liens securing Indebtedness of the Borrowers and the
Restricted Subsidiaries permitted by Section 7.2(d) incurred to finance the
acquisition of fixed or capital assets, provided that (i) such Liens shall be
created substantially simultaneously with the acquisition of such fixed or
capital assets, (ii) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness, provided that in no event may
such Liens encumber any Capital Securities of any Borrower or any Restricted
Subsidiary, (iii) the amount of Indebtedness secured thereby is not increased
and (iv) the principal amount of Indebtedness secured by any such Lien shall at
no time exceed 100% of the original purchase price of such property at the time
it was acquired; and (i) Liens created pursuant to the Security Documents.
"Permitted Line of Business" has the meaning specified in Section 7.13.
"Person" means any individual, sole proprietorship, partnership,
corporation, business trust, joint stock company, mutual company, limited
liability company, business trust, trust, estate, unincorporated association,
joint venture, union, employee organization, Governmental Authority or other
entity of whatever nature.
"Plan" means 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.
"Pole Rental Leases" means leases under which any 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 any Borrower or any of its Subsidiaries.
"Prime Rate" means the fluctuating prime commercial lending rate of
interest adopted by the Administrative Agent, as its reference rate for the
determination of interest rates for loans of varying maturities in Dollars to
residents of the United States of America of varying degrees of creditworthiness
and being quoted at such time by such bank as its "prime rate." The Prime Rate
shall be adjusted automatically, without notice, on the effective date of any
change in such prime commercial lending rate. The Prime Rate is not necessarily
the lowest rate of interest of the Administrative Agent.
"Pro Forma Debt Service" means, at any date of determination, the sum
of all pro forma Interest Expense, commitment fees and principal payments,
including the current maturities thereof, due in respect of Senior Funded Debt,
during the four fiscal quarters of the Borrowers next succeeding such date of
determination; provided that (i) pro forma Interest Expense with respect to
outstanding Loans and commitment fees relating to Revolving Credit Loans shall
be determined (A) assuming that, with respect to each fiscal quarter comprising
a portion of such four fiscal quarter period, Revolving Credit Loans in an
aggregate principal amount equal to the lesser of (I) the aggregate amount of
Revolving Credit Loans outstanding on such date of determination and (II) the
Revolving Credit Commitment which, as at such date, is scheduled to be in effect
at the beginning of such quarter in accordance with the provisions of this
Agreement will be in effect during such quarter and (B) assuming that (I) all
Eurodollar Loans outstanding on such date of determination shall bear interest
until the end of the then current Interest Period with respect thereto at the
rate applicable thereto on such date of determination and shall bear interest
from and after the end of such then current Interest Period with respect
thereto, at the three-month Adjusted Eurodollar Rate in effect on the date of
calculation on which Pro Forma Debt Service is being calculated (the
"Calculation Date") and (II) all Base Rate Loans shall bear interest during such
period at the Base Rate in effect on such Calculation Date (provided that (x) if
the aggregate principal amount of Loans to be outstanding is ever determined
pursuant to clause (i)(A)(II) of this provision, the Revolving Credit Loans
shall be deemed repaid in the following order, first, Base Rate Loans and,
second, Eurodollar Loans and (y) the interest rate applicable to all Revolving
Credit Loans shall be calculated after giving effect to any Interest Rate
Protection Agreement in effect with respect to such Revolving Credit Loans),
(ii) pro forma principal payments with respect to Revolving Credit Loans
outstanding under this Agreement shall be equal to the excess of the aggregate
amount of Revolving Credit Loans outstanding on such date of determination over
the Revolving Credit Commitment scheduled to be in effect at the end of such
period in accordance with the provisions of this Agreement, (iii) pro forma
Interest Expense with respect to all other Senior Funded Debt shall be
determined based upon the applicable interest rate in effect on such date of
determination assuming that the principal amount of such Indebtedness on such
date of determination remains outstanding throughout such period, adjusted to
give effect to any scheduled principal payments during such period and after
giving effect to any Interest Rate Protection Agreement in effect with respect
to such Senior Funded Debt and (iv) pro forma principal payments with respect to
all such other Senior Funded Debt shall be equal to the excess of the principal
amount of such Senior Funded Debt on such date of determination over the
principal amount of such Senior Funded Debt scheduled to be outstanding at the
end of such period.
"Properties" has the meaning specified in Section 4.19.
"Refinancing" means the payment of the outstanding Indebtedness,
together with all accrued interest and fees thereon and other amounts due
thereunder to the Closing Date, of (i) Chelsea under the Chelsea Loan Agreement
in an aggregate amount not to exceed $335,000,000 and (ii) Kittanning,
Northeast, Martha s Vineyard Cablevision, L.P. and Robinson under the
Northeast/Robinson Credit Agreement in an aggregate amount not to exceed
$190,000,000.
"Register" has the meaning specified in Section 10.6(d).
"Regulations G and U" means Regulations G and U of the Board of
Governors.
"Reimbursement Obligations" means the obligations of the Borrowers to
reimburse the Issuing Lender pursuant to Section 3.4 for amounts drawn under
Letters of Credit.
"Reinvestment Deadline" has the meaning specified in Section 2.18(a).
"Reorganization" means, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event" means any of the events set forth in Section 4043(b)
or (c) of ERISA, other than those events described in Section 4043(b) as to
which notice is waived by applicable PBGC regulation or those events described
in Section 4043(c) as to which the thirty-day notice period is waived under
Section .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss. 2615.
"Required Lenders" means, at the time of any determination, Lenders the
Total Facility Percentages of which aggregate at least 51%.
"Requirement of Law" means, as to any Person, (a) the Charter Documents
of such Person and (b) any law, statute, code, ordinance, order, rule,
regulation, judgment, decree, injunction, writ, edict, award, authorization or
other requirement of any Governmental Authority or any obligation included in
any Authorization or resulting from binding arbitration, including, without
limitation, any requirement under common law, 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" means, with respect to any Loan Party, (a) if
such Loan Party is a partnership, such senior personnel of the general partner
or the managing general partner (if there is more than one general partner) of
such partnership, including, without limitation, the Chief Executive Officer,
the President, any Vice President and Colin H. Higgin or, with respect to
financial matters, the Treasurer, 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 of which it is the general partner 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, without limitation, the Chief Executive
Officer, the President, any Vice President and Colin H. Higgin or, with respect
to financial matters, the Treasurer, 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" means, as to any Person, any Investment by
such Person in any of its Affiliates or any Unrestricted Subsidiaries or any
payment on account of the purchase, redemption or other acquisition or
retirement of any Capital Securities of such Person or any of its Affiliates or
any Unrestricted Subsidiaries.
"Restricted Payments" has the meaning specified in Section 7.6.
Restricted Subsidiary means any Subsidiary of any Borrower that is not
an Unrestricted Subsidiary and any Unrestricted Subsidiary of any Borrower which
a Responsible Officer hereafter designates as a Restricted Subsidiary and as to
which the applicable Borrower complies with the provisions of Section 6.9
relating to new Restricted Subsidiaries .
"Revolving Credit Commitment" as to any Revolving Credit Lender, its
obligation, if any, to make Revolving Credit Loans to, or issue or participate
in Letters of Credit issued on behalf of, any Borrower in an aggregate amount
not to exceed at any one time outstanding the amount set forth opposite such
Revolving Credit Lender's name in Annex A under the heading "Revolving Credit
Commitment" or, in the case of any Revolving Credit Lender that is an Eligible
Assignee, the amount of the assigning Revolving Credit Lender's Revolving Credit
Commitment assigned to such Eligible Assignee pursuant to Section 10.6(c) and
set forth in the applicable Assignment and Acceptance (in each case, as the same
may be increased, reduced or otherwise adjusted from time to time as provided
herein).
"Revolving Credit Commitment Period" means the period from and
including the date hereof to, but not including, the Revolving Credit
Termination Date or such earlier date on which the Revolving Credit Commitments
of all Revolving Credit Lenders shall terminate as provided herein.
"Revolving Credit Facility" means the revolving credit facility
provided for in Section 2.1.
"Revolving Credit Facility Percentage": at any time, as to any
Revolving Credit Lender, the percentage of the aggregate outstanding Revolving
Credit Loans and L/C Obligations then constituted by such Revolving Credit
Lender's outstanding Revolving Credit Loans and participations in L/C
Obligations (or obligations held by the Issuing Lender in respect of L/C
Obligations, in the case of the Issuing Lender); provided, if no Revolving
Credit Loans or L/C Obligations are outstanding, the Revolving Credit Facility
Percentage for any Revolving Credit Lender shall be the percentage of the
aggregate Revolving Credit Commitments then constituted by such Lender's
Revolving Credit Commitment.
"Revolving Credit Lender" means each Lender which has a Revolving
Credit Commitment or which has
Revolving Credit Loans outstanding.
"Revolving Credit Loans" has the meaning specified in Section 2.1.
"Revolving Credit Note" means a promissory note of the Borrowers
payable to the order of each Lender in the form of Exhibit J.
"Revolving Credit Termination Date" the earlier of (i) December 31,
2003 and (ii) the date on which the Revolving Credit Loans become due and
payable in full, pursuant to acceleration or otherwise.
"Rigas Family" means John J. Rigas, Timothy J. Rigas, James P. Rigas,
Ellen K. Rigas, Michael J. Rigas and their respective spouses and children and
trusts, partnerships, corporations and 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.
"Robinson" means Robinson/Plum Cablevision, L.P., a Pennsylvania
limited partnership.
"Security Documents" means each Partnership Assignment Agreement, each
Stock Pledge Agreement and all other security documents hereafter delivered to
the Administrative Agent granting a Lien on any asset or assets of any Person to
secure the Obligations hereunder and under any of the other Loan Documents or to
secure any guaranty of the Obligations, including, without limitation, any such
security document delivered pursuant to Section 6.9 or 6.10.
"Senior Funded Debt" means, at any date of determination, (a) the sum
of (i) the Loans and the Letters of Credit outstanding on such date and (ii)
Indebtedness of the Borrowers and the Restricted Subsidiaries of the type
described in Section 7.2(d) outstanding on such date, less (b) the Cash Balance
at such date.
"Senior Funded Debt Ratio" means, at the time of any determination,
without duplication of amounts, the ratio of (a) the aggregate amount
outstanding at such time of all obligations of the Borrowers and the Restricted
Subsidiaries in respect of the principal amount of all Senior Funded Debt to (b)
Annualized Operating Cash Flow for the most recently ended fiscal quarter for
which Financial Statements have been provided.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"SMATV System" means any System that is a satellite master antenna
television system as such term is commonly understood in the cable television
industry.
"Solvent" means 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 or the issuance of any Letters
of Credit to be issued on the Closing Date and to the application of the
proceeds of such Loans and such Letters of Credit and (B) on any date after the
Closing Date, the making of any Loan to be made or the issuance of any Letters
of Credit to be issued on such date, and to the application of the proceeds of
such Loan and such Letters of Credit. 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.
"S&P" means Standard & Poor's Rating Services Group.
"Stock Pledge Agreement" means a Stock Pledge Agreement in the form of
Exhibit K, as amended, supplemented and otherwise modified from time to time.
"Subordinated Indebtedness" means unsecured Indebtedness of (a) any
Borrower owing to any other Borrower, (b) any Restricted Subsidiary owing to any
other Restricted Subsidiary or to any Borrower owning, directly or indirectly,
Capital Securities of such Restricted Subsidiary, or (c) any Borrower or any
Restricted Subsidiary owing to any Affiliate other than any other Borrower or
any other Restricted Subsidiary, all of which Indebtedness described in (a), (b)
and (c) above is subordinated to the Obligations pursuant to, in the case of
Permitted Intercompany Indebtedness, an Intercompany Indebtedness Subordination
Agreement and in the case of Affiliate Subordinated Indebtedness, an Affiliate
Subordination Agreement, including the following terms and conditions: (i)
payments on the Affiliate Subordinated Indebtedness will be subject to the
provisions of Section 7.6; (ii) all Subordinated Indebtedness will be unsecured;
(iii) interest on Affiliate Subordinated Indebtedness shall not exceed a rate of
10% per annum; (iv) payments on all Subordinated Indebtedness will not be made
if any Default or Event of Default has occurred and is continuing or would
result from such payment; (v) upon payment or distribution of assets of the
Borrowers upon dissolution, liquidation or reorganization in bankruptcy, all of
the Obligations shall be paid in full in cash directly to the Lenders before any
payment of principal, interest or any other amount in respect of Subordinated
Indebtedness; (vi) in the event of bankruptcy, insolvency, receivership or
assignment for the benefit of creditors of any Borrower, the Lenders or the
Administrative Agent shall (A) have the right to file a claim on behalf of the
holders of Subordinated Indebtedness and collect and receive all such payments,
(B) be irrevocably appointed attorney for the holders of the Subordinated
Indebtedness and be granted a security interest in any bankruptcy dividend;
(vii) if, prior to payment in full of the Obligations in cash, the holder of
Subordinated Indebtedness receives any payment or security, such payment or
security shall be delivered to the Administrative Agent; and (viii) no
Subordinated Indebtedness will include cross defaults or cross accelerations
with any other Indebtedness.
"Subordination Agreements" means each Affiliate Subordination Agreement
, each Intercompany Indebtedness Subordination Agreement and each Management
Subordination Agreement.
"Subsidiary" means, as to any Person, (a) 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 (b) 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 any Borrower.
"Subsidiary Assignment of Partnership Interests" means a Subsidiary
Assignment of Partnership Interests in the form of Exhibit L, as amended,
supplemented and otherwise modified from time to time.
"System" means 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.
"System Cash Flow Percentage" has the meaning specified in
Section 7.5(a).
"Term Loan Commitment" as to any Term Loan Lender, the
obligation of such Term Loan Lender, if any, to make Term Loans to the Borrowers
hereunder on the Initial Funding Date in an aggregate principal amount not to
exceed the amount set forth under the heading "Term Loan Commitment" opposite
such Term Loan Lender s name on Annex A, or in the case of any Term Loan Lender
that is an Eligible Assignee, the amount of the assigning Term Loan Lender's
Term Loan assigned to such Eligible Assignee pursuant to Section 10.6(c) and set
forth in the applicable Assignment and Acceptance (in each case, as the same may
be increased, reduced or otherwise adjusted from time to time as provided
herein). The Term Loan Commitment of each Term Loan Lender will automatically be
permanently reduced by the amount of any Term Loan made by such Term Loan
Lender.
"Term Loan Facility" the term credit facility provided for in
Section 2.2.
"Term Loan Facility Percentage": means (i) on or prior to the Initial
Funding Date, as to any Term Loan Lender, the percentage of the aggregate Term
Loan Commitments then constituted by such Lender s Term Loan Commitment, and
(ii) thereafter, as to any Term Loan Lender, the percentage of the aggregate
outstanding Term Loans then constituted by such Lender's outstanding Term Loans.
"Term Loan Lender" means each Lender which has a Term Loan Commitment
or which has Term Loans outstanding.
"Term Loans" has the meaning specified in Section 2.2.
"Term Note" means a promissory note of the Borrowers payable to the
order of each Lender in the form of Exhibit M.
"Termination Date" means the earlier of (i) December 31, 2004 and (ii)
any date on which the Loans become due and payable in full, whether by
acceleration or otherwise.
Three Rivers means Three Rivers Cable Associates, L.P., a Pennsylvania
limited partnership.
Three Rivers Partners means Mt. Lebanon Cablevision, Inc., Walter L.
Bent and Bent & Associates, Inc.
"Toronto Dominion" means Toronto Dominion (Texas), Inc.
"Total Commitment" means the sum of the Revolving Credit Commitments
and the Term Loan Commitments (in each case, as the same may be increased,
reduced or otherwise adjusted from time to time as provided herein) not to
exceed $690,000,000, as such amount is or may be reduced from time to time
pursuant to this Agreement.
"Total Facility Percentages" means, as to any Lender at any time, the
quotient (expressed as a percentage) of (a) the sum of (i) such Lender s
Revolving Credit Commitment and (ii) such Lender's outstanding Term Loans, and
(b) the sum of (i) the aggregate Revolving Credit Commitments and (ii) the
aggregate outstanding Term Loans.
"Tranche" means the collective reference to Eurodollar Loans made by
the Revolving Credit Lenders or the Term Loan Lenders, as the case may be, the
then current Interest Periods of which begin on the same date and end on the
same later date, whether or not such Eurodollar Loans shall originally have been
made on the same day.
"Transferee" has the meaning specified in Section 10.6(f).
"Trigger Date" means the earlier of (a) the date the Loans and all
other Obligations owing under this Agreement shall have become or been declared
to be due and payable and (b) the date on which the Required Lenders shall have
notified the Administrative Agent after the occurrence of an Event of Default
that amounts are to be allocated pursuant to Section 8.2.
"Type" refers to a Base Rate Loan or a Eurodollar Loan.
Uniform Commercial Code means the Uniform Commercial Code from time to
time in effect in the State of New York.
Uniform Customs means the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
as the same may be amended from time to time.
Unrestricted Subsidiary means any Subsidiary of any Borrower formed or
acquired after the Closing Date and designated by a resolution of a Responsible
Officer as an Unrestricted Subsidiary; provided that (a) if such Subsidiary is a
partnership, such Subsidiary may be an Unrestricted Subsidiary only if no
Borrower or any Restricted Subsidiary is a general partner of such Subsidiary
and (b) such Subsidiary shall only be an Unrestricted Subsidiary for so long as
such Subsidiary engages solely in the business of acquiring, owning or disposing
of publicly traded marketable securities and FCC Licenses (other than FCC
Licenses used in connection with the ownership or operation of the Systems of
any Borrower and its Subsidiaries).
Wholly Owned Restricted Subsidiary means any Restricted Subsidiary
that is also a Wholly Owned Subsidiary.
"Wholly Owned Subsidiary" means, as to any Person, any other Person
100% of the Capital Securities of which (other than directors' qualifying shares
required by law) is owned by such Person directly or indirectly through one or
more other Wholly Owned Subsidiaries.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the same
defined meanings when used in any Note or any other Loan Document.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to the Borrowers
and the Subsidiaries not defined in Section 1.1 and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP from time to time; provided, however, that if
the Borrower notifies the Administrative Agent that the Borrower wishes to amend
any covenant in Section 6.1 to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the
Borrowers that the Required Lenders wish to amend Section 6.1 for such purpose),
then compliance with such covenant shall be determined on the basis of GAAP in
effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders. Without limiting any
other provision of this Agreement, to the extent that any entity which is a
Restricted Subsidiary under this Agreement would not be included in the
financial statements of any Borrower as prepared on a combined and consolidated
basis in accordance with GAAP, such financial statements shall be prepared so as
to include such Restricted Subsidiary on a combined and consolidated basis in
accordance with GAAP. Without limiting any other provision of this Agreement, to
the extent that any such Restricted Subsidiary is included in the Financial
Statements on a combined and consolidated basis, all financial terms defined
herein shall also include the accounts of such Restricted Subsidiary on a
combined and consolidated basis in accordance with GAAP.
(c) When used in this Agreement, the words "hereof," "herein"
and "hereunder" and words of similar import shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and the words
Section, Annex, Schedule and Exhibit refer to Sections and Sections of, and
Annexes, Schedules and Exhibits 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.
(e) Except as otherwise specified herein, all references
herein to any Requirement of Law defined or referred to herein shall be deemed
references to such Requirement of Law or any successor Requirement of Law, as
the same may have been or may be amended and supplemented from time to time, and
any rules or regulations promulgated thereunder from time to time as the same
may have or may be amended and supplemented from time to time.
(f) References in this Agreement or any other Loan Document to
knowledge by the Borrowers or any Subsidiary of events or circumstances shall be
deemed to refer to events or circumstances of which a Responsible Officer has
actual knowledge or reasonably should have knowledge.
(g) References in this Agreement or any other Loan Document to
financial statements shall be deemed to include all related schedules and notes
thereto.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Facility. (a) The aggregate amount of the
Revolving Credit Commitments on the date of this Agreement equals $540,000,000.
Subject to the terms and conditions hereof, each Revolving Credit Lender
severally agrees to make revolving credit loans ("Revolving Credit Loans") to
the Borrowers from time to time during the Revolving Credit Commitment Period;
provided, that in no event shall the sum of the aggregate outstanding (i)
Revolving Credit Loans and (ii) participations in L/C Obligations of any
Revolving Credit Lender at any time exceed such Revolving Credit Lender's
Revolving Credit Commitment. During the Revolving Credit Commitment Period,
within the Available Revolving Credit Commitment and subject, without
limitation, to Sections 2.7 and 2.18, the Borrowers may borrow, prepay the
Revolving Credit Loans in whole or in part, and reborrow under this Section 2.1,
all in accordance with the terms and conditions of this Agreement. The Revolving
Credit Loans of each Revolving Credit Lender shall be evidenced by a Revolving
Credit Note payable to such Revolving Credit Lender or its nominee's order on or
before the Revolving Credit Termination Date.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) Base Rate Loans or (iii) a combination thereof, as
determined by the Borrowers and notified to the Administrative Agent in
accordance with Section 2.3 or Section 2.9. Each Borrowing shall consist of
Revolving Credit Loans of the same Type made on the same day by the Revolving
Credit Lenders ratably according to their respective Revolving Credit Facility
Percentages.
(c) The Borrowers jointly and severally hereby unconditionally
promise (i) to pay to the Administrative Agent for the account of the Applicable
Lending Office of each Revolving Credit Lender, the principal amount of the
Revolving Credit Loans made by such Revolving Credit Lender, together with all
accrued and unpaid interest thereon, on or before the Revolving Credit
Termination Date and (ii) to prepay to the Administrative Agent for the account
of the Applicable Lending Office of each Revolving Credit Lender, the principal
amount of each prepayment required by Section 2.7 on the date or dates the same
become due and payable pursuant to and in accordance with this Agreement.
Subject to Section 2.7(a), payments and prepayments of Revolving Credit Loans
shall be applied by the Administrative Agent first, to pay Base Rate Loans and
second, to pay Eurodollar Loans in the order that the Interest Periods for such
Loans end. All amounts shall be paid on the date due as provided in this
Agreement, whether or not such payment would require a prepayment of any
Eurodollar Loans prior to the last day of the applicable Interest Periods
therefor or would result in losses, costs or expenses compensable under Section
2.16.
2.2 Term Loan Facility. (a) The aggregate amount of the Term
Loan Commitments on the date of this Agreement equals $150,000,000. Subject to
the terms and conditions hereof, each Term Loan Lender severally agrees to make
term loans ("Term Loans") to the Borrowers on the Initial Funding Date in an
amount not to exceed such Term Loan Lender's Term Loan Commitment. The Term
Loans of each Term Loan Lender shall be evidenced by a Term Note payable to such
Term Loan Lender or its nominee's order on or before the Termination Date.
(b) The Term Loans may from time to time be (i) Eurodollar
Loans, (ii) Base Rate Loans or (iii) a combination thereof, as determined by the
Borrowers and notified to the Administrative Agent in accordance with Section
2.3 or Section 2.9.
(c) Unless sooner paid pursuant to the terms hereof, the
aggregate Term Loans of all the Term Loan Lenders shall be due and payable in
installments on the last day of each fiscal quarter of the Borrowers, commencing
on June 30, 1998, and ending on December 31, 2004, based on the following
quarterly percentage reductions:
Fiscal Quarter End
Quarterly Percentage Reduction
6/30/98 through and including 12/31/02 0.2500%
3/31/03 through and including 12/31/03 2.3125%
3/31/04 through and including 12/31/04 21.5000%
The aggregate principal amount of each such installment payable on the last day
of any fiscal quarter of the Borrowers shall be equal to the applicable
quarterly percentage set forth above of the aggregate principal amount of the
Term Loans outstanding on the Initial Funding Date, after giving effect to all
borrowings under this Agreement on such date; provided that, in any event, the
installment due on December 31, 2004 shall be in an amount equal to the
aggregate principal amount of Term Loans outstanding on such date.
(d) The Borrowers jointly and severally hereby unconditionally
promise to pay, or prepay as the case may be, to the Administrative Agent for
the account at the Applicable Lending Office of each Term Loan Lender, the
principal amounts specified in Section 2.2(c) (or, if less, the aggregate amount
of the Term Loans then outstanding), on or before the dates specified in Section
2.2(c) or, if earlier on, the dates required in Section 2.7 or on the
Termination Date, together with all accrued and unpaid interest thereon. Subject
to Section 2.7(a), payments and prepayments of the Term Loans shall be applied
by the Administrative Agent first, to pay Base Rate Loans and second, to pay
Eurodollar Loans in the order that the Interest Periods for such Loans end. All
amounts shall be paid on the date specified therefor, whether or not such
payment would require a prepayment of any Eurodollar Loans prior to the last day
of the applicable Interest Periods therefor or would result in losses, costs or
expenses compensable under Section 2.16.
(e) In the event the Term Loans shall be prepaid pursuant to
Section 2.7, the relevant quarterly installment amounts required by Section
2.2(c), after the date of such prepayment, shall be reduced on a pro rata basis
by an aggregate amount equal to the amount of such prepayment.
2.3 Procedure for Borrowings. (a) Subject to the terms and
conditions hereof, the Borrowers may borrow under the Revolving Credit Facility
during the Revolving Credit Commitment Period on any Business Day, provided,
that the Borrowers shall give the Administrative Agent an irrevocable Notice of
Borrowing (which notice must be received by the Administrative Agent prior to
11:00 A.M., Houston, Texas time, together with a pro forma Compliance
Certificate, giving effect to the requested Borrowing, (a) three Business Days
prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit 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, Base Rate Loans or a combination thereof and (iv)
if the Borrowing is to be entirely or partly of Eurodollar Loans, the respective
amounts of each Tranche and the respective lengths of the initial Interest
Periods therefor. Each Borrowing under the Revolving Credit Facility shall be in
an amount equal to (x) in the case of Base Rate Loans, $3,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if the then Available Revolving
Credit Commitments are less than $1,000,000, such lesser amount) and (y) in the
case of Eurodollar Loans, each Tranche shall be $5,000,000 or a whole multiple
of $1,000,000 in excess thereof. Upon receipt of any such Notice of Borrowing
and Compliance Certificate from the applicable Borrower, the Administrative
Agent shall promptly notify each Revolving Credit Lender thereof. Each Notice of
Borrowing shall be irrevocable and binding on the Borrowers. The Administrative
Agent shall promptly deliver a copy of each Notice of Borrowing to the Revolving
Credit Lenders.
(b) Subject to the terms and conditions hereof, the Borrowers
may borrow under the Term Loan Facility on the Initial Funding Date, provided,
that the Borrowers shall give the Administrative Agent an irrevocable Notice of
Borrowing (which notice must be received by the Administrative Agent prior to
11:00 a.m., Houston, Texas time, together with a pro forma Compliance
Certificate giving effect to the requested Borrowing (i) three Business Days
prior to the relevant Borrowing Date, if all or any part of the Term Loans are
to be initially Eurodollar Loans, or (ii) one Business Day prior to the relevant
Borrowing Date, otherwise) requesting that the Term Loan Lenders make Term Loans
on such Borrowing Date and specifying (i) the amount to be borrowed, (ii)
whether such Term Loans are to be initially Eurodollar Loans, Base Rate Loans or
a combination thereof and (iii) in the case of Term Loans that are to be
entirely or partly Eurodollar Loans, the respective amount of each Tranche
(which shall be $5,000,000 or a whole multiple of $1,000,000 in excess thereof)
and the respective lengths of the initial Interest Periods therefor.
(c) Each Lender shall, before 11:00 A.M., Houston, Texas time
on the Borrowing Date, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's Office, in
immediately available funds, such Lender's percentage of such Borrowing then
constituted by such Lender's Revolving Credit Facility Percentage and/or Term
Loan Facility Percentage, as the case may be, of such Borrowing. After the
Administrative Agent's receipt of such funds and, upon fulfillment of the
applicable conditions set forth in Section 5, the Administrative Agent shall
make such funds available to the applicable Borrower's account at the
Administrative Agent's Office or as otherwise designated in the Notice of
Borrowing.
(d) Unless the Administrative Agent has received notice from a
Lender prior to 10:00 A.M., Houston, Texas time on the date of any Borrowing
that such Lender will not make available to the Administrative Agent such
Lender's Revolving Credit Facility Percentage and/or Term Loan Facility
Percentage, as the case may be, of such Borrowing, the Administrative Agent may
assume such Lender has made such portion available to the Administrative Agent
on the date of such Borrowing in accordance with Sections 2.3(a) and 2.3(b), as
applicable, and the Administrative Agent in its sole discretion may, in reliance
on such assumption, make available to the Borrowers on such date a corresponding
amount on behalf of such Lender. If and to the extent that such Lender shall not
have so made its Revolving Credit Facility Percentage and/or Term Loan Facility
Percentage, as the case may be, available to the Administrative Agent, the
Borrowers jointly and severally agree, and such Lender agrees, to repay to the
Administrative Agent forthwith on demand such corresponding amount, together
with interest thereon for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to the Administrative
Agent, at a per annum rate equal to (i) in the case of the Borrowers, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Rate until, and including,
the third Business Day after demand is made and thereafter at the Base Rate. If
such Lender shall repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Loan as part of such
Borrowing for purposes of this Agreement. If the Borrowers shall repay to the
Administrative Agent such corresponding amount, no Borrower shall have any
liability with respect to losses, costs or expenses otherwise compensable under
Section 2.16 in connection therewith.
(e) The agreements of the Lenders to make Loans to the
Borrowers pursuant to this Agreement are several, and not joint nor joint and
several, and the failure of any Lender to make the Loan to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on the date of any Borrowing.
(f) 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.
(g) The Administrative Agent shall maintain the Register
pursuant to Section 10.6(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, if any, 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.
(h) The entries made in the Register shall, to the extent
permitted by applicable Requirements of Law, be prima facie evidence of the
existence and amounts of the obligations of the Borrowers therein recorded;
provided, however, that the failure of the Administrative Agent to maintain the
Register, or any error therein, shall not in any manner affect the obligation of
the Borrowers to repay (with applicable interest) the Loans made to the
Borrowers by any Lender in accordance with the terms of this Agreement and the
Notes.
2.4 Fees. (a) The Borrowers jointly and severally agree to pay
to the Administrative Agent for the account of each Lender's Domestic Lending
Office a commitment fee during the Revolving Credit Commitment Period, computed
at the rate of (a) 3/8ths of 1% per annum when the Senior Funded Debt Ratio is
equal to or greater than 5.00 to 1.00 and (b) 1/4th of 1% per annum when the
Senior Funded Debt Ratio is less than 5.00 to 1.00, in each case on the average
daily amount of the Available Revolving Credit Commitment of such Lender during
the period for which payment is made, calculated on the basis of a 360-day year
for the actual number of days elapsed, payable quarterly in arrears on each
Interest Payment Date and on the Revolving Credit Termination Date.
(b) The Borrowers jointly and severally agree to pay (without
duplication of any fee payable under Section 2.4(a)) to the Administrative Agent
and the Managing Agents, for their respective accounts, the fees provided for in
the Fee Letters on the dates and in the amounts provided for therein.
(c) The Borrowers jointly and severally agree to pay to the
Administrative Agent, for the account of each Revolving Credit Lender, a letter
of credit fee with respect to each Letter of Credit, computed for the period
from and including the date of issuance of such Letter of Credit to the date
such Letter of Credit is no longer outstanding, computed at a percentage rate
per annum equal to the Applicable Margin from time to time applicable to
Revolving Credit Loans bearing interest at the Adjusted Eurodollar Rate,
calculated on the basis of a 360-day year and the actual number of days elapsed,
of the aggregate average daily amount available to be drawn under such Letter of
Credit for the period as to which payment of such fee is made, payable on each
L/C Fee Payment Date to occur while such Letter of Credit remains outstanding
and on the date such Letter of Credit expires, is canceled or is drawn upon.
Such fee shall be nonrefundable.
(d) The Borrowers jointly and severally agree to pay to the
Issuing Lender, for its own account, a fronting fee, computed at the rate of
1/8th of 1% per annum, calculated on the basis of a 360-day year and the actual
number of days elapsed, of the aggregate average daily face amount of all
Letters of Credit outstanding from time to time, payable in arrears on each L/C
Fee Payment Date. Such fronting fee shall be nonrefundable.
2.5 Reduction of Revolving Credit Commitments.
(a) The Revolving Credit Commitment shall reduce under the
circumstances, in the amounts and on the dates specified in Section 2.7. Any
reduction of the Revolving Credit Commitments pursuant to Section 2.7(e) shall
reduce on a pro rata basis (as described in Section 2.7(f)), the relevant
quarterly reduction amounts of the Revolving Credit Commitments scheduled to
occur pursuant to Section 2.7(c) after the date of such reduction.
(b) Any reduction of the Revolving Credit Commitment pursuant
to Section 2.7(b) shall reduce on a pro rata basis the relevant quarterly
reduction amounts of the Revolving Credit Commitments scheduled to occur
pursuant to Section 2.7(c) after the date of such reduction.
2.6 Maximum Number of Tranches. All Borrowings, Conversions
and payments 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 Eurodollar 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 10 Tranches
outstanding at any time.
2.7 Optional and Mandatory Prepayments and Commitment
Reductions. (a) The Borrowers jointly and severally agree to prepay the Loans as
and when required by Section 2.7(d), 2.7(e) or 2.7(f), and the Borrowers may,
subject to Section 2.16, at any time and from time to time prepay the Revolving
Credit Loans and the Term Loans, in whole or in part, without premium or penalty
(it being understood that amounts payable pursuant to Section 2.16 do not
constitute premium or penalty). Each such prepayment shall be made upon at least
five Business Days' irrevocable notice from a Responsible Officer to the
Administrative Agent, specifying the date and amount of prepayment and whether
the prepayment is (i) of Revolving Credit Loans or Term Loans or a combination
thereof, and (ii) of Eurodollar Loans, Base Rate Loans or a combination thereof,
and, in each case if a combination thereof, the principal amount allocable to
each; provided, however, if such prepayment is anticipated to be made from Net
Proceeds to be received at the time of the consummation of any Asset Sale, the
Borrowers may withdraw any such notice of prepayment on or before the proposed
date of such prepayment if for any reason the consummation of such Asset Sale,
has been terminated or postponed. Upon the receipt of any such notice the
Administrative Agent shall promptly notify each affected Lender thereof. If any
such notice is given and not withdrawn as provided above, the amount specified
in such notice shall be due and payable on the date specified therein, together
with (if a Eurodollar Loan is prepaid other than at the end of the Interest
Period applicable thereto) any amounts payable pursuant to Section 2.16. Partial
prepayments of Loans outstanding under any Facility shall be in an aggregate
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof for each such Facility or such amount as may then be outstanding under
such Facility.
(b) The Borrowers shall have the right, upon not less than
five Business Days' notice by a Responsible Officer to the Administrative Agent
(which will promptly notify the Lenders thereof), to terminate the Revolving
Credit Commitments or, from time to time, to permanently reduce the amount of
the Revolving Credit Commitments; provided, that no such termination or
reduction of the Revolving Credit Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Credit Loans made
on the effective date thereof, the sum of the aggregate outstanding Revolving
Credit Loans and L/C Obligations would exceed the aggregate Revolving Credit
Commitments then in effect. Any such reduction shall be in a minimum amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce
permanently the Revolving Credit Commitments then in effect.
(c) The Revolving Credit Commitments shall automatically be
permanently reduced on the last day of each fiscal quarter of the Borrowers,
commencing on June 30, 1998, and ending on December 31, 2003, based on the
following quarterly percentage reductions:
Fiscal Quarter End
Quarterly Percentage Reduction
June 30, 1998 through and including March 31, 2000 2.50%
June 30, 2000 through and including June 30, 2001 4.00%
September 30, 2001 through and including June 30, 2002 5.50%
September 30, 2002 through and including June 30, 2003 6.00%
September 30, 2003 through and including December 31, 2003 7.00%
The amount of each reduction of the Revolving Credit Commitments as of the end
of any fiscal quarter of the Borrowers shall be equal to the applicable
quarterly percentage set forth above of the Revolving Credit Commitments in
effect on the date of this Agreement; provided that, in any event, the Revolving
Credit Commitments shall be reduced to zero on December 31, 2003.
(d) If at any time the sum of the aggregate outstanding
Revolving Credit Loans and L/C Obligations of all Revolving Credit Lenders
exceeds the aggregate Revolving Credit Commitments then in effect, the Borrowers
jointly and severally agree, without notice or demand, to immediately repay the
Revolving Credit Loans in an aggregate principal amount equal to such excess,
together with accrued and unpaid interest on the principal amount so paid or
prepaid to the date of such payment or prepayment and any amounts payable under
Section 2.16. To the extent that, after giving effect to any repayment of the
Revolving Credit Loans required by the preceding sentence, the aggregate
outstanding L/C Obligations of all Revolving Credit Lenders exceeds the
aggregate Revolving Credit Commitments then in effect, the Borrowers jointly and
severally agree, without notice or demand, to immediately cash collateralize the
then outstanding L/C Obligations in an amount equal to such excess upon terms
reasonably satisfactory to the Administrative Agent.
(e) The Borrowers jointly and severally agree that, if any
Borrower or any Restricted Subsidiary shall receive Net Proceeds from any Asset
Sale which are not reinvested on or before the Reinvestment Deadline in
accordance with Section 2.18 hereof, an amount equal to 100% of such Net
Proceeds not so reinvested shall be applied no later than the Reinvestment
Deadline toward the prepayment of the Term Loans and the permanent reduction of
the Revolving Credit Commitments as set forth in Section 2.7(f).
(f) Amounts to be applied in connection with prepayments on
the Term Loans and permanent reduction of the Revolving Credit Commitments
required by Section 2.7(e) shall be applied, pro rata among the Term Loan
Facility and the Revolving Credit Facility, to the prepayment of the Term Loans
and, to reduce permanently the Revolving Credit Commitments. In the case of
reductions of the Revolving Credit Commitments the Borrowers shall, if
applicable, comply with the requirements of Section 2.7(d). Prepayments of Term
Loans pursuant to this Section 2.7(f) shall be applied pro rata (based on the
principal amount of each installment) to the respective installments of
principal thereof scheduled to occur pursuant to Section 2.2(c) after the date
of such prepayment. Reductions of the Revolving Credit Commitments pursuant to
this Section 2.7(f) shall be applied pro rata (based on the amount of each
scheduled quarterly reduction) to the quarterly reduction amounts of the
Revolving Credit Commitments scheduled to occur pursuant to Section 2.7(c) after
the date of such reduction. The application of any prepayment to the Loans
pursuant to this Section 2.7 shall be made first to Base Rate Loans and second
to Eurodollar Loans. Each prepayment of the Loans under this Section 2.7 shall
be accompanied by accrued and unpaid interest to the date of such prepayment on
the amount prepaid and any amounts payable under Section 2.16. Amounts prepaid
on account of the Term Loans may not be reborrowed. Notwithstanding the
foregoing, any Term Loan Lender having a Term Loan shall have the option, as
long as there are any Revolving Credit Loans outstanding or until the Revolving
Credit Termination Date, of declining receipt of its share of any such Term Loan
prepayment, and, in such event, such share shall be applied as a permanent
reduction of the Revolving Credit Commitments pro rata (based on the amounts of
the respective Revolving Credit Commitments) and to prepay the Revolving Credit
Loans to the extent they would otherwise exceed the Revolving Credit Facility as
so reduced.
2.8 Computation of Interest. Each Loan shall bear interest at
the rates set forth below, and the Borrowers jointly and severally agree to pay
interest on the unpaid principal amount of each Loan made by each Lender from
the date of such Loan until such principal amount shall be paid in full, at the
times and at the rates per annum set forth below:
(a) during such periods as such Loan is a Base Rate Loan, at a
rate per annum equal at all times to the lesser of (i) the Highest Lawful Rate
and (ii) the Base Rate in effect from time to time, calculated on the basis of a
365 or 366-day year, as the case may be, for the actual number of days elapsed,
payable in arrears on (A) each Interest Payment Date, (B) the date such Loan
shall be Converted and (C) on the Revolving Credit Termination Date, with
respect to Revolving Credit Loans, and on the Termination Date with respect to
Term Loans.
(b) during such periods as such Loan is a Eurodollar Loan, a
rate per annum equal at all times during each Interest Period for such Loan to
the lesser of (i) the Highest Lawful Rate and (ii) the Adjusted Eurodollar Rate
for such Interest Period, calculated on the basis of a 360-day year, for the
actual number of days elapsed, payable in arrears on (A) the last day of each
such Interest Period and, in the case of a Eurodollar Loan having an Interest
Period longer than three months, on each three-month anniversary of the first
day of such Interest Period and (B) on the Revolving Credit Termination Date,
with respect to Revolving Credit Loans, and on the Termination Date with respect
to Term Loans.
(c) After the occurrence of any Event of Default, at the
option of the Required Lenders, to the extent permitted by applicable law, the
outstanding Obligations shall bear interest at a rate per annum equal to the
lesser of (i) the Highest Lawful Rate and (ii) the Default Rate. Such interest
shall be payable on demand and accrue until the earliest of (A) the waiver of
such Event of Default by the requisite number of Lenders or the cure of such
Event of Default to the satisfaction of the requisite number of Lenders, (B)
agreement by the requisite number of Lenders to rescind the charging of interest
at the Default Rate and (C) payment in full of the Obligations and the
termination of the Total Commitment.
2.9 Interest Rate Conversion. Subject to the terms and
conditions hereof, the Borrowers may on any Business Day, on telephonic notice
to be followed by a Notice of Conversion, given by a Responsible Officer of the
Borrowers to the Administrative Agent not later than 11:00 A.M. (Houston, Texas
time) (a) on the third Business Day prior to the date of the proposed Conversion
of Loans into Eurodollar Loans or (b) on one Business Day prior to the date of
the proposed Conversion of Eurodollar Loans into Base Rate Loans, Convert Loans
of one Type into Loans of another Type or Convert Eurodollar Loans into
Eurodollar Loans having a different Interest Period; provided, however, that any
Conversion of any Eurodollar Loans into Base Rate Loans and of any Eurodollar
Loans into Eurodollar Loans having a different Interest Period shall be made
only on the last day of an Interest Period for such Eurodollar Loans; and
provided further, that no Conversion of any Base Rate Loans into Eurodollar
Loans may be made if any Default or Event of Default has occurred and is
continuing. Each such Notice of Conversion shall specify therein (i) the
requested date of such Conversion, (ii) whether the Loans to be Converted are
Revolving Credit Loans or Term Loans, (iii) the amount of such Loans to be
Converted and (iv) if such Conversion is into Loans constituting Eurodollar
Loans or Eurodollar Loans having a different Interest Period, the duration of
the Interest Period for such Loans. Each Notice of Conversion shall be
irrevocable and binding on the Borrowers. The Administrative Agent shall
promptly deliver a copy of each Notice of Conversion to each Lender. Each
Conversion shall be in an aggregate amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof.
2.10 Determination of Interest Rate. (a) The rate of interest
for each Eurodollar Loan specified in a Notice of Borrowing or a Notice of
Conversion shall be determined by the Administrative Agent two Business Days
before the first day of the Interest Period applicable for such Loan. The
Administrative Agent shall give prompt notice to the Borrowers and the Lenders
of the interest rate determined by the Administrative Agent for purposes of
Section 2.8(b). Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurodollar Rate Reserve Percentage shall become
effective as of the opening of business on the date 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 such change in
interest rate. 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, absent manifest error.
(b) If a Responsible Officer shall fail to deliver to the
Administrative Agent a Notice of Conversion in accordance with Section 2.9 to
select the duration of any Interest Period for any outstanding Eurodollar Loan
prior to the last day of the Interest Period applicable to such Loan, such Loan
will, automatically on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Loan.
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 Adjusted Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Adjusted 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 notice thereof to the Borrowers and the
Lenders as soon as practicable thereafter. If such notice is given, then (i) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans, (ii) any Loans that were to have been
Converted on the first day of such Interest Period to Eurodollar Loans shall
continue as Base Rate Loans and (iii) any outstanding Eurodollar Loans shall be
Converted, on the respective last days of the then current Interest Periods with
respect to such Loans, to Base Rate Loans. Until such notice has been withdrawn
by the Administrative Agent, no further Eurodollar Loans shall be made nor shall
Borrowers have the right to Convert Loans into Eurodollar Loans.
2.12 Pro Rata Treatment and Payments. Each Borrowing by the
Borrowers hereunder shall be made, each payment by the Borrowers on account of
any fees payable to the Lenders under Section 2.4(a) hereunder and any reduction
of the Commitments shall be allocated by the Administrative Agent according to
the respective Revolving Credit Facility Percentages and Term Loan Facility
Percentages of the Lenders. Each payment (including each prepayment) by the
Borrowers on account of principal of and interest on (i) the Term Loans shall be
allocated by the Administrative Agent according to the respective outstanding
principal amounts of Term Loans then held by the Term Loan Lenders; and (ii) the
Revolving Credit Loans shall be allocated by the Administrative Agent according
to the respective outstanding principal amounts of such Revolving Credit Loans
then held by the Revolving Credit Lenders. All payments (including prepayments)
to be made by the Borrowers hereunder, whether on account of principal,
interest, fees or any other Obligation, shall be made without set-off,
counterclaim or other deduction whatsoever and shall be made prior to 11:00
A.M., Houston, Texas time, on the date due to the Administrative Agent, for the
account of the respective Applicable Lending Offices of the Lenders, at the
Administrative Agent's Office, in Dollars and in immediately available funds.
Payments received by the Administrative Agent after such time shall be deemed to
have been received on the next Business Day. 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, the maturity of 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.
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 any Eurodollar Loans as contemplated by this Agreement or to
give effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, (a) the commitment of such Lender hereunder to make or Convert
into Eurodollar Loans shall forthwith be cancelled and (b) such Lender's Loans
then outstanding as Eurodollar Loans, if any, shall be Converted automatically
to Base Rate Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as is required
by such Requirement of Law. If any such Conversion of Eurodollar Loans into Base
Rate Loans occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrowers jointly and severally agree
to pay to such Lender such amounts, if any, as may be required pursuant to
Section 2.16. Each Lender will promptly notify the Borrowers of any event
occurring after the date of this Agreement which makes it unlawful for such
Lender to make or maintain Eurodollar Loans.
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 Section 2.15 and changes in 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 Adjusted
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 or maintaining Eurodollar Loans or to reduce any
amount receivable hereunder in respect thereof, such Lender shall give prompt
notice thereof to the Borrowers and then, in any such case, the Borrowers
jointly and severally agree to promptly pay such Lender such additional amount
or amounts as will compensate such Lender, on an after tax basis, for such
increased cost or reduced amount receivable. If the Borrowers should receive any
such notice from any Lender, subject to Section 2.16, by telephonic notice,
followed by written confirmation by a Responsible Officer to the Administrative
Agent and such Lender, the Borrowers may Convert the affected Eurodollar Loans
of such Lender to Base Rate Loans notwithstanding such Conversion would occur on
a date other than the last day of the Interest Period for such Loans.
(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
Commitment, or any Loans made by it or its participation interest in any L/C
Obligations), 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, such Lender
shall give prompt notice thereof to the Borrowers and then, from time to time,
the Borrowers jointly and severally agree to pay promptly to such Lender such
additional amount or amounts as will compensate such Lender, on an after tax
basis, for such reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this Section 2.14, it shall notify the Borrowers promptly
(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 Section 2.14 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 Section 2.14 shall survive the termination of this
Agreement and the payment of the Obligations.
2.15 Taxes. (a) All payments made by the Borrowers under this
Agreement, any Notes and any other Loan Documents 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 Section 2.15(b). Whenever any Non-Excluded Taxes
are payable by the Borrowers, each Lender affected thereby shall give prompt
notice to the Borrowers of such circumstance and 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 fail to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrowers shall
jointly and severally 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 Section 2.15 shall survive the termination of this Agreement
and the payment of the Obligations.
(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, or (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 Section 10.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this Section 2.15; 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 shall jointly and severally
indemnify each Lender and hold each Lender harmless from any loss or expense
which such Lender may sustain or incur as a consequence of (a) default by any
Borrower in making a Borrowing of or a Conversion into Eurodollar Loans after a
Responsible Officer has given a notice requesting the same in accordance with
the provisions of this Agreement, (b) default by the Borrowers in making any
prepayment after a Responsible Officer has given a notice thereof in accordance
with the provisions of this Agreement, (c) any prepayment of any Eurodollar Loan
on a day which is not the last day of the Interest Period for such Loan or (d)
any Conversion of a Eurodollar Loan to a Base Rate Loan on any day other than
the last day of the Interest Period therefor. 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 or Converted, or so
Converted, for the period from the date of such prepayment or of such failure to
borrow or Convert or such Conversion to the last day of such Interest Period
(or, in the case of a failure to borrow or Convert, 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 in this Agreement over (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the London interbank market. This
covenant shall survive the termination of this Agreement and the payment of the
Obligations.
2.17 Change of Lending Office; Substitution of Lender. (a)
Each Lender agrees that if it makes any demand for payment under Section 2.14 or
2.15, or if any adoption or change of the type described in Section 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 the Borrowers to make payments
under Section 2.14 or 2.15, or would eliminate or reduce the effect of any
adoption or change described in Section 2.13.
(b) If (i) the obligation of any Lender to make or Convert
Loans into Eurodollar Loans has been suspended pursuant to Section 2.13, (ii)
any Lender has demanded compensation under Section 2.14 or (iii) any Lender has
notified the Borrower that it is not capable of receiving payments without
deduction or withholding pursuant to Section 2.15, the Borrowers may replace
such Lender by a Responsible Officer designating in a notice given to the
Administrative Agent an Eligible Assignee to replace such Lender, which Eligible
Assignee, if not already a Lender, shall be subject to the approval of the
Administrative Agent, which approval shall not be unreasonably withheld. If the
Borrowers so designate an Eligible Assignee, then the Administrative Agent shall
give notice thereof to the Lender to be replaced, and thereupon, such Lender
shall promptly consummate an assignment of such Lender's Commitment, Loans,
Notes and other rights and obligations hereunder relative to the Commitment of
such Lender to such Eligible Assignee in accordance with Section 10.6.
Notwithstanding anything to the contrary contained in Section 10.6(e) or in the
Assignment and Acceptance, in connection with any assignment pursuant to this
Section 2.17(b), the Borrowers jointly and severally agree to pay to the
Administrative Agent the $3,000 processing fee provided for in Section 10.6(e)
and in the Assignment and Acceptance and jointly and severally agree to pay to
the Administrative Agent for the account of the assigning Lender all interest
and fees accrued and unpaid to the Effective Date of, and as such term is
defined in, the Assignment and Acceptance and all other Obligations (other than
principal on the Loans) then owing to such assigning Lender.
2.18 Use of Net Proceeds. (a) So long as no Default or Event
of Default exists or would exist as a result thereof and subject to the terms
and conditions hereof, a selling Borrower, on its own behalf or on behalf of any
of its selling Restricted Subsidiaries, as the case may be, may use an amount
equal to the Net Proceeds received by such Borrower or such Restricted
Subsidiary from any voluntary Asset Sale to make Acquisitions permitted by
Section 7.7(b) and, in the case of any Net Proceeds arising out of a taking by
condemnation or eminent domain or a loss or damage pursuant to any casualty, any
Borrower suffering such taking or casualty, on its own behalf or on behalf of
any of its Restricted Subsidiaries suffering such taking or casualty, may use an
amount equal to such Net Proceeds received by such Borrower or such Restricted
Subsidiary to replace, restore or repair any property or asset so taken or
destroyed or damaged, including, without limitation, to make Acquisitions
permitted by Section 7.7(b); provided, that (i) any such Acquisitions or
replacements, restorations or repairs are of assets substantially similar in
nature to, and of equal or better quality than, the assets which were the
subject of such Asset Sale; (ii) are purchased, restored or repaired for a fair
market price and (iii) such Acquisition, replacement, restoration or repair, as
the case may be, occurs on or before the date which is 365 days after the date
on which the Net Proceeds from such Asset Sale are received from time to time by
such Borrower or such Restricted Subsidiary (the Reinvestment Deadline ). In the
event such Borrower or such Restricted Subsidiary exercises such right only as
to a portion of such Net Proceeds, then such unused portion thereof shall be
used to prepay the Term Loans and permanently reduce the Revolving Credit
Commitment in accordance with Sections 2.7(e) and (f) on or before the
Reinvestment Deadline, by the amount of such Net Proceeds that such Borrower or
such Restricted Subsidiary elects not to reinvest.
(b) On or before the Reinvestment Deadline, a Responsible
Officer shall deliver a certificate executed and delivered by such Responsible
Officer, certifying (i) the aggregate amount and use of such Net Proceeds
actually reinvested in accordance with this Section 2.18 and (ii) the amount of
prepayments and reductions in the Revolving Credit Commitments, if any, required
by Section 2.18(c).
(c) On the last day of the 365 day period referred to in
Section 2.18(a) applicable to any Net Proceeds or, at the option of the Required
Lenders, upon the occurrence of an Event of Default, the Term Loans shall be
prepaid and the Revolving Credit Commitments shall be permanently reduced as
provided in Sections 2.7(e) and (f) by an amount equal to such Net Proceeds
which have not been reinvested in accordance with this Section 2.18.
2.19 Guaranty Provisions. Each Borrower acknowledges and
agrees that all Obligations of the Borrowers shall be joint and several
Obligations of each individual Borrower, and in furtherance of such joint and
several Obligations, each Borrower hereby irrevocably guarantees the payment of
all Obligations as set forth in this Section 2.19.
(a) Guaranty. Each Borrower hereby absolutely,
unconditionally and irrevocably
(i) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise, of all Obligations of each other Borrower and each other Loan Party,
whether for principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic stay under
Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. ss. 362(a), and
the operation of Sections 502(b) and 506(b) of the United States Bankruptcy
Code, 11 U.S.C. ss. 502(b) and ss. 506(b)); and
(ii) indemnifies and holds harmless each of the Lenders, the
Administrative Agent, the Issuing Lender, the Managing Agents and the other
Agents (the Lender Parties ) for any and all costs and expenses (including
reasonably attorneys' fees and expenses) incurred by such Lender Party in
enforcing any rights under hereunder;
provided, however, that each Borrower shall only be liable under this Section
for the maximum amount of such liability that can be hereby incurred without
rendering this Section 2.19 or any other part of this Agreement, as it relates
to such Borrower, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount.
This Guaranty and the provisions of this Section 2.19
constitutes a guaranty of payment when due and not of collection, and each
Borrower specifically agrees that it shall not be necessary or required that any
Lender Party exercise any right, assert any claim or demand or enforce any
remedy whatsoever against a Borrower or any other Loan Party (or any other
Person) before or as a condition to the obligations of each other Borrower
hereunder.
(b) Acceleration of Guaranty. Each Borrower agrees that, in
the event of a Default of the type set forth in Section 8.1(f) and if such event
shall occur at a time when any of the Obligations of the Borrowers and each
other Loan Party may not then be due and payable, each Borrower will pay to the
Administrative Agent for the account of the Lenders forthwith the full amount
which would be payable hereunder by such Borrower if all such Obligations were
then due and payable.
(c) Guaranty Absolute, Etc. Section 2.19 shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until all Obligations of each Borrower
and each other Loan Party have been paid in full, all obligations of each
Borrower hereunder shall have been paid in full, all Letters of Credit have
expired or been terminated and all Commitments shall have terminated. Each
Borrower guarantees that the Obligations of each other Borrower and each other
Loan Party will be paid strictly in accordance with the terms of this Agreement
and each other Loan Document under which they arise, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Lender Party with respect thereto. The
liability of each Borrower under this Section 2.19 shall be absolute,
unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(ii) the failure of any Lender Party
(A) to assert any claim or demand or to enforce any right or remedy
against any other Borrower, any other Loan Party or any other Person (including
any other guarantor) under this Section 2.19, any other Loan Document or
otherwise, or
(B) to exercise any right or remedy against any other guarantor of, or
collateral securing, any Obligations of any other Borrower or any other Loan
Party;
(iii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of any other Borrower or any other
Loan Party, or any other extension, compromise or renewal of any Obligation of
any other Borrower or any other Loan Party;
(iv) any reduction, limitation, impairment or termination of the
Obligations of any other Borrower or any other Loan Party for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and each Borrower hereby waives any right to or claim
of) any defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, the Obligations
of any other Borrower, any other Loan Party or otherwise;
(v) any amendment to, rescission, waiver, or other modification
of, or any consent to departure from, any of the terms of this Agreement, any
Note or any other Loan Document;
(vi) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Lender Party or any
holder of any Note securing any of the Obligations of any other Borrower or any
other Loan Party; or
(vii) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any other Borrower,
any other Loan Party, any surety or any guarantor.
(d) Reinstatement, Etc. Each Borrower agrees that this Section
2.19 shall continue to be effective or be reinstated, as the case may be, if at
any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Lender Party, upon the
insolvency, bankruptcy or reorganization of any other Borrower, any other Loan
Party or otherwise, all as though such payment had not been made.
(e) Waiver, Etc. Each Borrower hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of any other Borrower or any other Loan Party and this Section 2.19
and any requirement that any Lender Party protect, secure, perfect or insure any
security interest or Lien, or any property subject thereto, or exhaust any right
or take any action against any other Borrower, any other Loan Party or any other
Person (including any other guarantor) or entity or any collateral securing the
Obligations of any other Borrower or any other Loan Party, as the case may be.
(f) Postponement of Subrogation, Etc. No Borrower will
exercise any rights which it may acquire by way of rights of subrogation under
this Section 2.19, by any payment made hereunder or otherwise, until the prior
payment, in full and in cash, of all Obligations of each Borrower and each other
Loan Party. Any amount paid to any Borrower on account of any such subrogation
rights prior to the payment in full of all Obligations of the Borrowers and each
other Loan Party shall be held in trust for the benefit of the Lender Parties
and shall immediately be paid to the Administrative Agent and credited and
applied against the Obligations of the Borrowers and each other Loan Party,
whether matured or unmatured, in accordance with the terms hereof; provided,
however, that if
(i) any Borrower has made payment to the Lender Parties
of all or any part of the Obligations of the Borrowers or any other Loan
Party; and
(ii) all Obligations of the Borrowers and each other Loan
Party have been paid in full, all Letters of Credit have expired or been
terminated and all Commitments have been permanently terminated,
each Lender Party agrees that, at any Borrower's request, the Administrative
Agent, on behalf of the Lenders, will execute and deliver to such Borrower
appropriate documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to such Borrower of an
interest in the Obligations resulting from such payment by such Borrower. In
furtherance of the foregoing, for so long as any Obligations or Commitments
remain outstanding, each Borrower shall refrain from taking any action or
commencing any proceeding against any other Borrower or any other Loan Party (or
its successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in the respect of payments made under the
provisions of this Section 2.19 to any Lender Party.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the Revolving
Credit Lenders set forth in Section 3.3(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrowers on any Business Day in
such form as may be approved from time to time by the Issuing Lender; provided,
that the Issuing Lender shall not issue any Letter of Credit if, after giving
effect to such issuance, (i) the outstanding L/C Obligations would exceed
$50,000,000 or (ii) the aggregate amount of all outstanding L/C Obligations and
Revolving Credit Loans would exceed the aggregate Available Revolving Credit
Commitments. Each Letter of Credit shall (i) be denominated in Dollars, (ii) be
a standby letter of credit issued for the account of a Borrower, which finances
the working capital and business needs of such Borrower and its Restricted
Subsidiaries, and (iii) expire no later than the earlier of (x) five Business
Days prior to the Revolving Credit Termination Date and (y) the date which is 12
months after its date of issuance. Any request by a Borrower to renew or extend
an existing Letter of Credit, or any renewal of any existing Letter of Credit
pursuant to the terms thereof, shall be deemed to be, for all purposes of this
Agreement, the issuance of a new Letter of Credit hereunder and each such
renewal or extension shall be subject to, and the Issuing Lender shall be
entitled to the benefits of, this Section 3.
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any other Lender to exceed any limits imposed by,
any applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Borrowers
may from time to time request that the Issuing Lender issue a Letter of Credit
(or that an existing Letter of Credit be renewed or extended) by delivering to
the Issuing Lender and the Administrative Agent a Notice of Letter of Credit
Request, a Compliance Certificate, giving effect to the requested Letter of
Credit, and an L/C Application therefor, completed to the reasonable
satisfaction of the Issuing Lender, and such other certificates, documents and
other papers and information as the Issuing Lender may reasonably request. Upon
receipt of any Notice of Letter of Credit Request, Compliance Certificate and
L/C Application, the Issuing Lender will notify the Revolving Credit Lenders
thereof and process such L/C Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than five Business Days after its receipt
of the L/C Application therefor and all such other certificates, documents and
other papers and information relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the applicable Borrower. The Issuing Lender shall furnish a
copy of such Letter of Credit to the applicable Borrower and each Revolving
Credit Lender promptly following the issuance thereof.
3.3 Letter of Credit Participations. (a) The Issuing Lender
irrevocably agrees to grant and hereby grants to each Revolving Credit Lender,
and, to induce the Issuing Lender to issue Letters of Credit hereunder, each
Revolving Credit Lender irrevocably agrees to accept and purchase and hereby
accepts and purchases from the Issuing Lender, on the terms and conditions
hereinafter stated, for such Revolving Credit Lender's own account and risk an
undivided interest equal to such Revolving Credit Lender's Revolving Credit
Facility Percentage in the Issuing Lender's obligations and rights under each
Letter of Credit issued by the Issuing Lender and the amount of each draft paid
by the Issuing Lender thereunder. Each Revolving Credit Lender unconditionally
and irrevocably agrees with the Issuing Lender that, if a draft is paid under
any Letter of Credit issued by the Issuing Lender for which the Issuing Lender
is not reimbursed in full by the Borrowers in accordance with Section 3.4(a),
such Revolving Credit Lender shall pay to the Issuing Lender upon demand at the
Issuing Lender's address for notices specified herein an amount equal to such
Revolving Credit Lender's Revolving Credit Facility Percentage of the amount of
such draft, or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any Revolving Credit
Lender to the Issuing Lender pursuant to Section 3.3(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit is paid to the Issuing Lender within three Business Days after the
date such payment is due, such Revolving Credit Lender shall pay to the Issuing
Lender on demand an amount equal to the product of (i) such amount, times, (ii)
the daily average Federal Funds Rate during the period from and including the
date such payment is required to the date on which such payment is immediately
available to the Issuing Lender, times, (iii) a fraction the numerator of which
is the number of days that elapse during such period and the denominator of
which is 360. If any such amount required to be paid by any Revolving Credit
Lender pursuant to Section 3.3(a) is not in fact made available to the Issuing
Lender by such Revolving Credit Lender within three Business Days after the date
such payment is due, the Issuing Lender shall be entitled to recover from such
Revolving Credit Lender, on demand, such amount with interest thereon calculated
from such due date at a rate per annum equal to the Base Rate for Revolving
Credit Loans. A certificate of the Issuing Lender submitted to any Revolving
Credit Lender with respect to any amounts owing under this Section 3.3 shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any Revolving Credit
Lender its pro rata share of such payment in accordance with Section 3.3(a), the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from a Borrower or otherwise, including proceeds of Collateral applied
thereto by the Issuing Lender), or any payment of interest on account thereof,
the Issuing Lender will, if such payment is received prior to 12:00 p.m.,
Houston, Texas time, on a Business Day, distribute to such Lender its pro rata
share thereof on the same Business Day or, if received later than 12:00 p.m., on
the next succeeding Business Day; provided, however, that in the event that any
such payment received by the Issuing Lender shall be required to be returned by
the Issuing Lender, such Revolving Credit Lender shall return to the Issuing
Lender the portion thereof previously distributed by the Issuing Lender to it.
(d) Notwithstanding anything to the contrary in this
Agreement, each Revolving Credit Lender's obligation to make the Loans referred
to in Section 3.4(b) and to purchase and fund participating interests pursuant
to Section 3.3(a) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender or the Borrowers may have against the Issuing Lender, the Borrowers or
any other Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default or the failure to satisfy any of the other conditions specified in
Section 5; (iii) any adverse change in the condition (financial or otherwise) of
any Loan Party; (iv) any breach of this Agreement or any other Loan Document by
any Loan Party or any Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
3.4 Reimbursement Obligation of the Borrowers. (a) The
Borrowers jointly and severally agree hereby to reimburse the Issuing Lender (it
being understood that such reimbursement shall be effected by means of a
borrowing of Revolving Credit Loans unless the Administrative Agent shall
determine in its sole discretion that such Loans may not be made for such
purpose as a result of a Default pursuant to Section 8.1(f)), upon receipt of
notice from the Issuing Lender of the date and amount of a draft presented under
any Letter of Credit and paid by the Issuing Lender, for the amount of (i) such
draft so paid and (ii) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment. Each such
payment shall be made to the Issuing Lender, at its address for notices
specified herein in Dollars and in immediately available funds, on the date on
which any Borrower receives such notice, if received prior to 11:00 a.m.,
Houston, Texas time, on a Business Day and otherwise on the next succeeding
Business Day.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrowers under this Section 3.4, (i) from the date the draft
presented under the affected Letter of Credit is paid to the date on which the
Borrowers are required to pay such amounts pursuant to paragraph (a) above at a
rate per annum equal to the Base Rate for Revolving Credit Loans and (ii)
thereafter until payment in full at the Default Rate. Except as otherwise
specified in Section 3.4(a), each drawing under any Letter of Credit shall
constitute a request by the Borrowers to the Administrative Agent for a
borrowing of Revolving Credit Loans that are Base Rate Loans pursuant to Section
2.1 in the amount of such drawing. The Borrowing Date with respect to such
borrowing shall be the date of payment of such drawing and the proceeds of such
Loans shall be applied by the Administrative Agent to reimburse the Issuing
Lender for the amounts paid under such Letter of Credit.
3.5 Obligations Absolute. Subject to the penultimate sentence
of this Section 3.5, the Borrowers' obligations under this Section shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrowers may have or
have had against the Issuing Lender, any Lender or any beneficiary of a Letter
of Credit. The Borrowers also agree with the Issuing Lender that the Issuing
Lender and the other Lenders shall not be responsible for, and the Reimbursement
Obligations of the Borrowers under Section 3.4(a) shall not be affected by,
among other things, (i) the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or (ii) any dispute between or among the
Borrowers and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or (iii) any claims whatsoever of
the Borrowers against any beneficiary of such Letter of Credit or any such
transferee. The Issuing Lender and the other Lenders shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by such Person's gross negligence
or willful misconduct. The Borrowers agree that any action taken or omitted by
the Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in
Section 5-109 of the Uniform Commercial Code of the State of New York, shall be
binding on the Borrowers and shall not result in any liability of either the
Issuing Lender or any other Lender to the Borrowers.
3.6 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrowers and the Revolving Credit Lenders of the date and amount thereof.
Subject to Section 3.5, the responsibility of the Issuing Lender to the
Borrowers in connection with any draft presented for payment under any Letter of
Credit shall, in addition to any payment obligation expressly provided for in
such Letter of Credit, be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection with such
presentment appear on their face to be in conformity with such Letter of Credit.
3.7 L/C Application. To the extent that any provision of any
L/C Application related to any Letter of Credit is inconsistent with the
provisions of this Agreement, the provisions of this Agreement shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and to issue Letters of Credit, the Borrowers
hereby jointly and severally represent and warrant to the Agents and each Lender
that:
4.1 Financial Condition. (a) The Initial Financial Statements
and the other Financial Statements (including in each case the related schedules
and notes) delivered pursuant to Section 6.1 present fairly, in all material
respects, the consolidated and combined financial position of the Borrowers and
the Restricted Subsidiaries at the respective dates of the balance sheets
included therein and the consolidated and combined results of their operations
and their consolidated and combined cash flows for the respective periods set
forth therein and have been prepared in accordance with GAAP consistently
applied throughout the periods involved (subject, in the case of interim
Financial Statements, to normal year-end adjustments). As of the date of any
balance sheet included in such Financial Statements, no Borrower or any
Restricted Subsidiary then had any outstanding Indebtedness to any Person or any
material, individually or in the aggregate, obligations pursuant to any
Guaranty, contingent liability or liability for taxes, or any long-term lease or
unusual forward or long-term commitment (including, without limitation, any
Interest Rate Protection Agreement or foreign currency swap or exchange
transaction), or any material, individually or in the aggregate, unrealized or
anticipated loss, not reflected in accordance with GAAP on such balance sheet or
in the notes related thereto in the Financial Statements.
(b) No change has occurred in the business, operations,
properties, liabilities, condition (financial or otherwise), results of
operations or prospects of any Borrower or any Restricted Subsidiary, as
reflected in the Initial Financial Statements, that could reasonably be
expected, either alone or together with all other such changes affecting all or
any of the Borrowers and the Restricted Subsidiaries, to have a Material Adverse
Effect.
4.2 Existence; Compliance with Law. Each Loan Party which is a
partnership or a corporation (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, as the case may be, 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 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) possesses, and
is in compliance with, all Governmental Approvals and Requirements of Law except
to the extent that the failure to possess or comply with any Governmental
Approval or Requirement of Law could not reasonably be expected, either alone or
together with all such failures by the Borrowers and the Restricted
Subsidiaries, to have a Material Adverse Effect. Schedule 4.2 sets forth for
each Borrower and each Restricted Subsidiary, the jurisdiction of each formation
of such Borrower and Restricted Subsidiary and each jurisdiction where such
entities are qualified to do business, as of the date hereof.
4.3 Power; Authorization; Enforceable Obligations. Each Loan
Party which is a partnership or a corporation has the corporate or partnership,
as the case may be, power and authority, and the legal right, to make, deliver
and perform the Loan Documents to which it is a party and (in the case of each
Borrower) to borrow hereunder and has taken all necessary corporate or
partnership, as the case may be, action to authorize the borrowings on the terms
and conditions of this Agreement and the Notes and to authorize the execution,
delivery and performance of the Loan Documents to which it is a party. Except as
set forth on Schedule 4.3, 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. 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 Loan Party party
thereto. This Agreement constitutes, and each other Loan Document when executed
and delivered will constitute, a legal, valid and binding obligation of each
Loan Party party thereto enforceable against such Loan Party in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.4 No Legal Bar. The execution, delivery and performance of
the Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law, Contractual Obligation or Charter
Document of any Loan Party and will not result in, or require, the creation or
imposition of any Lien on any of its properties or assets (or any revenues,
income or profits therefrom) pursuant to any such Requirement of Law or
Contractual Obligation.
4.5 No Material Litigation. Except as set forth on Schedule
4.5, no Litigation is pending or, to the knowledge of any Borrower, threatened
to which any Borrower or Subsidiary is or may become a party (a) with respect to
any of the Loan Documents or any of the transactions contemplated hereby or
thereby, (b) with respect to any Franchises or other Governmental Approvals
necessary for the conduct of such Borrower s or Subsidiary s business or (c)
which could reasonably be expected to have a Material Adverse Effect.
4.6 No Default. No Borrower or Subsidiary 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.
4.7 Ownership of Property; Liens. Each Borrower and Subsidiary
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 the property of any Loan Party
is subject to any Lien, other than Permitted Liens.
4.8 Intellectual Property. Each Borrower and Subsidiary 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 which the failure to own or hold a license to use
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 the Borrowers and the 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.
4.9 No Burdensome Restrictions. No Requirement of Law
or Contractual Obligation of any Borrower or Subsidiary could reasonably be
expected to have a Material Adverse Effect.
4.10 Taxes. Each Borrower and Subsidiary has filed or caused
to be filed all tax returns which, to the knowledge of the Borrowers, 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 or assets
(or any revenues, income or profits therefrom) and all other taxes, fees or
other charges imposed on it or any of its property or assets (or any revenues,
income or profits therefrom) 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 Loan Party); no tax Lien has been
filed, and, to the knowledge of the Borrowers, no claim is being asserted, with
respect to any such tax, fee or other charge.
4.11 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. If requested by any Lender or the Administrative
Agent, each Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1 referred to in said Regulation G or Regulation U, as the case
may be.
4.12 ERISA. (a) 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. No Borrower or any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and no Borrower or
any Commonly Controlled Entity would become subject to any liability under ERISA
if such 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. No Borrower or any
Commonly Controlled Entity has any liability, individually or in the aggregate,
to the PBGC (other than required insurance premiums, all of which that have
become due have been paid) or any Plan that has not been satisfied in full and
no event or condition has occurred, or is reasonably expected to occur, which
presents a material risk of termination of any Plan under circumstances which
could result in a material liability to any Borrower or any Commonly Controlled
Entity.
(b) In each case, assuming that the provisions of PL 103-465,
the General Agreement on Tariffs and Trade ("GATT"), were currently in effect,
(i) no Plan established or maintained by any Borrower or any Commonly Controlled
Entity would have a "liquidity shortfall" within the meaning of Section
302(c)(5) of ERISA, (ii) the liabilities of any such Plan, determined on each of
an ongoing and a termination basis, would not be increased, (iii) no additional
PBGC premiums relating to any such Plan would be required, (iv) the minimum
contribution obligations with respect to any such Plan would not be increased
solely by reason of the application of the provisions of GATT, (v) no Lien upon
any property or assets of any Borrower or any Restricted Subsidiary (or upon any
revenues, income or profits of any Borrower or any Subsidiary therefrom) would
be imposed with respect to obligations and responsibilities to any such Plan and
(vi) no notice to participants with respect to the level of funding in any such
Plan would be required.
4.13 Government Regulation. No Borrower or any Subsidiary is
(a) an "investment company" or a company "controlled by" an "investment
company," as such terms are defined in the Investment Company Act of 1940, (b) a
"holding company" or a "subsidiary" or "affiliate" of any Person that is a
"holding company," other than a Person that is a "holding company" exempt from
the provisions of the Public Utility Holding Company Act of 1935 ("PUHCA"), and
the rules thereunder, except Section 9(a)(2) of the PUHCA, as such terms are
defined in such act, or (c) subject to any Requirement of Law that regulates or
otherwise limits its ability to issue promissory notes or securities (other than
the Securities Act of 1933, the Trust Indenture Act of 1939 and state "blue sky"
laws) or (in the case of any Loan Party) to perform its obligations under the
Loan Documents.
4.14 Subsidiaries. Schedule 4.14 sets forth a complete and
correct list of all the Subsidiaries at the date of this Agreement and of all
the issued and outstanding Capital Securities, and the owners thereof, of each
Borrower and each such Subsidiary on the date of this Agreement.
4.15 General Partners' 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 organization, (b) has the corporate or
partnership, as the case may be, 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 entity 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) possesses, and is in compliance
with, all Governmental Approvals and Requirements of Law except to the extent
that the failure to possess or comply with any Governmental Approval or
Requirement of Law could not reasonably be expected, either alone or together
with all such failures by all or any of the General Partners, to have a Material
Adverse Effect.
4.16 General Partners' Power: Authorization; Enforceable
Obligations. Each General Partner has the corporate or partnership, as the case
may be, power and authority and the legal right to make, deliver and perform on
behalf of the Loan Party of which it is a general partner, and thereby legally
bind such Loan Party to perform, (a) in the case of such Loan Party which is a
Borrower, this Agreement, and has taken all necessary action to authorize the
borrowings by such Borrower on the terms and conditions of this Agreement and
the Notes and (b) in the case of each such Loan Party (including such Borrower),
the Loan Documents to which it is a party and has taken all necessary action to
authorize the execution and delivery on behalf of such Loan Party of, and
thereby legally bind such Loan Party to perform, this Agreement, the Notes and
the other Loan Documents to which such Loan Party is a party. This Agreement has
been, and each of the other Loan Documents will be, duly executed and delivered
by each General Partner on behalf of each Loan Party of which it is a general
partner which is a party thereto.
4.17 Accuracy of Information. (a) All factual information
heretofore or contemporaneously furnished by or on behalf of any Loan Party or
any of its Affiliates to any 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 any Agent or any Lender pursuant to or in
connection with this Agreement, any Loan Document or the transactions
contemplated hereby or thereby 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.
(b) All financial budgets and projections that have been or
are hereafter from time to time prepared by or on behalf of the Borrowers and
made available to any Agent or any Lender pursuant to or in connection with this
Agreement, any other Loan Document or the transactions contemplated hereby or
thereby have been and will be prepared and furnished in good faith and were and
will be based on facts and assumptions that are believed by the management of
the Borrowers to be reasonable in light of the then current and foreseeable
business conditions of the Borrowers and the Restricted Subsidiaries and
represented and will represent the Borrowers' management's good faith estimate
of the consolidated and combined projected financial performance of the
Borrowers and the Restricted Subsidiaries based on the information available to
the Responsible Officers at the time so furnished.
4.18 Purpose of Loans. The proceeds of the Loans shall be used
(a) for the Refinancing, (b) to make distributions to ACC not to exceed
$110,000,000 (the ACC Distribution ), (c) for Chelsea, or a Restricted
Subsidiary of Chelsea, to acquire certain assets of First Carolina
Communications, L.P. (the "First Carolina Acquisition") for a purchase price not
to exceed $49,000,000, and (d) by the Borrowers and their Restricted
Subsidiaries for other working capital and general corporate purposes; provided,
however, in no event shall the aggregate amount of the proceeds of the Loans
used pursuant to clause (b) and used for the payment of the outstanding
Indebtedness due under the Northeast/Robinson Credit Agreement exceed
$260,000,000.
4.19 Environmental Matters. Except as set forth on
Schedule 4.19:
(a) The facilities and properties owned, leased or operated by
any Borrower or any Restricted Subsidiary (the "Properties") do not contain,
and, to the best knowledge of the Borrowers, have not previously contained, any
Materials of Environmental Concern in amounts or concentrations which (i)
constitute or constituted a material violation of, or (ii) could reasonably be
expected to give rise to any material liability under, any Environmental Law.
(b) To the best knowledge of the Borrowers, 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 any Borrower or any Restricted Subsidiary (the
"Business") which could materially interfere with the continued operation of the
Properties or materially impair the fair saleable value thereof.
(c) No Borrower or any Restricted Subsidiary 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 any 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 the Borrowers, 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) No Litigation is pending or, to the knowledge of any
Borrower, threatened, under any Environmental Law to which any Borrower or any
Restricted Subsidiary is or, to the knowledge of any Borrower, 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 the Borrowers, 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 any Borrower or
any Restricted Subsidiary 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.
4.20 Solvency. As of the Closing Date each Loan Party is
Solvent and on each date on which a Loan is made or a Letter of Credit is issued
(after giving effect to the transactions being consummated on such day) will be
Solvent.
4.21 Franchises; FCC and Copyright Matters. (a) Schedule 4.21
sets forth all of the Systems owned or operated, and all of the Franchises held
by, the Loan Parties and correctly sets forth the issuer of and the termination
date, if any, of each such Franchise, provided, however, that if any Loan Party
acquires any System or Franchise after the Closing Date, the Borrowers shall
provide a notice to the Administrative Agent containing information of the type
contained in Schedule 4.21 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 Section shall be deemed to constitute
consent to an Acquisition or Investment otherwise prohibited by the terms of
this Agreement. The Administrative Agent shall promptly deliver a copy of each
such notice to the Lenders.
(b) All of the following are true, correct and complete
statements with respect to each Borrower and Subsidiary, except for facts or
circumstances which could not reasonably be expected, either alone or together
with all such facts and circumstances affecting all or any of the Borrowers or
the Subsidiaries, to have a Material Adverse Effect:
(i) Each Franchise listed in Schedule 4.21 was duly and
validly issued by the issuer thereof pursuant to procedures which complied with
all requirements of applicable law.
(ii) Each Borrower and Subsidiary has the right to use all
Franchises and all other material 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 or desirable for the conduct of the business of such Borrower
or Subsidiary.
(iii) Each such Franchise or other license or right held by
any Borrower or Subsidiary is in full force and effect, and such Borrower or
Subsidiary 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 Subsidiary has duly filed, in a timely
manner, all cable television registration statements and other filings which are
required to be filed by it 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 Subsidiary has 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 Subsidiary has 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 or Subsidiary shall have advised such
Borrower or Subsidiary 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 Loan Party), has
remitted payments of all required royalty fees and has obtained the compulsory
license provided for in Section Ill 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 Subsidiary is liable to any Person for
copyright infringement under the Copyright Act as a result of its business
operations.
(ix) No consents or authorizations of, filings with, notices
to or other acts by or in respect of, any Governmental Authority or any other
Person are required in order to operate the Systems owned or operated by any
Borrower or Subsidiary or to permit such Borrower or Subsidiary to carry on the
business of such Systems as presently conducted, including, without limitation,
Chelsea has obtained, or prior to the consummation of the First Carolina
Acquisition will obtain, all such consents and authorizations of, made all such
filings with, and given all such notices to, all applicable Governmental
Authorities that are required in respect of the First Carolina Acquisition.
4.22 Subordinated Indebtedness. Schedule 4.22 (as supplemented
by notice to the Lenders and the Agents from time to time) sets forth a
description of all of the Subordinated Indebtedness owed by each Borrower and
Restricted Subsidiary, including but not limited to a description of the terms
of such Subordinated Indebtedness as well as any and all agreements relating to
such Subordinated Indebtedness. No Borrower or Restricted Subsidiary owes any
Subordinated Indebtedness other than the Subordinated Indebtedness described on
Schedule 4.22, as supplemented as aforesaid.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Loans. The agreement of each Lender
to make the initial Loans requested to be made by it and the obligation of the
Issuing Lender to issue any Letter of Credit are subject to the satisfaction,
immediately prior to or concurrently with the making of such Loan or the
issuance of such Letter of Credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall
receive each of the following, in sufficient number for each Lender, except
where otherwise noted, and in form and substance satisfactory to the Lenders:
(i) this Agreement, duly executed and delivered on behalf of each
Borrower by one or more Responsible Officers as required by such Borrower's
Charter Documents;
(ii) faxed copies of Revolving Credit Notes (with the
originals of such Notes to be delivered to the Administrative Agent promptly
after the Closing Date) payable to each Revolving Credit Lender, dated the date
hereof, duly executed and delivered on behalf of each Borrower by one or more
Responsible Officers as required by such Borrower's Charter Documents;
(iii) faxed copies of Term Loan Notes (with the originals of
such Notes to be delivered to the Administrative Agent promptly after the
Closing Date) payable to each Term Loan Lender, dated the date hereof, duly
executed and delivered on behalf of each Borrower by one or more Responsible
Officers as required by such Borrower s Charter Documents;
(iv) a faxed copy of a Guaranty Agreement (with the original
of such Guaranty Agreement to be delivered to the Administrative Agent promptly
after the Closing Date), dated the date hereof, duly executed and delivered on
behalf of (A) each Subsidiary of Chelsea and Mountain Cable Communications
Corporation, (B) Adelphia Cablevision, L.P. by the General Partner or General
Partners thereof, (C) Mountain, by the General Partner or General Partners
thereof and (D) Three Rivers, by the General Partner or General Partners
thereof, each by one or more Responsible Officers of such Person as required by
their respective Charter Documents;
(v) a faxed copy of a Borrower Assignment of Partnership
Interests (with the original of such Borrower Assignment of Partnership
Interests to be delivered to the Administrative Agent promptly after the Closing
Date), dated the date hereof, duly executed and delivered on behalf of each of
Kittanning and Northeast by one or more Responsible Officers as required by
their respective Charter Documents;
(vi) a faxed copy of a Subsidiary Assignment of Partnership
Interests (with the original of such Subsidiary Assignments of Partnership
Interests to be delivered to the Administrative Agent promptly after the Closing
Date), dated the date hereof, duly executed and delivered on behalf of each of
(A) with respect to Adelphia Cablevision, L.P., a Responsible Officer of each of
the Adelphia Cablevision, L.P. partners, (B) with respect to Mountain, a
Responsible Officer of each of the Mountain partners and (C) with respect to
Three Rivers, a Responsible Officer of Mt. Lebanon Cablevision, Inc., each as
required by their respective Charter Documents;
(vii) a faxed copy of the Bent Assignment of Partnership
Interests (with the original of such Bent Assignment of Partnership Interests to
be delivered to the Administrative Agent promptly after the Closing Date) duly
executed and delivered by Walter L. Bent and a Responsible Officer of Bent &
Associates, Inc., as required by its Charter Documents;
(viii) a faxed copy of a Stock Pledge Agreement (with the
originals of such Stock Pledge Agreements to be delivered to the Administrative
Agent promptly after the Closing Date), dated the Closing Date, from each of (A)
ACC, (B) the Gans Family, (C) Chelsea and (D) Pericles Communications
Corporation, duly executed and delivered on behalf of such Person by one or more
Responsible Officers as required by their Charter Documents;
(ix) a faxed copy of a Management Subordination Agreement
(with the original of such Management Subordination Agreement to be delivered to
the Administrative Agent promptly after the Closing Date), dated the Closing
Date, duly executed and delivered on behalf of (A) ACC, (B) ACI and (C) ACTV,
each by a Responsible Officer as required by their respective Charter Documents;
(x) a faxed copy of an Affiliate Subordination Agreement (with
the original of such Affiliate Subordination Agreement to be delivered to the
Administrative Agent promptly after the Closing Date) from each holder of
Subordinated Indebtedness; and
(xi) a faxed copy of an Intercompany Indebtedness
Subordination Agreement (with the original of such Intercompany Indebtedness
Subordination Agreement to be delivered to the Administrative Agent promptly
after the Closing Date) executed and delivered by each Borrower and Restricted
Subsidiary.
(b) Refinancing. The Administrative Agent shall have
received evidence, satisfactory to it that:
(i) the Refinancing Indebtedness has been paid or otherwise
discharged in full, and all liens securing such Refinancing Indebtedness shall
have been released, which Indebtedness, together with accrued and unpaid
interest and fees thereon, in an aggregate principal amount (A) not to exceed
$335,000,000 with respect to the Chelsea Loan Agreement, and (B) subject to
Section 4.18, not to exceed $190,000,000 with respect to the Northeast/Robinson
Credit Agreement, may be paid contemporaneously from the proceeds of the Loans;
and
(ii) the Chelsea Loan Agreement and the Northeast/Robinson
Credit Agreement and any other agreements relating to the Refinancing
Indebtedness shall be terminated concurrently with the funding of the Loans,
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, with a counterpart for each Lender, a complete and correct copy of
each Management Agreement, duly certified as of the Closing Date as complete and
correct copies thereof, including all amendments, modifications or assignments
thereof, by a Responsible Officer of the Borrower or Restricted Subsidiary party
thereto.
(d) Borrowing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of a Responsible
Officer for each Borrower, and in the case of Robinson, a certificate executed
on behalf of the General Partner by a Responsible Officer, each dated the
Closing Date, substantially in the form of Exhibit 5.1(d), with appropriate
insertions and attachments, reasonably satisfactory in form and substance to the
Administrative Agent.
(e) Compliance Certificate. The Administrative Agent shall
have received, with a counterpart for each Lender, a certificate of a
Responsible Officer for each Borrower, and in the case of Robinson, a
certificate executed on behalf of each General Partner by a Responsible Officer,
each dated the Closing Date, demonstrating in a manner reasonably satisfactory
to the Administrative Agent pro forma compliance with the financial covenants
set forth in Section 7.1 as of the Closing Date.
(f) Corporate Proceedings of the Loan Parties. 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 each Loan Party that is a
corporation authorizing (i) the execution, delivery and performance of each Loan
Document to which such Loan Party is a party, (ii) in the case of Chelsea,
Kittanning and Northeast, the borrowings contemplated hereunder, (iii) the
pledge and/or assignment by such Loan Party of the Capital Securities described
in the Security Documents to which it is a party and/or the subordination by
such Loan Party of the rights of such Loan Party under any Management Agreement
or relating to any Subordinated Indebtedness as set forth in the Subordination
Agreements and (iv) in the case of the Subsidiaries, the guaranty by such
Subsidiaries of the Obligations, each certified by a Responsible Officer 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.
(g) Loan Party Incumbency Certificates. The Administrative
Agent shall have received, with a counterpart for each Lender, a certificate of
each Loan Party that is a corporation and of each corporate partner signing Loan
Documents on behalf of each Loan Party that is a partnership, dated the Closing
Date, as to the incumbency and signature of the officers of such Loan Party and
such General Partner executing any Loan Document on behalf of such Loan Party
and such General Partner which certificate shall be in form and substance
reasonably satisfactory to the Administrative Agent, executed by the President
or any Vice President and the Secretary or any Assistant Secretary of such Loan
Party and such General Partner.
(h) 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 Charter
Documents of each Loan Party that is a partnership (a Partnership Consent ) in
connection with (i) the execution, delivery and performance of each Loan
Document to which it is a party, (ii) the pledge and/or assignment by such Loan
Party of the Capital Securities described in the Security Documents to which it
is a party and/or the subordination by such Loan Party of the rights of such
Loan Party under any Management Agreement or relating to any Subordinated
Indebtedness as set forth in the Subordination Agreements, (iii) in the case of
the Subsidiaries, the guaranty by such Subsidiaries of the Obligations and (iv)
in the case of Robinson, the borrowings contemplated hereunder, certified on
behalf of such Loan Party by a Responsible Officer of the General Partner of
such Loan Party, 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.
(i) Charter Documents of Loan Parties. The Administrative
Agent shall have received, with a counterpart for each Lender, complete and
correct copies of the Charter Documents of each Loan Party which is a
partnership or a corporation, certified as of the Closing Date as complete and
correct copies thereof, including all amendments, modifications, revocations,
recisions, terminations and assignments, by a Responsible Officer.
(j) Consents, Licenses and Approvals. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of each
Borrower and Subsidiary executed and delivered on behalf of such Borrower and
Subsidiary by a Responsible Officer (i) attaching copies of all consents,
authorizations, filings and notices referred to in Section 4.3, if any, and (ii)
stating that such consents, authorizations, filings and notices are in full
force and effect, and each such consent, authorization, filing and notice shall
be in form and substance reasonably satisfactory to the Administrative Agent.
(k) Fees. The Managing Agents shall have received the fees to
be received on the Closing Date referred to in the Fee Letters and the other
Lenders shall have received the fees to be received by each of them on the
Closing Date as set forth in their commitment letters relating to this
Agreement.
(l) 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 Subsidiaries,
substantially in the form of Exhibit 5.1(l)(i);
(ii) the executed legal opinion of Colin H. Higgin, Esq.,
Deputy General Counsel of the Borrowers, substantially in the form of
Exhibit 5.1(l)(ii); and
(iii) the executed legal opinion of Fleischman & Walsh,
special counsel to the Borrowers and the Subsidiaries with respect to FCC
matters, substantially in the form of Exhibit 5.1(l)(iii).
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(m) Lien Searches. The Administrative Agent shall have
received the results of a recent search by a Person satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgment and tax lien
filings which may have been filed with respect to personal property of any Loan
Party, and the results of such search shall show no Liens against the personal
property of any Loan Party other than Permitted Liens and shall otherwise be
satisfactory to the Administrative Agent.
(n) Insurance. The Administrative Agent shall have received
certificates of insurance and other evidence in form and substance satisfactory
to it that all of the requirements of Section 6.5 shall have been satisfied.
(o) Transaction Statements; Pledged Stock; Stock Powers;
Acknowledgment and Consents. The Administrative Agent shall have received (i)
such executed copies of the Transaction Statements and Notices, in the forms
attached to each Assignment of Partnership Interests as Exhibit A and Exhibit B,
respectively, as are requested by the Administrative Agent, (ii) the
certificates representing the Capital Securities pledged pursuant to each Stock
Pledge Agreement, together with an undated stock power for each such certificate
executed in blank by the appropriate Responsible Officer and (iii)
Acknowledgment and Consents in the form attached to the Stock Pledge Agreements,
executed by the appropriate Responsible Officers.
(p) UCC Financing Statements. All UCC financing statements
deemed necessary or appropriate by the Administrative Agent to perfect the Liens
in favor of the Administrative Agent for the benefit of the Lenders, duly
executed by the appropriate Loan Party, to be recorded with the appropriate
filing offices.
5.2 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) Initial Conditions Satisfied. Each of the conditions
precedent set forth in Section 5.1 shall have been satisfied and shall continue
to be satisfied on the date of such Loan.
(b) Notice of Borrowing. The Administrative Agent has
received a Notice of Borrowing with respect to such Loan in accordance with
Section 2.3.
(c) Representations and Warranties. Each of the
representations and warranties made by the Loan Parties in or pursuant to any
Loan Document shall be true and correct in all material respects on and as of
such date as if made on and as of such date.
(d) 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.
(e) Requirements of Law. Such Loan will not contravene
any Requirement of Law applicable to such Lender.
(f) Leverage. On such date and after giving effect to the
Loans requested to be made on such date, the Senior Funded Debt Ratio on such
date shall not be greater than the Senior Funded Debt Ratio applicable pursuant
to Section 7.1 to the most recently ended fiscal quarter of the Borrowers for
which the Financial Statements and Compliance Certificate required by Sections
6.1 and 6.2(b) have been delivered.
(g) 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.
5.3 Conditions to Conversions. The agreement of each Lender to
Convert any Loan to a Eurodollar Loan on any date pursuant to a Notice of
Conversion is subject to the satisfaction of the following conditions precedent:
(a) Notice of Conversion. The Administrative Agent has
received a Notice of Conversion in accordance with Section 2.9.
(b) Representations and Warranties. Each of the
representations and warranties made by the Loan Parties in or pursuant to any
Loan Document shall be true and correct in all material respects on and as of
such date as if made on and as of such date.
(c) No Default. No Default or Event of Default shall
Have occurred and be continuing on such date.
(d) Requirements of Law. Such Conversion will not
contravene any Requirement of Law applicable to such Lender.
5.4 Conditions to all Letters of Credit. The agreement of the
Issuing Lender to issue the Letter of Credit requested to be issued by it on any
date (including, without limitation, the initial Letter of Credit) is subject to
the satisfaction of the following conditions precedent:
(a) Initial Conditions Satisfied. Each of the conditions
precedent set forth in Section 5.1 shall have been satisfied and shall continue
to be satisfied on the date of issuance of such Letter of Credit.
(b) Representations and Warranties. Each of the representations and
warranties made by any Loan Party 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, after giving effect to such Letter of Credit and the
proposed use thereof.
(c) No Default. No Default shall have occurred and be continuing on
such date or would occur after the issuance of such Letter of Credit on such
date and after giving effect to the proposed use thereof.
(d) Leverage. On such date and after giving effect to the Letters of
Credit requested to be made on such date, the Senior Funded Debt Ratio on such
date shall not be greater than the Senior Funded Debt Ratio applicable pursuant
to Section 7.1 to the most recently ended fiscal quarter of the Borrowers for
which the Financial Statements and Compliance Certificate required by Sections
6.1 and 6.2(b) have been delivered.
5.5 Satisfaction of Conditions. Each Borrowing by any Borrower
hereunder, each Conversion of any Loan pursuant to Section 2.9 and each issuance
of a Letter of Credit pursuant to Section 3 shall constitute a joint and several
representation and warranty by the Borrowers as of the date thereof that the
conditions contained in Section 5.1 and Section 5.2, 5.3 or 5.4, as the case may
be, have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrowers hereby jointly and severally agree that, so long
as the Commitments remain in effect or any Loan or Letter of Credit shall be
outstanding and until payment in full of the Loans and all other Obligations
that have become due when the Loans have been paid in full, each Borrower shall
and (except in the case of delivery of financial information and reports) shall
cause each of its Restricted Subsidiaries to:
6.1 Financial Statements. Furnish to each Lender and the
Administrative Agent:
(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 consolidated
and combined balance sheet of the Borrowers and the Restricted Subsidiaries as
at the end of such year and the related consolidated and combined statements of
income and retained earnings and of cash flows of the Borrowers and the
Restricted Subsidiaries for such year, setting forth in each case in comparative
form the figures for the previous year (beginning March 31, 1998), reported on
without qualification as to the Borrowers being a going concern or as to 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 fiscal quarters of the Borrowers,
the unaudited consolidated and combined balance sheet of the Borrowers and the
Restricted Subsidiaries as at the end of such quarter and the related unaudited
consolidated and combined statements of income and retained earnings and of cash
flows of the Borrowers and the Restricted 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 (beginning June
30, 1997), certified by a Responsible Officer of the Borrowers 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 Responsible Officer, as the
case may be, and disclosed therein. If any such change has occurred, the
Compliance Certificate shall include the applicable Financial Statement
Adjustments.
6.2 Certificates; Other Information. Furnish to each
Lender and the Administrative Agent:
(a) concurrently with the delivery of the Financial Statements
referred to in Section 6.1(a), a certificate of the independent certified public
accountants reporting on such Financial Statements stating that in making the
examination 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 Sections 6.1(a) and 6.1(b), a Compliance Certificate of the
Borrowers executed and delivered on behalf of the Borrowers by a Responsible
Officer and in the case of Robinson, executed and delivered on behalf of the
General Partner by a Responsible Officer (i) stating that, to the best of such
Responsible Officer's knowledge, after due inquiry, the Borrowers during such
period 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 them or any of them, and
that such Responsible Officer has obtained no knowledge, after due inquiry, of
the occurrence of any Default or Event of Default except as specified in such
certificate (if a Default or Event of Default has occurred, such Responsible
Officer shall further state in reasonable detail the duration of such Default or
Event of Default and what action any Borrower has taken, is taking or proposes
to take with respect thereto) and (ii) setting forth in reasonable detail the
calculations required to determine compliance with Sections 7.1, 7.2, 7.5(a) and
(b), 7.6, 7.7 and 7.15, including any necessary Financial Statement Adjustments;
(c) as soon as available and in any event within 30 days after
the end of each fiscal quarter of the Borrowers, an operating report in such
form as is agreed among the Borrowers and the Administrative Agent, including
the number of Basic Subscribers, Pay Subscribers (and the services provided to
such Pay Subscribers) and Homes Passed for each Borrower and its Restricted
Subsidiaries for each principal geographic area of service as of the first and
last day of such fiscal quarter;
(d) within five days after the same are sent, copies of all
financial statements and reports which any Borrower or ACC 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 any Borrower or ACC
may make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority;
(e) within ten Business Days after the end of each fiscal year
of the Borrowers, evidence in form and substance satisfactory to the
Administrative Agent that the Borrowers are in compliance with Section 6.5; and
(f) promptly, such additional financial and other
information as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. (a) File or cause to be filed all
tax returns which are required to be filed and pay and discharge or cause to be
paid and discharged promptly when due all taxes, assessments and other charges
imposed on it or its revenue, income, profits or capital or in respect of any of
its properties or assets by any Governmental Authority before the same shall
become delinquent or in default and (b) pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
other obligations of whatever nature, in each case except where (a) the amount
or validity thereof is currently being contested in good faith by appropriate
proceedings, (b) no Lien has attached with respect thereto (other than a
Permitted Lien with respect to which no foreclosure, distraint, sale or other
similar proceedings have been commenced or, if commenced, have been stayed) and
(c) reserves in conformity with GAAP with respect thereto have been provided on
the books of such Borrower or its Restricted Subsidiaries, as the case may be.
6.4 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 or partnership
existence and take all reasonable action to maintain all rights, privileges,
Franchises and other material licenses and Governmental Approvals and material
rights necessary or desirable in the normal conduct of its business, except as
otherwise permitted by Section 7.4; 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.
6.5 Maintenance of Property; Insurance; Net Proceeds from
Asset Sales. (a) Maintain and preserve all of its properties, owned or leased,
that are necessary or useful in the conduct of its business in good repair,
working order and condition, ordinary wear and tear excepted; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (including
public liability, product liability and business interruption) as are usually
insured against in the same general area by companies engaged in the same or
similar business; and furnish to the Administrative Agent certificates of
insurance from time to time received by it for each such policy of insurance
evidencing the Borrowers' compliance with Section 6.5(b).
(b) The Borrowers shall cause (i) the Administrative Agent to
be named, in a manner reasonably satisfactory to the Administrative Agent, (a)
as lender loss payee for the benefit of the Lenders under all policies of
casualty insurance maintained by the Borrowers and (b) as an additional insured
for the benefit of the Lenders on all policies of liability insurance maintained
by the Borrowers; and (ii) all insurance policies to contain a provision that
the policy may not be cancelled, terminated or modified without thirty (30)
days' prior written notice to the Administrative Agent.
(c) Subject to Section 2.18, immediately upon receipt thereof
by or on behalf of any Borrower or any Restricted Subsidiary, pay or cause to be
paid to the Administrative Agent at the Administrative Agent's Office, any and
all Net Proceeds arising out of any Asset Sale, which Net Proceeds shall be
applied by the Administrative Agent as a prepayment of the Loans pursuant to
Section 2.7(e) and (f).
6.6 Inspection of Property; Books and Records; Discussions.
(a) 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 (b)
permit representatives (whether or not officers or employees) of any Lender,
from time to time during such Borrower's normal daytime business hours, as often
as may be reasonably requested and upon reasonable notice to (i) visit any of
the premises or property of such Borrower or such Subsidiary, (ii) inspect, and
verify the amount, character and condition of, any of the properties or assets
of such Borrower or such Restricted Subsidiary, (iii) review and make extracts
from the books and records of such Borrower or such Restricted Subsidiary and
(iv) discuss the affairs, finances and accounts of such Borrower or such
Restricted Subsidiary with (A) its officers and employees, (B) its independent
public accountants (and the Borrowers hereby authorize such accountants to
discuss the finances and affairs of the Borrowers and the Restricted
Subsidiaries), (C) the Manager and (D) the General Partners; provided, that in
the case of any discussions pursuant to clause (b)(iv)(B), a representative of
the Borrowers designated by a Responsible Officer may be present.
6.7 Notices. Promptly (but in no event later than five days,
or thirty days with respect to Section 6.7(d)), after any Borrower or any
Restricted Subsidiary knows or has reason to know thereof) give notice to the
Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default,
specifying the nature and duration thereof and what action any Borrower has
taken, is taking or proposes to take with respect thereto;
(b) any default under any Contractual Obligation or
Governmental Approval of such Borrower or any of its Restricted Subsidiaries
which, together with all other such defaults of the Borrowers and the Restricted
Subsidiaries, could reasonably be expected to have a Material Adverse Effect;
(c)(i) any Litigation affecting such Borrower or any of its
Restricted Subsidiaries (A) in which the amount involved is $10,000,000 or more
and not covered by insurance or with respect to which any insurer has reserved
its rights or (B) in which injunctive or similar relief is sought, including,
without limitation, any Litigation which seeks (or reasonably may be expected to
seek) to rescind, revoke, terminate, cancel, withdraw, suspend, modify or change
adversely or withhold any Franchise or other Governmental Approval and (ii) any
Litigation between such Borrower or any of its Restricted Subsidiaries, on the
one hand, and any Governmental Authority, on the other hand, which, together
with all such Litigation of the Borrowers and the Restricted Subsidiaries, if
adversely determined could reasonably be expected to have a Material Adverse
Effect;
(d) any of the following events: (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 any 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;
(e) any condemnation or eminent domain proceeding or any
casualty that could reasonably be expected to result in a taking or loss or
damage in excess of $10,000,000; and
(f) any development or event which could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
such Borrower executed and delivered on behalf of such Borrower by a Responsible
Officer setting forth details of the occurrence referred to therein and stating
what action such Borrower proposes to take with respect thereto.
6.8 Environmental Laws. (a) Comply with, and ensure compliance
in all material respects 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.
6.9 Restricted Subsidiary Guaranties; Pledge of After Acquired
Capital Securities. (a) If at any time following the Closing Date any Borrower
or any of its Restricted Subsidiaries shall acquire at any time Capital
Securities of any nature whatsoever of any Borrower or any Restricted Subsidiary
which are not subject to the Lien created by the Security Documents, as soon as
possible and in no event later than thirty days after the relevant acquisition
date and, to the extent permitted by applicable law, grant to the Administrative
Agent, for the ratable benefit of the Lenders, a first priority Lien on such
Capital Securities as collateral security for the Obligations pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent.
(b) Each Borrower shall cause each new Restricted Subsidiary
of such Borrower created, acquired or designated as such by the appropriate
Responsible Officer after the date hereof, immediately upon such creation,
acquisition or designation, to execute a supplement to the Guaranty Agreement in
the form attached thereto and such other Loan Documents as the Administrative
Agent shall request, including but not limited to a Partnership Assignment
Agreement and/or a Stock Pledge Agreement. Such Borrower shall execute and
deliver or, as the case may be, shall cause any other Person holding any of the
Capital Securities of such new Restricted Subsidiary to execute and deliver such
Security Documents or supplements to Security Documents and such other Loan
Documents as the Administrative Agent shall request to effect a first priority
perfected Lien in favor of the Administrative Agent for the benefit of the
Lenders in and to 100% of the issued and outstanding Capital Securities, of such
new Restricted Subsidiary. If such new Restricted Subsidiary is a corporation,
such Borrower and/or such other Persons which hold the Capital Securities of
such new Restricted Subsidiary shall deliver to the Administrative Agent the
stock certificates evidencing such Capital Securities, together with undated
stock powers for each such certificate, duly executed in blank.
(c) In furtherance of the obligations of the Borrowers and
Restricted Subsidiaries set forth in Sections 6.9(a) and (b), each such Borrower
shall, and shall cause each Subsidiary or other appropriate Person to, (i)
execute, acknowledge and deliver, and thereafter register, file or record in the
respective offices of the appropriate Governmental Authorities, such financing
statements, documents and instruments and (ii) take all such actions reasonably
deemed by the Administrative Agent to be necessary or desirable to ensure the
creation, priority and perfection of the Liens contemplated by this Section 6.9.
6.10 Pledge During Event of Default. At any time after the
occurrence and during the continuance of an Event of Default, upon the request
of the Administrative Agent or the Required Lenders, promptly deliver such
security agreements, mortgages, pledges, guarantees and other security documents
as the Administrative Agent or the Required Lenders, as the case may be, may
reasonably request to grant to the Administrative Agent, for the ratable benefit
of the Lenders, to the extent permitted by applicable law, a fully perfected
first Lien on all right, title and interest of any Borrower or Restricted
Subsidiary in any unencumbered property of any Borrower or Restricted Subsidiary
of any nature whatsoever, as collateral security for the Obligations, pursuant
to documentation reasonably satisfactory to the Administrative Agent and take
all such actions (including obtaining releases of existing Liens) and deliver
all such other documents (including legal opinions, title insurance, consents
and corporate documents) as the Administrative Agent shall reasonably require to
ensure the priority and perfection of such Lien.
6.11 Interest Rate Protection. Within 180 days following the
Closing Date, enter into one or more Interest Rate Protection Agreements with a
party, and on terms, acceptable to the Managing Agents providing to the
Borrowers interest rate protection with respect to not less than the greater of
(a) the average aggregate amount of Loans outstanding from the Closing Date to
the date upon which such Interest Rate Protection Agreement is entered into and
(b) 50% of the maximum aggregate amount of Loans outstanding at any time during
the ninety-day period after the Closing Date, and having an expiry date no
earlier than the third anniversary of the Closing Date.
SECTION 7. NEGATIVE COVENANTS
The Borrowers hereby jointly and severally agree that, so long
as any of the Commitments remain in effect or any Loan or Letter of Credit shall
be outstanding and until payment in full of the Loans and all other Obligations
that have become due when the Loans have been paid in full, no Borrower shall,
nor shall permit any of its Restricted Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Senior Funded Debt Ratio. Permit at any time the Senior
Funded Debt Ratio to be greater than the ratio set forth below opposite the
period in which shall occur the last day of the most recently ended fiscal
quarter of the Borrowers:
Period Ratio
Closing Date through March 31, 1997 6.50 to 1.00
April 1, 1997 through September 30, 1997 6.25 to 1.00
October 1, 1997 through June 30, 1998 6.00 to 1.00
July 1, 1998 through December 31, 1998 5.75 to 1.00
January 1, 1999 through June 30, 1999 5.50 to 1.00
July 1, 1999 through December 31, 1999 5.25 to 1.00
January 1, 2000 through June 30, 2000 5.00 to 1.00
July 1, 2000 through June 30, 2001 4.75 to 1.00
July 1, 2001 through June 30, 2002 4.50 to 1.00
July 1, 2002 and Thereafter 4.00 to 1.00
(b) Interest Expense Coverage. Permit at any time the
Operating Cash Flow to Interest Expense Ratio to be less than the ratio set
forth below opposite the period in which shall occur the last day of the most
recently ended fiscal quarter of the Borrowers:
Period Ratio
Closing Date through 3/31/97 1.625 to 1.00
4/1/97 through 3/31/98 1.750 to 1.00
Thereafter 2.000 to 1.00
(c) Fixed Charge Coverage. Commencing on the first
anniversary of the Closing Date, permit at any time the Operating Cash Flow to
Fixed Charges Ratio to be less than 1.00 to 1.00.
(d) Pro Forma Debt Service. Permit at any time
Annualized Operating Cash Flow to Pro Forma Debt Service Ratio to be less than
1.10 to 1.00.
7.2 Limitation on Indebtedness. Create, incur, assume
or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Borrower under this Agreement
and Indebtedness evidenced by any Guaranty Agreement;
(b) Permitted Intercompany Indebtedness which is subordinated
to the Obligations pursuant to an Intercompany Indebtedness Subordination
Agreement that is in full force and effect and not being contested by any
Person;
(c) obligations of the Borrowers and the Restricted
subsidiaries, in an aggregate amount, not to exceed $35,000,000 at any time
outstanding in respect of Capital Leases;
(d) obligations of the Borrowers and the Restricted
Subsidiaries, in an aggregate amount not to exceed $2,000,000 at any time
outstanding in respect of Indebtedness consisting of secured purchase money
Indebtedness incurred by any Borrower or any Restricted Subsidiary in the
ordinary course of business;
(e) obligations of the Borrowers and the Restricted
Subsidiaries in respect of deferred Management Fees which are subordinated to
the Obligations pursuant to a Management Subordination Agreement that is in full
force and effect and not being contested by any Person;
(f) Affiliate Subordinated Indebtedness which is subordinated
to the Obligations pursuant to an Affiliate Subordination Agreement that is in
full force and effect and not being contested by any Person, in an aggregate
principal amount, together with all accrued and unpaid interest thereon, not to
exceed $100,000,000 at any time outstanding; and
(g) additional unsecured Indebtedness of the Borrowers and the
Restricted Subsidiaries in an aggregate principal amount not to exceed
$1,000,000 at any time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property or assets (or any revenues, income or
profits therefrom), whether now owned or hereafter acquired, except for
Permitted Liens.
7.4 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 so long as no Default would occur after giving effect thereto:
(a) subject to compliance with Sections 6.9(a) and 7.16, any
Restricted Subsidiary of any Borrower may be merged or consolidated with or into
such Borrower (provided that such Borrower shall be the continuing or surviving
Person) or with or into any one or more Wholly Owned Restricted Subsidiaries of
such Borrower (provided that the Wholly Owned Restricted Subsidiary or Wholly
Owned Restricted Subsidiaries shall be the continuing or surviving Person or
Persons);
(b) subject to compliance with Sections 6.9(a) and 7.16, any
Restricted Subsidiary of any Borrower may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise) to
such Borrower or any Wholly Owned Restricted Subsidiary of such Borrower;
(c) subject to compliance with Sections 6.9(a) and 7.16, any
Borrower may be merged or consolidated with or into any other Borrower or any
Wholly Owned Restricted Subsidiary of any Borrower other than Northeast, unless
Northeast becomes a Wholly Owned Restricted Subsidiary (provided that in the
case of a merger or consolidation with any such Wholly Owned Restricted
Subsidiary, a Borrower is the surviving Person and in the case of a merger with
Northeast, the other Borrower is the surviving Person), and any Borrower may
sell, lease, assign, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to any other Borrower or any Wholly
Owned Restricted Subsidiary of any Borrower other than Northeast, unless
Northeast becomes a Wholly Owned Restricted Subsidiary; and
(d) subject to compliance with Sections 6.9(a) and 7.16,
as permitted by Section 7.5(a).
7.5 Limitation on Asset Sales and Asset Swaps. 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 Restricted
Subsidiary, issue or sell any shares of such Restricted Subsidiary's Capital
Securities to any Person other than, subject to compliance with Sections 6.9(a)
and 7.16, the Borrower owning the Capital Securities of such Restricted
Subsidiary on the date hereof or any Wholly Owned Restricted Subsidiary of such
Borrower, except:
(a) voluntary Asset Sales; provided that (i) the subscribers
of the Systems sold by the Borrowers and the Restricted Subsidiaries in any
single voluntary Asset Sale or series of related voluntary Asset Sales, after
giving effect to any such voluntary Asset Sale or Asset Sales, shall have
contributed less than 15% of Annualized Operating Cash Flow based on the most
recent fiscal quarter ended prior to the date of such voluntary Asset Sale or
Asset Sales (the percentage of Annualized Operating Cash Flow contributed by
subscribers of a System is referred to as the "System Cash Flow Percentage") and
(ii) the System Cash Flow Percentage of all Systems sold by the Borrowers and
the Restricted Subsidiaries subsequent to the date of this Agreement, after
giving affect to any such voluntary Asset Sale or Asset Sales, shall not exceed,
in the aggregate, 25% of Annualized Operating Cash Flow for the most recently
ended fiscal quarter prior to such voluntary Asset Sale and on a combined basis
with Asset Swaps permitted under Section 7.5(b) shall not exceed 35% of
Annualized Operating Cash Flow for the most recently ended fiscal quarter prior
to such voluntary Asset Sale; provided further, that if such Asset Sale or Asset
Sales equals or exceeds $35,000,000, the selling Borrower, or the Borrower
owning, directly or indirectly, Capital Securities of a selling Restricted
Subsidiary, shall, at least seven Business Days prior to effecting any such
voluntary Asset Sale or Asset Sales, deliver to the Administrative Agent and the
Lenders a certificate of the Borrowers, executed and delivered on behalf of such
Borrowers by a Responsible Officer, demonstrating to the satisfaction of the
Administrative Agent pro forma compliance with the financial covenants set forth
in Section 7.1 after giving effect to such voluntary Asset Sale or Asset Sales;
and provided further, that all Net Proceeds of any voluntary Asset Sale or Asset
Sales shall either be reinvested pursuant to Section 2.18 or be applied toward
the prepayment of the Loans pursuant to Section 2.7;
(b) Asset Swaps; provided that the System Cash Flow Percentage
of all Systems swapped by the Borrowers and the Restricted Subsidiaries in any
single Asset Swap or series of related Asset Swaps or in the aggregate, after
giving effect to any such Asset Swap or Asset Swaps, shall not exceed 25% of
Annualized Operating Cash Flow for the most recently ended fiscal quarter prior
to such Asset Swap or Asset Swaps and on a combined basis with voluntary Asset
Sales permitted under Section 7.5(a) shall not exceed 35% of Annualized
Operating Cash Flow for the most recently ended fiscal quarter prior to such
Asset Swap or Asset Swaps; and provided further, that (i) if such Asset Swap or
Asset Swaps equals or exceeds $35,000,000, the swapping Borrower, or the
Borrower owning, directly or indirectly, Capital Securities of a swapping
Restricted Subsidiary, shall, at least seven Business Days prior to effecting
any such Asset Swap or Asset Swaps, deliver to the Administrative Agent and the
Lenders a certificate of the Borrowers, executed and delivered on behalf of such
Borrowers by a Responsible Officer, demonstrating to the satisfaction of the
Administrative Agent pro forma compliance with the financial covenants set forth
in Section 7.1 after giving effect to such Asset Swap or Asset Swaps; (ii) all
Net Proceeds of such Asset Swap or Asset Swaps shall either be reinvested
pursuant to Section 2.18 or applied toward the prepayment of the Loans pursuant
to Section 2.7; and (iii) all cash proceeds given by the Borrowers and/or the
Restricted Subsidiaries as a portion of the consideration of such Asset Swap or
Asset Swaps shall not, on a combined basis with Acquisitions (other than the
First Carolina Acquisition) permitted under Section 7.7(a), exceed $130,000,000
in the aggregate;
(c) the sale or other disposition of obsolete or worn out
equipment or equipment no longer used or useful in the business of any Borrower
or any Restricted Subsidiary, in each case, in the ordinary course of business;
(d) the sale of inventory in the ordinary course of business;
(e) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection with the
compromise or collection thereof;
(f) as permitted by Section 7.4(b), subject to compliance
with Sections 6.9(a) and 7.16; and
(g) as approved by the Required Lenders.
7.6 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
Securities (other than Permitted Intercompany Indebtedness) of any Borrower or
of any Restricted Subsidiaries or any warrants or options to purchase any such
Capital Securities, 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 any Borrower or any Restricted Subsidiary, make
any Restricted Investments, or make any payment on or in respect of any
Affiliate Subordinated Indebtedness (all of the foregoing being herein called
"Restricted Payments"), except that:
(a) the Borrowers may, after delivery of the most recent Financial
Statements and Compliance Certificate required by Sections 6.1 and 6.2(b), make
a Restricted Payment to an Affiliate if (i) no Default or Event of Default
exists or would exist as a result thereof, (ii) such Restricted Payment is not
prohibited by the terms of any Affiliate Subordination Agreement, and (iii) (A)
the Senior Funded Debt Ratio for the two then most recently ended fiscal
quarters of the Borrower for which Financial Statements and related Compliance
Certificates have been delivered pursuant to Sections 6.1 and 6.2(b) (I)
immediately prior to making such Restricted Payment is less than 4.75 to 1 for
each such fiscal quarter and (II) after giving pro forma effect to such
Restricted Payment (assuming that Senior Funded Debt increases by the amount of
such Restricted Payment as of the last day of each such fiscal quarter) is less
than 4.75 to 1 for each such fiscal quarter or (B) after giving effect to such
Restricted Payment, the Available Capital Contributions shall be greater than or
equal to zero;
(b) any Restricted Subsidiary may make a Restricted Payment to a Person
only if such Restricted Payment is made subject to the conditions on which, on a
date on which, and in an amount which, any Borrower would have been able to make
a Restricted Payment pursuant to Section 7.6(a). For all purposes of this
Agreement any Restricted Payment made by a Restricted Subsidiary pursuant to
this Section 7.6(b) shall be deemed to have been a Restricted Payment made by a
Borrower;
(c) any Restricted Subsidiary may make a Restricted Payment to any
Borrower or any other Restricted Subsidiary if such Restricted Payment is not
prohibited by the Intercompany Indebtedness Subordination Agreement; and
(d) the Borrowers may make the ACC Distribution on the Closing
Date.
7.7 Limitation on Investments. Make any Investment in
any Person, including, without limitation, any Restricted Investment, except:
(a) So long as no Default exists or would result therefrom,
Acquisitions by any Borrower or any Wholly Owned Restricted Subsidiary of such
Borrower; provided that the aggregate cost or purchase price of such Acquisition
together with all other Acquisitions (other than the First Carolina Acquisition)
and together with the amount of all cash proceeds given by the Borrowers and/or
the Restricted Subsidiaries as a portion of the consideration of any Asset Swap
or Asset Swaps, does not exceed $130,000,000 in the aggregate; provided further,
that (i) if such Acquisition equals or exceeds $35,000,000 (other than the First
Carolina Acquisition), the acquiring Borrower, or the Borrower owning, directly
or indirectly, Capital Securities of an acquiring Restricted Subsidiary, shall,
at least seven Business Days prior to effecting such Investment, deliver to the
Administrative Agent and the Lenders a certificate of such Borrower, executed
and delivered on behalf of such Borrower by a Responsible Officer stating that
no Default or Event of Default exists or will exist after giving effect to such
Acquisition and demonstrating to the satisfaction of the Administrative Agent
pro forma compliance with the financial covenants set forth in Section 7.1 after
giving effect to such Acquisition, (ii) such Borrower shall have furnished the
Administrative Agent and the Lenders with copies of such documents with respect
to the Acquisition as the Administrative Agent or any Lender may reasonably
request, (iii) such Borrower shall comply, and shall cause each of its
Restricted Subsidiaries to comply, with the provisions of Section 6.9 with
respect to any Capital Securities acquired as a result of such Acquisition and
(iv) after giving effect to such Acquisition, such Borrower and its Restricted
Subsidiaries shall be in compliance with Section 7.13;
(b) Subject to compliance with criteria of Section 7.7(a), so
long as no Default or Event of Default exists or would result therefrom,
Acquisitions by any Borrower or any Restricted Subsidiary, the cost or purchase
price of which is paid in whole or in part from the Net Proceeds of any Asset
Sale received by such Borrower or Restricted Subsidiary which a Responsible
Officer has elected to reinvest pursuant to Section 2.18; provided, that (i) if
the Acquisition equals or exceeds $35,000,000, the acquiring Borrower or the
Borrower owning, directly or indirectly, Capital Securities of an acquiring
Restricted Subsidiary, shall, at least seven Business Days prior to making such
Acquisition, deliver to the Administrative Agent and the Lenders a certificate
of such Borrower, executed and delivered on behalf of such Borrower by a
Responsible Officer, stating (A) that no Default or Event of Default exists or
will exist after giving effect to such Acquisition and (B) the amount of the Net
Proceeds required to consummate such Acquisition and demonstrating to the
satisfaction of the Administrative Agent pro forma compliance with the financial
covenants set forth in Section 7.1 after giving effect to such Acquisition; (ii)
such Borrower shall have furnished the Administrative Agent and the Lenders with
copies of such documents with respect to the Acquisition as the Administrative
Agent and/or any Lender may reasonably request; (iii) such Borrower shall
comply, and shall cause each of its Subsidiaries to comply, with the provisions
of Section 6.9 with respect to any Capital Securities acquired as a result of
such Acquisition; (iv) after giving effect to such Acquisition, such Borrower
and its Subsidiaries shall be in compliance with Section 7.13; and (v) any such
Acquisitions are consummated within the twelve month period provided for in
Section 2.18.
(c) Subject to compliance with Sections 6.9(a) and 7.16 (as
applicable), Restricted Investments, after delivery of the most recent Financial
Statements and Compliance Certificate required by Sections 6.1 and 6.2(b), if no
Default exists or would exist as a result thereof and (i) the Senior Funded Debt
Ratio for the two then most recently ended fiscal quarters of the Borrowers for
which Financial Statements and the related Compliance Certificates have been
delivered pursuant to Sections 6.1 and 6.2(b) (A) immediately prior to making
such Restricted Investment is less than 4.75 to 1 for each such fiscal quarter,
and (B) after giving pro forma effect to such Restricted Investment (assuming
that Senior Funded Debt increases by the amount of such Restricted Investment as
of the last day of each such fiscal quarter), is less than 4.75 to 1 for each
such fiscal quarter or (ii) if such Restricted Investment is not made pursuant
to clause (i) above, after giving effect to such Restricted Investment, the
Available Capital Contributions shall be greater than or equal to zero;
provided, however, any Restricted Investments permitted by clause (i) above
shall be made only on or before the forty-fifth day after receipt by the
Administrative Agent and the Lenders of such most recent Financial Statements
and Compliance Certificates;
(d) extensions of trade credit in the ordinary course of
business;
(e) Investments in Cash Equivalents;
(f) loans to officers of any Borrower outstanding on the
date hereof and listed on Schedule 7.7(f);
(g) Investments by any Borrower in its Subsidiaries and by its
Subsidiaries in other Subsidiaries of such Borrower existing on the date hereof
listed on Schedule 7.7(g) and not otherwise listed on Schedule 4.14;
(h) So long as no Default or Event of Default exists or would
result therefrom, (i) Investments after the date hereof by any Borrower in its
Restricted Subsidiaries and by any Borrower in any other Borrower, in each case,
that constitute Permitted Intercompany Indebtedness and (ii) other Investments
by any Borrower in its Restricted Subsidiaries and other Investments by any
Borrower in any other Borrower; provided that, all the Capital Securities of
each such Borrower and Restricted Subsidiary (including any such Capital
Securities owned by Persons other than such Borrower and its other Restricted
Subsidiaries) have been pledged to the Administrative Agent as collateral
security for the Obligations on terms and conditions reasonably satisfactory to
the Administrative Agent; and
(i) Investments of Chelsea in ACC outstanding on the date
hereof and listed on Schedule 7.7(i).
7.8 Limitation on Modifications of Certain Agreements;
Replacement of General Partners. (a) Enter into any management agreement with
any Person other than a Management Agreement with a Manager, without the prior
written consent of the Managing Agents and the Required Lenders (which consent
will not be unreasonably withheld), or (b) amend, modify or change, or consent
or agree to any amendment, modification or change to any of the terms of any
Charter Document or any Management Agreement or (c) change or replace any
Manager, any General Partner, or add any additional general partner, in each
case of (b) and (c) above, without the prior written consent of the Managing
Agents (which shall not be unreasonably withheld).
7.9 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 Restricted Subsidiary's business and
(c) upon fair and reasonable terms no less favorable to such Borrower or such
Restricted 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; provided,
however, the Management Agreements and Management Fees accrued or paid pursuant
to Section 7.15 shall not violate this Section 7.9.
7.10 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by any Borrower or any
Restricted Subsidiary of real or personal property which has been or is to be
sold or transferred by such Borrower or such Restricted 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 Restricted Subsidiary.
7.11 Limitation on Changes in Fiscal Year. Permit the
fiscal year of any Borrower or any Restricted Subsidiary to end on a day other
than March 31.
7.12 Limitation on Negative Pledge Clauses. Enter into any
agreement with any Person, other than (a) this Agreement and (b) any Capital
Lease or any agreement evidencing or creating any purchase money Indebtedness
permitted under Section 7.2(d) (in which case, any prohibition or limitation
shall only be effective against the assets financed thereby), which prohibits or
limits the ability of any Borrower or any Restricted Subsidiary to create,
incur, assume or suffer to exist any Lien upon any of its property or assets (or
any revenues, income or profits therefrom), whether now owned or hereafter
acquired or the ability of any Restricted Subsidiary to make any payments,
directly or indirectly, to any Borrower by way of dividends, advances,
repayments of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on investments, or
any other agreement or arrangement which restricts the ability of any Borrower
or any Restricted Subsidiary to make any payment, directly or indirectly, to any
other Borrower.
7.13 Limitation on Lines of Business; Activities of
Unrestricted Subsidiaries. (a) Enter into any business, either directly or
through any Restricted Subsidiary, except for those businesses in which such
Borrower and its Restricted Subsidiaries are engaged on the date of this
Agreement, or which are directly related thereto, and in which other Persons in
the cable industry are engaged (a "Permitted Line of Business").
(b) Permit any Unrestricted Subsidiary to engage in any
business other than the business of acquiring, owning or disposing of publicly
traded marketable securities or FCC Licenses (other than FCC Licenses used in
connection with the ownership or operation of the Systems of any Borrower and
its Subsidiaries).
7.14 Limitation on Interest Rate Protection Agreements. Enter
into any Interest Rate Protection Agreements other than Interest Rate Protection
Agreements required by Section 6.11, provided that (a) the aggregate notional
amount of all such Interest Rate Protection Agreements shall not exceed at any
time the Total Commitment and (b) such Interest Rate Protection Agreements
shall, except as provided in the Security Documents, be unsecured.
7.15 Limitation on Management Fees. Make any payment on
account of Management Fees, except, (a) if no Default or Event of Default exists
at the time of any such payment or would exist as a result thereof and such
payment is not prohibited by any Management Subordination Agreement, any
Borrower and its Restricted Subsidiaries may, after receipt by the
Administrative Agent and the Lenders of the most recent Financial Statements and
Compliance Certificate required by Sections 6.1 and 6.2(b), (i) pay Management
Fees in arrears with respect to such fiscal quarter in an aggregate amount not
to exceed 5% of the gross revenues from such fiscal quarter of the Borrowers and
Restricted Subsidiaries' on a consolidated and combined basis in accordance with
GAAP as in effect on the date of this Agreement (the Management Fee Cap Amount )
and (ii) pay accrued but unpaid Management Fees (not to exceed the Management
Fee Cap Amount), provided that, after giving effect to such payment, the
Available Capital Contributions as of the day on which the payment is made shall
be greater than or equal to zero and (b) after the occurrence and during the
continuation of an Event of Default (such period, a "Default Period") if such
payment is not prohibited by any Management Subordination Agreement, pay
Management Fees for the most recent fiscal quarter and for any accrued but
unpaid Management Fees, in each case not to exceed the Management Fee Cap
Amount, during the Default Period with the net proceeds of any sale of Capital
Securities of the type described in clause (a) of the definition of "Capital
Securities" to any Affiliate of such Borrower during the Default Period,
provided that, prior to making any such payment, such Borrower shall have given
at least ten days' prior written notice to the Administrative Agent and shall
have delivered evidence reasonably satisfactory to it as to the sale of such
Capital Securities and the net proceeds received in respect thereof and all
Persons receiving any such Capital Securities shall pledge such Capital
Securities to the Lenders as required by Section 7.16.
7.16 Limitation on Disposal of Capital Securities. Directly or
indirectly sell, issue, assign, pledge or otherwise transfer or encumber or
dispose of any Capital Securities in any Borrower or any Subsidiary including
warrants, rights or options to acquire Capital Securities of any Borrower or any
Subsidiary, except any Subsidiary or Borrower may issue Capital Securities,
provided that (a) such issuance will not result in a Borrower Change of Control;
(b) the terms and provisions of such Capital Securities will not conflict with
or result in a violation or Default under any provision of any Loan Document
applicable to such Subsidiary, Borrower or holder of such Capital Securities;
and (c) any Persons receiving Capital Securities of any Borrower or any
Subsidiary must pledge such Capital Securities to the Lenders as collateral
security for the Obligations pursuant to a Stock Pledge Agreement,
simultaneously with the sale, issuance, assignment, pledge or other transfer of
any such Capital Securities.
SECTION 8. EVENTS OF DEFAULT
8.1 Events of Default; Remedies. If any of the following
events shall occur and be continuing:
(a) The Borrowers fail to pay any principal of any Loan or any
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrowers fail to pay any interest on any Loan, or any other Obligation payable
hereunder or under any other Loan Document (other than principal under any
Note), in each case within three Business Days after any such interest or
Obligation becomes due in accordance with the terms hereof or thereof;
(b) Any representation or warranty made or deemed made by any
Borrower or any other Loan Party herein or 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 proves to have been incorrect in any material respect
on or as of the date made or deemed made;
(c) Any Borrower or any other Loan Party defaults in the
observance or performance of Section 6.7(a) or any agreement contained in
Section 7 or fails to give the Administrative Agent thirty days' prior notice of
a change of name, identity or structure to such an extent that any financing
statement filed by the Administrative Agent in connection with any Security
Document would become misleading;
(d) Any Borrower or any other Loan Party defaults 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 thirty
days;
(e) Any Borrower or any of its Restricted Subsidiaries (i)
defaults in any payment of principal of or interest on any Indebtedness (other
than the Loans) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created, if the aggregate amount
of the Indebtedness in respect of which such default or defaults shall have
occurred is singly or in the aggregate at least $10,000,000; or (ii) (A)
defaults in the observance or performance of any other agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (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, with
respect to any such Indebtedness pursuant to a Guaranty, such Guaranty
obligation becomes payable or (B) any event occurs which gives rise to the right
of the holder of any such Indebtedness to require such Borrower or such
Restricted Subsidiary to purchase or to offer to purchase any such Indebtedness;
(f) (i) Any Borrower or any of its Subsidiaries or ACC
commences 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 such Person shall make a general assignment for the benefit of
its creditors; or (ii) there is commenced against any such Person 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
sixty days; or (iii) there is commenced against any such Person 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 sixty days from the entry thereof; or (iv) any such Person takes 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 such Person shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due;
(g) (i) Any Person engages 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, exists 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 occurs with respect to, or
proceedings are commenced 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 incurs, 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 occurs or exists 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;
(h) One or more judgments or decrees are entered against any
Borrower or any of its Restricted Subsidiaries involving, individually or in the
aggregate for all Borrowers and Restricted Subsidiaries, a liability (not paid
or fully covered by insurance) of $10,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending appeal
within thirty days from the entry thereof;
(i) (i) Any Security Document or Subordination Agreement
ceases, for any reason, to be in full force and effect, or any Borrower or any
other Loan Party or any Manager or any Affiliate which is a party to any
Security Document or Subordination Agreement shall so assert or (ii) the Lien
created by any Security Document shall cease to be enforceable and of the same
effect and priority purported to be created thereby;
(j) Any Guaranty Agreement ceases, for any reason, to be
in full force and effect or any Guarantor shall so assert;
(k) Any Borrower Change of Control or any ACC Change of
Control occurs; or
(l) the Manager ceases to manage and supervise the businesses
of any Borrower or any of its Restricted Subsidiaries pursuant to the Management
Agreements and substantially in the manner and to the extent the Manager has
managed and supervised the businesses of such Borrower immediately prior to the
Closing Date;
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 8 with respect to any
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued and unpaid interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents (including without
limitation, all L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented draw requests thereunder)
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 Revolving Credit Lenders holding 51% or more of the Revolving
Credit Facility Percentages, the Administrative Agent may, or upon the request
of the Revolving Credit Lenders holding 51% or more of the Revolving Credit
Facility Percentages, the Administrative Agent shall, by notice to the
Borrowers, declare the Revolving Credit Commitments to be terminated forthwith,
whereupon the Revolving Credit 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 and unpaid interest
thereon) and all other Obligations owing under this Agreement and the other Loan
Documents (including, without limitation, all L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
draw requests thereunder) to be due and payable forthwith, whereupon the same
shall immediately become due and payable. With respect to all outstanding
Letters of Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to this paragraph, the
Borrowers shall at such time deposit in a cash collateral account opened by the
Administrative Agent (and maintained under its sole dominion and control) an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
Obligations of the Borrowers hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied, all Loans shall have been
paid in full and no other Obligations shall be due and payable, the balance, if
any, in such cash collateral account shall be returned to the Borrowers (or such
other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Section 8.1,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
8.2 Application of Proceeds. Notwithstanding Section 2.12,
from and after the Trigger Date, all payments in respect of the Obligations and
all proceeds of any Collateral received by the Administrative Agent shall be
applied by the Administrative Agent to the Obligations, as follows: (a) first,
to pay interest on and the principal of any portion of any Loan which the
Administrative Agent has advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by any Lender or any Borrower;
(b) second, to the reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with the retaking, holding, preparing for
sale or lease, selling or leasing or other disposition of any Collateral,
including, without limitation, all court costs and the reasonable fees and
expenses of its agents and legal counsel;(c) third, to the payment in full of
the Obligations and to make deposits to the cash collateral account opened by
the Administrative Agent pursuant to Section 8.1 or in the event that such
proceeds are insufficient to pay in full the Obligations and to make deposits to
the cash collateral account opened by the Administrative Agent pursuant to
Section 8.1, equally and ratably, in accordance with each Lender s respective
participation in outstanding Letters of Credit and amounts owing to it under or
pursuant to this Agreement (including, without limitation and without
duplication, amounts owing to any Lender in its capacity as an Agent under this
Agreement pursuant to this Agreement or any other Loan Document), or under or
pursuant to any Interest Rate Protection Agreement (as to each Lender, applied
first to fees and expense reimbursements then due to such Lender, then to
interest due to such Lender, then to pay or prepay principal of the Loans owing
to, or to reduce the credit exposure of, such Lender under such Interest Rate
Protection Agreement, as the case may be); (d) fourth, to any Persons entitled
to such amounts pursuant to Section 9-504(a)(c) of the Uniform Commercial Code;
and (e) fifth, to the Borrowers, or their respective successors and assigns, or
as a court of competent jurisdiction may direct, of any surplus then remaining.
For purposes of this Agreement, the credit exposure at any time of any Lender
under an Interest Rate Protection Agreement to which such Lender is a party
shall be determined at such time in accordance with the customary methods of
calculating credit exposure under similar arrangements by the counterparty to
such arrangements, taking into account potential interest rate movements and the
respective termination provisions and notional principal amount and term of such
Interest Rate Protection Agreement. The Borrowers shall remain jointly and
severally liable to the Agents and the Lenders for any deficiency. If the
Administrative Agent has funds available to apply to a portion of, but not all
of, one of the amounts described in clauses (a) through (d) above, then the
Administrative Agent shall apply such funds to the applicable parties in
proportion to the amounts to which such parties would have been entitled if the
entire amount described in any such clause had been available.
SECTION 9. THE ADMINISTRATIVE AGENT
9.1 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. No Agent, in its capacity as
an Agent hereunder, other than the Administrative Agent, has any duties or
responsibilities hereunder or under any other Loan Document.
9.2 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.
9.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by 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.
9.4 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 reasonably 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.
9.5 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 any Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default as shall
be directed by the Required Lenders; provided that (a) 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 and (b) no such direction
could reasonably be expected to result in liability to the Administrative Agent,
or in a violation of applicable law or any Loan Document.
9.6 Non-Reliance on the Agents and Other Lenders. Each Lender
expressly acknowledges that no Agent or 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 any Agent hereinafter taken, including
any review of the affairs of any Borrower, shall be deemed to constitute any
representation or warranty by such Agent to any Lender. Each Lender represents
to such Agent that it has, independently and without reliance upon any 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, 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
any Borrower which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent
in its agency capacity (to the extent not reimbursed by or on behalf of any
Borrower and without limiting the obligation of any Borrower or other Loan Party
to do so), ratably according to their respective Total Facility Percentages in
effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Total Commitment shall have terminated and
the Loans shall have been paid in full, ratably in accordance with their
respective Total Facility 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 any 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 any 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
to the extent they result solely from such Agent's gross negligence or willful
misconduct. The agreements in this Section 9.7 shall survive the payment of the
Loans and all other amounts payable hereunder.
9.8 An Agent in Its Individual Capacity. Each Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Borrower and its Subsidiaries as though such Agent
were not an Agent hereunder or under the other Loan Documents. With respect to
the Loans made by it, such Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the
same as though it were not an Agent, and the terms "Lender" and "Lenders" shall
include such Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon thirty days' notice to the Lenders and
may be removed at any time by the Required Lenders with or without cause. If the
Administrative Agent shall resign or be removed 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, if no Event of Default exists, shall be
approved by the Borrowers (which approval shall not be unreasonably withheld or
delayed) and accepted by such successor Administrative Agent, 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
acceptance, 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 or removal as Administrative Agent, the provisions of this
Section 9 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.
SECTION 10. MISCELLANEOUS
10.1 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
Section 10.1. 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, Reimbursement Obligation or Commitment or of any
installment, prepayment or reduction thereof, or reduce the stated rate of any
interest (other than reducing or waiving the Default Rate in connection with the
cure or waiver of an Event of Default which may be waived by Required Lenders)
or fee payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Commitment of any
Lender, or make any change in the method of application of any payment of the
Loans or the fees specified in Section 2.12, or amend Section 8.2 or Section
10.7(a), or impose any additional monetary obligations on the Lenders, in each
case without the consent of each Lender, or (ii) amend, modify or waive Section
2.7(c), (d), (e) or (f), any provision of this Section 10.1 or change the
requirement specified in any provision herein for any consent or approval or the
definition of Required Lenders, or consent to the assignment or transfer by any
Loan Party of any of its rights and obligations under this Agreement and the
other Loan Documents or release any Borrower from its obligations hereunder or,
subject to Section 10.16, release any of the Collateral or reduce or limit the
obligations of any Guarantor under any Guaranty Agreement or, subject to Section
10.16, release any Guarantor under any Guaranty Agreement or waive any Default
or Event of Default under Section 8.1(a) or (b) or amend or modify the
definition of Subordinated Indebtedness or the subordination provisions
contained in any Subordination Agreement, in each case without the written
consent of each Lender, or (iii) reduce the amount of any mandatory prepayment
of any Loan or waive or extend the date of any mandatory prepayment of any Loan
or waive any Commitment reduction, without the written consent of all Lenders,
or (iv) amend or waive any provision of Section 2.7(f) (other than as
contemplated by Section 8.2) or Section 5 without the written consent of all
Lenders, or (v) amend, modify or waive any provision of Section 9 without the
written consent of the then Administrative Agent or any other Agent affected
thereby. 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 the other Agents and all
future holders of the Loans. In the case of any waiver, the Borrowers, the
Lenders and the Agents 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.
10.2 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
Annex A 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 Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin Higgin, Esq.
Telephone: (814) 274-6446
Telecopy: (814) 274-6586
with a copy to: Buchanan Ingersoll
Professional Corporation
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, Pennsylvania 15219
Attention: Paula Zawadzki
Telephone: (412) 562-8911
Telecopy: (412) 562-1041
The Administrative
Agent: Toronto Dominion (Texas), Inc.
909 Fannin, Suite 1700
Houston, TX 77010
Attention: Sophia Sgrabi
Telephone: (713) 653-8325
Telecopy: (713) 951-9921
with a copy to: Toronto Dominion Bank
31 West 52nd Street, 20th Floor
New York, NY 10019
Attention: Jessica Laxman
Telephone: (212) 468-0719
Telecopy: (212) 262-1928
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2 shall not be effective until received.
10.3 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 any Requirement of Law.
10.4 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,
the making of the Loans and the issuance of Letters of Credit hereunder.
10.5 Payment of Expenses and Taxes. The Borrowers jointly and
severally agree (a) to pay or reimburse the Documentation Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and to pay or
reimburse each of the Administrative Agent and the Documentation 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 and the Documentation
Agent, (b) to pay or reimburse each of the Lenders and the Administrative Agent
for all its reasonable costs and expenses incurred in connection with any
work-out or restructuring of the Obligations (whether or not ultimately
consummated) and the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, the reasonable fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to the Administrative Agent and the Documentation 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, (d) (i) to pay, indemnify, and hold the
Lenders and the Agents, and their respective directors, officers, employees and
agents, harmless from and against any and all other liabilities, obligations,
losses, damages, claims, penalties, actions, judgments, suits, proceedings,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against such Person (including, without
limitation, the reasonable fees charged and disbursements made by counsel to
such Person, whether or not suit is brought) or to which such Person may become
subject arising out of or in connection with or in any way relating to or
resulting from any actual or threatened Litigation relating to this Agreement
(including the use of the proceeds of the Loans), the other Loan Documents or
any transaction contemplated by any of the foregoing, whether or not such Person
is a party thereto, whether direct or indirect, whether based on any federal,
state or local law or regulation, securities or commercial law or regulation or
under common law or in equity or on contract, tort or otherwise, 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 any Borrower, any of its Subsidiaries or any of the Properties,
and (ii) to reimburse each such Person, on demand, for all reasonable
out-of-pocket costs and expenses (including, without limitation, the reasonable
fees and disbursements of counsel) incurred in connection with any of the
foregoing, including, without limitation, costs and expenses incurred in
connection with investigating, defending or participating in any legal
proceeding relating to any of the foregoing (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"); provided that no Borrower
shall have any obligation hereunder to any such Person with respect to
indemnified liabilities arising solely from (i) the gross negligence or willful
misconduct of such Person or (ii) legal proceedings commenced against such 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. No Borrower shall make any claim against any such Person for
any special, indirect or punitive damages in respect of any breach or wrongful
conduct (whether the claim therefor is based on contract, tort or duty imposed
by law) in connection with, arising out of or in any way related to the
transactions contemplated by, and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith. The
agreements in this Section 10.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Agents 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 business and
in accordance with applicable law, at any time sell to one or more banks or
other Persons ("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 set-off 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 Section 10.7(a) as fully as if it were a Lender
hereunder. The Borrowers also agree that each Participant shall be entitled to
the benefits of Sections 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 were a
Lender; provided that, in the case of Section 2.15, such Participant shall have
complied with the requirements of said Section; and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to any such
Section 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 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 Administrative
Agent and the Borrowers (which in each case shall not be unreasonably withheld
or delayed), to any other Eligible Assignee all or any part of its rights and
obligations under this Agreement and the other Loan Documents pursuant to an
Assignment and Acceptance executed by such Eligible Assignee, such assigning
Lender (and, in the case of an Eligible 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 Eligible Assignee that
is not a Lender or an Affiliate of a Lender, 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 (provided, that in any
event such $5,000,000 minimum shall not be required for an assignment of a
Lender's then remaining Loans and Commitments). Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (i) the Eligible 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 (ii) 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 Section 10.6(c) and Section 10.6(e), the
consent of the Borrowers shall not be required, and, unless requested by the
Eligible Assignee 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 Event of Default shall have occurred and be continuing. Each
Lender party to this Agreement on the Closing Date hereby represents, and each
Person that becomes a Lender pursuant to any Assignment and Acceptance will
represent, that it is in fact, otherwise than by reason of being a Lender, an
Eligible Assignee and will make or acquire Loans hereunder for its own account
in the ordinary course of its business.
(d) The Administrative Agent, on behalf of the Borrowers,
shall maintain at the address of the Administrative Agent referred to in Section
10.2 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 Borrowers, 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 any Borrower 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 Eligible Assignee (and, in the case of an Eligible
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)
within five Business Days after receipt thereof 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 Eligible Assignee (each, a "Transferee") and any prospective
Transferee, which has agreed to be bound by the same standards of
confidentiality by which the Lenders have agreed to be bound, any and all
financial information in such Lender's possession concerning any Borrower and
its Subsidiaries and Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of such Borrower in connection with such Lender's
credit evaluation of such Borrower and its 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 Section 10.6 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.
10.7 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
Letter of Credit participations, 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 8.1(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 Letter of Credit participations, 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 Loans or Letter of Credit participations, 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, after the occurrence of an
Event of Default and until such Event of Default has been cured to the
satisfaction of or waived by the requisite Lenders, without prior notice to any
Borrower, any such notice being expressly waived by each Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrowers 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 such 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.
10.8 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.
10.9 Severability; Limitation on Agreements. (a) 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.
(b) It is the express intent of the parties to this Agreement
that the Borrowers not pay and no Agents or Lenders charge or receive, directly
or indirectly in any manner whatsoever, interest in excess of that which may
legally be paid to such Agent or Lender under applicable Requirements of Law. In
no event shall the amount of interest due or payable hereunder to any Agent or
any Lender or under any Lender's Note or other Loan Document exceed the Highest
Lawful Rate. In the event any payment of interest in excess of the Highest
Lawful Rate is inadvertently made by any Borrower or inadvertently received by
any Lender or any Agent, then such excess shall be applied to the reduction of
the principal amount owing on account of such Lender's Note or the amounts owing
on other Obligations of the Borrowers to such Agent or such Lender under any
Loan Document and not to the payment of interest; provided, however, if such
excessive interest exceeds the unpaid principal balance of any Note and the
amounts owing on other obligations of the Borrowers to such Agent or such Lender
under any Loan Document, as the case may be, such excess shall be refunded to
the Borrowers. All sums paid or agreed to be paid to any Agent or any Lender in
connection with the use, forbearance or detention of the Loans made under this
Agreement shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of the Loans until
payment in full of the principal thereof (including the period of any renewal or
extension thereof) so that the interest on account of the Loans shall not exceed
the Highest Lawful Rate. Notwithstanding anything to the contrary contained in
any Loan Document, it is understood and agreed that if at any time the rate of
interest which accrues on the outstanding principal balance of any Note shall
exceed the Highest Lawful Rate, the rate of interest which accrues on the
outstanding principal balance of such Note shall be limited to the Highest
Lawful Rate, but any subsequent reductions in the rate of interest which accrues
on the outstanding principal balance of such Note shall not reduce the rate of
interest which accrues on the outstanding principal balance of such Note below
the Highest Lawful Rate until the total amount of interest accrued on the
outstanding principal balance of such Note equals the amount of interest which
would have accrued if such interest rate had at all times been in effect. The
terms and provisions of this Section 10.9(b) shall control and supersede every
other provision of the Loan Documents.
10.10 Integration. This Agreement and the other Loan Documents
represent the final agreement of the Borrowers, the Agents and the Lenders as of
the date hereof with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by any Agent or any Lender
relative to the subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11 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, WITHOUT GIVING
EFFECT TO ITS CONFLICT OF LAW PRINCIPLES.
10.12 Submission To Jurisdiction; Waivers. Each Borrower
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 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) 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
Borrowers at their respective addresses set forth in Section 10.2 or at such
other address of which the Administrative Agent shall have been notified
pursuant thereto;
(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; and
(e) waives, to the maximum extent permitted by applicable
Requirement of Law any right it may have to claim or recover in any legal action
or proceeding referred to in this Section any special, exemplary or punitive
damages.
10.13 Acknowledgments. Each Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) no Agent or any Lender has any fiduciary relationship with
or duty to the Borrower arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the Agents and
Lenders, on one hand, and the Borrowers, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor;
(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 Agents, among the Lenders, among the Borrowers and the Lender or among
the Borrowers and the Agents; and
(d) the obligations of the Borrowers to make payment in full
of all Obligations owing hereunder from time to time pursuant to and in
accordance with the terms of this Agreement are joint and several, and the
failure of any Borrower to make any payment (or any prepayment) on any
Obligation as and when the same is due pursuant to and in accordance with this
Agreement shall not relieve any other Borrower of its obligation hereunder to
make such payment (or prepayment) on the date when due.
10.14 WAIVER OF JURY TRIAL. EACH BORROWER, EACH AGENT AND EACH
LENDER HEREBY, KNOWINGLY AND INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY,
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.15 Authority of General Partners. The General Partners
shall have the right to execute and deliver Loan Documents on behalf of the Loan
Parties of which they are a General Partner and take any other action on behalf
of such Loan Parties under this Agreement until, subject to Section 7.8, a new
general partner is admitted under the applicable partnership agreement of such
Loan Party, and the Administrative Agent and the Lenders shall be under no
obligation to make any inquiry respecting such authority.
10.16 Release. The Administrative Agent is hereby authorized
by the Lenders to, and shall, release Liens, any party to a Guaranty Agreement
and any other guarantees and take such other actions as any Borrower may
reasonably request in connection with any Asset Sale or Asset Swap permitted
under this Agreement and involving any asset subject to any such Lien or any
other disposition of property or assets permitted under this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
<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.
BORROWERS:
CHELSEA COMMUNICATIONS, INC.
By:
Name:
Title:
NORTHEAST CABLE, INC.
By:
Name:
Title:
KITTANNING CABLEVISION, INC.
By:
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: Kittanning Cablevision, Inc.,
its General Partner
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
as Managing Agent and
Administrative Agent
By:
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as Managing Agent and Documentation
Agent
By:
Name:
Title:
CHEMICAL BANK,
as Managing Agent and Syndication
Agent
By:
Name:
Title:
THE BANK OF NOVA SCOTIA,
as Managing Agent
By:
Name:
Title:
<PAGE>
CIBC INC.,
as Managing Agent
By:
Name:
Title:
SOCIETE GENERALE
By:
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
<PAGE>
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
Name:
Title:
FLEET NATIONAL BANK
By:
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
Name:
Title:
<PAGE>
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By:
Name:
Title:
BANK OF MONTREAL, CHICAGO BRANCH
By:
Name:
Title:
CHL HIGH YIELD LOAN PORTFOLIO
By:
Name:
Title:
NATWEST BANK N.A.
By:
Name:
Title:
<PAGE>
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By:
Name:
Title:
THOROUGHBRED LIMITED PARTNERSHIP I
By:
Name:
Title:
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By:
Name:
Title:
UNION BANK OF CALIFORNIA
By:
Name:
Title:
<PAGE>
PROTECTIVE LIFE INSURANCE COMPANY
By:
Name:
Title:
THE SUMITOMO BANK, LTD. - CHICAGO
BRANCH
By:
Name:
Title:
CRESTAR BANK
By:
Name:
Title:
THE NIPPON CREDIT BANK LTD.
By:
Name:
Title:
<PAGE>
THE SAKURA BANK, LIMITED
By:
Name:
Title:
BANK OF AMERICA ILLINOIS
By:
Name:
Title:
ABN AMRO BANK N.V., PITTSBURGH BRANCH
By: ABN AMRO North America, Inc., its agent
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
EXHIBIT A-1
AFFILIATE SUBORDINATION AGREEMENT
AFFILIATE SUBORDINATION AGREEMENT dated as of April ___, 1996
(as amended, supplemented and otherwise modified from time to time, this
"Agreement"), among CHELSEA COMMUNICATIONS, INC., a Delaware corporation,
NORTHEAST CABLE, INC., a Delaware corporation, KITTANNING CABLEVISION, INC., a
Delaware corporation and ROBINSON/PLUM CABLEVISION, L.P., a Pennsylvania limited
partnership (collectively, the "Borrowers"), each Restricted Subsidiary of each
Borrower from time to time party hereto (together with the Borrowers, the
"Affiliate Borrowers"), each Affiliate of each Borrower and Restricted
Subsidiary (other than any other Borrower or any other Restricted Subsidiary)
from time to time party hereto (collectively, the "Subordinated Affiliate
Lenders"), and TORONTO DOMINION (TEXAS), INC., as Administrative Agent (in such
capacity, the "Administrative Agent") for the Lenders from time to time parties
to the Credit Agreement, dated of even date herewith, among the Borrowers, such
Lenders, the Agents identified therein and Toronto Dominion (Texas), Inc., as
Administrative Agent (as amended, supplemented and otherwise modified from time
to time, the "Credit Agreement").
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 and to issue Letters of Credit
upon the terms and subject to the conditions set forth therein; and
WHEREAS, pursuant to Section 7.2(f) of the Credit Agreement,
the Affiliate Borrowers may collectively borrow up to an aggregate amount of
[$100,000,000] (including principal and accrued and unpaid interest thereon) at
any time outstanding from the Subordinated Affiliate Lenders; and
WHEREAS, it is a condition precedent to the right of the
Affiliate Borrowers to borrow from the Subordinated Affiliate Lenders that (i)
each Borrower and each Restricted Subsidiary which makes any such borrowing
shall be or become a party to this Agreement in the manner provided for herein
and (ii) each Affiliate of each Borrower and each Restricted Subsidiary (other
than any other Borrower or any other Restricted Subsidiary) from which any such
borrowing is made shall have become a party to this Agreement in the manner
provided for herein;
NOW, THEREFORE, for and in consideration of the premises and
to induce the Agents and the Lenders to permit such borrowings, each Affiliate
Borrower and each Subordinated Affiliate Lender hereby agrees with the
Administrative Agent, for the benefit of the Lenders and the other Agents, 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. For purposes of this Agreement, the term "Lender"
shall include any Affiliate of any Lender which has entered into an Interest
Rate Protection Agreement with any Borrower, and the term "Loan Documents" shall
include any Interest Rate Protection Agreement between any Lender (including any
such Affiliate of a Lender) and any Borrower.
(b) For purposes of this Agreement, the following terms
shall have the following meanings:
"Obligations": the Obligations (as defined in the Credit Agreement).
"Reorganization": with respect to any Affiliate Borrower, any
distribution of the assets of such Affiliate Borrower 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 Affiliate Borrower or the
readjustment of its liabilities or any assignment for the benefit of creditors
or any marshalling of its assets or liabilities.
"Senior Indebtedness": (a) the Obligations, and (b) all renewals,
refundings, restructurings and other refinancings thereof, including increases
in the amount thereof.
"Subordinated Indebtedness": the principal of, and interest on, all
loans, advances and other extensions of credit from time to time made by any
Subordinated Affiliate Lender to any Affiliate Borrower and any and all other
amounts payable in connection therewith, whether on account of fees,
indemnities, costs, expenses or otherwise.
(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.
2. Agreement to Subordinate. Each Affiliate Borrower, for
itself and its successors and assigns, covenants and agrees, and each of the
Subordinated Affiliate Lenders, as a holder of Subordinated Indebtedness, hereby
agrees, for itself and its successors and assigns, 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 holder of any
part of the Subordinated Indebtedness shall have any claim to the assets of any
Affiliate Borrower on a parity with or prior to the claim of any holder of the
Senior Indebtedness, whether such claim be made in connection with a
Reorganization or otherwise. Unless and until the Senior Indebtedness shall have
been paid in full in cash, and the Commitments, all Letters of Credit, the
Credit Agreement and the other Loan Documents shall have been terminated, no
Subordinated Affiliate Lender will take, retain, permit to exist, demand or
receive from any Affiliate Borrower, and no Affiliate 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, (ii) any security or collateral for the whole or any part of the
Subordinated Indebtedness or (iii) any guaranty of the whole or any part of the
Subordinated Indebtedness; provided, that the Affiliate Borrowers may make and
the Subordinated Affiliate Lenders may receive payments on the Subordinated
Indebtedness in accordance with the terms thereof so long as (A) no Default or
Event of Default shall have occurred and then be continuing or would occur as a
result of, or after giving effect to, any such payment, (B) the rate of interest
applicable to such Subordinated Indebtedness does not exceed 10% per annum and
(C) no such payment would violate Section 5 hereof or Section 7.6 of the Credit
Agreement. Each Affiliate Borrower 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 the Credit Agreement or 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 and
the Agents shall have indefeasibly received payment in full of the principal of,
interest on and costs and expenses and any and all other amounts payable in
connection with the Senior Indebtedness in cash and the Commitments, all Letters
of Credit, the Credit Agreement and the other Loan Documents shall have been
terminated. The subordination provisions in this Agreement are for the benefit
of and shall be enforceable directly by the Lenders and the Agents and each
Lender and each Agent 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 and the other Agents pursuant to this Agreement
in enforcing the rights of the Lenders and the other Agents, 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 Subordinated Affiliate Lender shall have
received any payment or distribution with respect to 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 such Subordinated Affiliate Lender
to the Administrative Agent to be used to prepay the Loans outstanding under the
Credit Agreement as provided in Section 2.12 or 8.2, as applicable, of the
Credit Agreement.
4. Limitations on Subordinated Indebtedness. The Subordinated
Affiliate Lenders agree that the Subordinated Indebtedness shall be unsecured,
and that, so long as any of the Senior Indebtedness shall remain unpaid in cash
or the Commitments, all Letters of Credit, the Credit Agreement and the other
Loan Documents shall not have been terminated, if at any time any Subordinated
Affiliate Lender shall be in possession of any Collateral, such Subordinated
Affiliate Lender shall promptly deliver such Collateral to the Administrative
Agent and until such delivery shall hold such Collateral in trust for the
Lenders and the Agents. Until such time as the Senior Indebtedness has been paid
in full in cash and the Commitments, all Letters of Credit, the Credit Agreement
and the other Loan Documents shall have been terminated, the Subordinated
Affiliate Lenders agree not to exercise any of their respective rights under any
document, instrument or agreement, or to accelerate, sue for or collect the
obligations of any of the Affiliated Borrowers, or to realize upon any of the
Collateral or any other assets of any of the Affiliated Borrowers or to attach,
levy upon or execute against any of the Collateral or any other assets of any of
the Affiliated Borrowers; provided however, that the Subordinated Affiliate
Lenders shall be entitled to the payments provided for in Section 3 so long as
the conditions to such payments set forth in Section 3 have been satisfied.
5. Subordinated Indebtedness Subordinated to Prior Payment of
All Senior Indebtedness on Reorganization; Sale of the Affiliate Borrowers; Etc.
Upon any payment or distribution of all or any of the assets or securities of
any Affiliate Borrower of any kind or character, whether in cash, property or
securities, whether made pursuant to a Reorganization relative to such Affiliate
Borrower or any of its properties, or a distribution of proceeds of or upon sale
of all or any part of such Affiliate Borrower or any of its subsidiaries or any
of their respective assets, other than as permitted by Section 7.5 of the Credit
Agreement, then in such event:
(a) the Lenders and the Agents shall be entitled to receive payment in
full in cash 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 Affiliate 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 Affiliate 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 and the Agents, 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 in cash, after giving effect to any concurrent
payment or distribution to the Lenders or the Agents; and
(c) in the event that, notwithstanding the foregoing provisions of this
Section 5, any holder of Subordinated Indebtedness shall have received any
payment or distribution with respect to Subordinated Indebtedness contrary to
the foregoing provisions of this Section 5, 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 and the Agents 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 or
the Agents.
In the event of a Reorganization, if any Subordinated
Affiliate Lender has not filed any claim, proof of claim or other instrument of
similar character with respect to the Subordinated Indebtedness of such
Subordinated Affiliate Lender within 20 days before the expiration of the time
to file the same, the Administrative Agent, any other Agent or any Lender may,
as an attorney-in-fact for such Subordinated Affiliate Lender, file, any claim,
proof of claim or other instrument of similar character on behalf of such
Subordinated Affiliate Lender, and such Subordinated Affiliate Lender hereby
appoints the Administrative Agent, any such other Agent and any such Lender as
an attorney-in-fact for such Subordinated Affiliate Lender, to so file any
claim, proof of claim or such other instrument of similar character. Each
Subordinated Affiliate Lender ratifies all that the Administrative Agent, any
such other Agent and any such Lender, as said attorney-in-fact, shall lawfully
do or cause to be done by virtue hereof and not in contravention of the terms
hereof. The power of attorney granted in this Section 5 is a power coupled with
an interest and shall be irrevocable.
Upon any distribution of assets of any Affiliate Borrower
referred to in this Agreement, the Subordinated Affiliate Lenders 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 and the Agents, 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 and the Agents to receive payment in full
of the Senior Indebtedness in accordance with this Agreement.
6. Holders of Subordinated Indebtedness to be Subrogated to
Rights of Holders of Senior Indebtedness. Subject to the payment in full in cash
of all Senior Indebtedness, the holders of Subordinated Indebtedness shall be
subrogated to the rights of the Lenders and the Agents to receive payments or
distributions of assets of the Affiliate 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 and the Agents of assets, whether in
cash, property or securities, distributable to the Lenders and the Agents under
the provisions hereof to which the holders of the Subordinated Indebtedness
would be entitled except for the provisions of this Agreement, and no payment
pursuant to the provisions of this Agreement to the Lenders and the Agents by
the holders of the Subordinated Indebtedness shall, as between the relevant
Affiliate Borrower, its creditors other than the Lenders and the Agents, and the
holders of the Subordinated Indebtedness, be deemed to be a payment by such
Affiliate 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 of the
Subordinated Indebtedness, on the one hand, and the Lenders and the Agents, on
the other hand.
7. Obligations of the Affiliate Borrowers Unconditional. (a)
Nothing contained in this Agreement is intended to or shall relieve the
obligations of the Affiliate Borrowers to the Lenders or the Agents or the
holders of Subordinated Indebtedness to pay any amount in respect of the Senior
Indebtedness or such Subordinated Indebtedness (subject to the terms hereof), 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 Agents or the holders of Subordinated Indebtedness, on the one
hand, and the other creditors of the Affiliate Borrowers, on the other hand. All
rights and interests of the Lenders and the Agents hereunder, and all agreements
and obligations of the Affiliate Borrowers and the Subordinated Affiliate
Lenders, shall remain in full force and effect irrespective of, and each
Affiliate Borrower and each Subordinated Affiliate Lender hereby irrevocably
waives any defenses it may now or hereafter have in any way relating to:
(i) any lack of validity or enforceability of any Loan Document
r any other agreement or instrument relating thereto;
(ii) any change in the amount, 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, the Affiliate Borrowers in respect of the
Senior Indebtedness, or of the Affiliate Borrowers or the Subordinated Affiliate
Lenders in respect of this Agreement.
(b) Nothing contained in this Agreement shall affect the
obligation of the Affiliate Borrowers to make, or prevent the Affiliate
Borrowers 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 2, 3, 4 and 5, affect the obligation of the Affiliate
Borrowers to make, or prevent the Affiliate Borrowers from making, at any time,
payment of any amount in respect of Subordinated Indebtedness.
8. 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 Affiliate
Borrower. No Affiliate Borrower will publish or give to any creditor or
prospective creditor of such Affiliate 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 of Subordinated
Indebtedness 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 Affiliate Borrower or such Affiliate Borrower, provided,
however, that nothing contained in this Section 8 is intended to restrict the
right or obligation of any Affiliate Borrower to make filings or registrations
pursuant to any Requirement of Law.
9. 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 Affiliate 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.
10. Legend. The Affiliate Borrowers and the Subordinated
Affiliate Lenders shall cause each note representing or evidencing Subordinated
Indebtedness to have affixed upon it a legend, including in connection with the
issuance of any new or replacement note with respect to the transfer of such
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 April __, 1996, among Chelsea Communications, Inc., a Delaware
corporation, Northeast Cable, Inc., a Delaware corporation, Kittanning
Cablevision, Inc., a Delaware corporation and Robinson/Plum Cablevision, L.P., a
Pennsylvania limited partnership (the "Borrowers"), each Restricted Subsidiary
of each Borrower from time to time party thereto, each Affiliate of each
Borrower and its Restricted Subsidiaries (other than any other Borrower or any
other Restricted Subsidiary) from time to time party thereto, and Toronto
Dominion (Texas), Inc., as Administrative Agent (in such capacity, the
"Administrative Agent"), for the Lenders from time to time parties to the Credit
Agreement, dated of even date with the Affiliate Subordination Agreement, among
the Borrowers, such Lenders, the Agents identified therein and Toronto Dominion
(Texas), Inc., as Administrative Agent."
11. Representations and Warranties. Each Subordinated
Affiliate Lender hereby represents and warrants that:
(i) such Subordinated Affiliate Lender 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 Subordinated Affiliate Lender enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law);
(iii) the execution, delivery and performance of this Agreement will
not violate any provision of any Requirement of Law or Contractual Obligation of
such Subordinated Affiliate Lender;
(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 Subordinated Affiliate Lender) is required in connection with the
execution, delivery, performance, validity or enforceability of this Agreement;
(v) no Litigation is pending or, to the knowledge of such Subordinated
Affiliate Lender, threatened by or against such Subordinated Affiliate Lender
with respect to this Agreement;
(vi) the agreements governing the Subordinated Indebtedness of such
Subordinated Affiliate Lender do not and will not contain (A) any default which
is triggered by (I) a default under any other agreements to which any Affiliate
Borrower is a party or (II) any other Indebtedness of any Affiliate Borrower
being declared due and payable prior to its stated maturity, or the ability of
the holder of any other Indebtedness of any Affiliate Borrower to declare such
Indebtedness due and payable prior to its stated maturity or (B) without
limiting clause (A) above, any covenants or events of default which are more
restrictive than those contained in the Credit Agreement; and
(vii)such Subordinated Affiliate Lender is an Affiliate of the Borrower.
12. Successors; Continuing Effect. This Agreement is being
entered into for the benefit of, and shall be binding upon, the Lenders, the
Agents and the Subordinated Affiliate Lenders, and their respective successors
and assigns, including subsequent holders of Senior Indebtedness and the
Subordinated Indebtedness, and the term "holders of Senior Indebtedness" shall
include any such subsequent or additional holder of Senior Indebtedness, and the
term "Subordinated Affiliate Lenders" shall include any such subsequent or
additional holder of Subordinated Affiliate Indebtedness, wherever the context
permits, provided that no Subordinated Affiliate Lender shall transfer or assign
any of its rights with respect to Subordinated Indebtedness to any Person other
than another Affiliate of any Borrower which has executed a Supplement in the
form of Exhibit B hereto agreeing to be bound by the terms of this Agreement.
13. Further Assurances. Each Affiliate Borrower and each
Subordinated Affiliate Lender 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, the Lenders and the other Agents to exercise and enforce
their rights and remedies hereunder.
14. Expenses. Each of the Borrowers jointly and severally
agree 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 Agents and the
Lenders may incur in connection with the exercise or enforcement of any of their
rights or interests under this Agreement.
15. Notices; Amendments; etc. (a) All notices, requests and
demands to or upon the Administrative Agent, any Affiliate Borrower or any
Subordinated Affiliate Lender 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 or any Borrower, at its address
or transmission number for notices provided in Section 10.2 of the Credit
Agreement;
(ii) if to any Lender or to any Agent other than the Administrative
Agent, at its address or transmission number for notices provided in Annex A to
the Credit Agreement, as supplemented from time to time pursuant to assignments
in accordance with Section 10.6 of the Credit Agreement; and
(iii) if to any other Affiliate Borrower or any Subordinated Affiliate
Lender, at its address or transmission number for notices set forth under its
signature below.
The Administrative Agent, each Lender, each other Agent, each
Affiliate Borrower and each Subordinated Affiliate Lender may change its address
and transmission numbers for notices by notice in the manner provided in this
Section.
(b) Subject to Section 10.1 of the Credit Agreement, this
Agreement may be amended and the terms hereof may be waived only with the
written consent of the Administrative Agent, each Affiliate Borrower and the
holders of a majority of the principal amount of the Subordinated Indebtedness
then outstanding; provided that any provision of this Agreement may be waived by
the Administrative Agent in a letter or agreement executed by the Administrative
Agent or by facsimile transmission from the Administrative Agent. Any such
amendment or waiver shall be binding upon the Lenders, the Agents, the Affiliate
Borrowers and all the holders of Subordinated Indebtedness.
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 Affiliate Borrower
and each Subordinated Affiliate Lender 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 it at its address set
forth under its signature below or at such other address of which the
Administrative Agent shall have been notified pursuant to Section 15;
(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; 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 Section any special, exemplary or punitive damages.
18. WAIVER OF JURY TRIAL. EACH AFFILIATE BORROWER, EACH
SUBORDINATED AFFILIATE LENDER AND THE ADMINISTRATIVE AGENT HEREBY KNOWINGLY AND
INTENTIONALLY, 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.
19. 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 LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICT OF LAW PRINCIPLES.
20. Counterparts. This Agreement may be executed by one
or more of the parties hereto on any number of counterparts (including by
telecopy transmission), and all such counterparts taken together shall
constitute one and the same instrument.
21. Integration. This Agreement and the other Loan Documents
represent the final agreement of the parties hereto with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by any Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
22. Addition of Affiliate Borrowers and Subordinated Affiliate
Lenders. Any Restricted Subsidiary of any Borrower may become an "Affiliate
Borrower" 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 Affiliate of any Borrower or Restricted Subsidiary (other than any other
Borrower or any other Restricted Subsidiary) may become a "Subordinated
Affiliate Lender" under this Agreement by executing and delivering to the
Administrative Agent a Supplement to this Agreement in the form attached hereto
as Exhibit B.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Affiliate
Subordination Agreement to be duly executed and delivered by their duly
authorized officers on the date and year first above written.
AFFILIATE BORROWERS:
CHELSEA COMMUNICATIONS, INC.
By:
Name:
Title:
NORTHEAST CABLE, INC.
By:
Name:
Title:
KITTANNING CABLEVISION, INC.
By:
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: Kittanning Cablevision, Inc.,
its General Partner
By:
Name:
Title:
AFFILIATE BORROWERS:
AURORA CABLE VISION, INC.,
BETTER TV, INC. OF BENNINGTON,
CAMPBELL COMMUNICATIONS, INC.,
CHAUTAUQUA COUNTY CABLE VISION, INC.,
HARBOR VUE CABLE TV, INC.,
HOOSICK CABLEVISION, INC.,
KALAMAZOO COUNTY CABLEVISION, INC.,
MASS. CABLEVISION, INC.,
MT. LEBANON CABLEVISION, INC.,
MULTI-CHANNEL T.V. CABLE COMPANY,
PERICLES COMMUNICATIONS CORPORATION,
RIGPAL COMMUNICATIONS, INC.,
SOUTH SHORE CABLEVISION, INC.,
UPPER ST. CLAIR CABLEVISION, INC.,
VERMILION CABLE COMMUNICATIONS, INC.,
MOUNTAIN CABLE COMMUNICATIONS
CORPORATION
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
<PAGE>
ADELPHIA CABLEVISION ASSOCIATES, L.P.
By: CHELSEA COMMUNICATIONS, INC.,
its General Partner
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
MOUNTAIN CABLE COMPANY
By: PERICLES COMMUNICATIONS
CORPORATION, its Managing General Partner
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
THREE RIVERS CABLE ASSOCIATES, L.P.
By: MT. LEBANON CABLEVISION, INC.,
its General Partner
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
ADMINISTRATIVE AGENT:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
Name:
Title:
<PAGE>
SUBORDINATED AFFILIATE LENDERS:
ADELPHIA COMMUNICATIONS
CORPORATION
By:
Name:
Title:
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telepcopy: (814) 274-8631
HIGHLAND VIDEO ASSOCIATES, L.P.
By: ,
its
By:
Name:
Title:
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telepcopy: (814) 274-8631
SYRACUSE HILTON HEAD HOLDINGS,
L.P.
By:
its
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telepcopy: (814) 274-8631
OLYMPUS COMMUNICATIONS, L.P.
By:
its
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telepcopy: (814) 274-8631
<PAGE>
EXHIBIT A
SUPPLEMENT TO
AFFILIATE SUBORDINATION AGREEMENT
SUPPLEMENT, dated as of , 19__, to the Affiliate Subordination
Agreement, dated as of April ___, 1996 (as amended, supplemented and otherwise
modified from time to time, the "Agreement"), among Chelsea Communications,
Inc., a Delaware corporation, Northeast Cable, Inc., a Delaware corporation,
Kittanning Cablevision, Inc., a Delaware corporation and Robinson/Plum
Cablevision, L.P., a Pennsylvania limited partnership (collectively, the
"Borrowers"), each Restricted Subsidiary of each Borrower from time to time
party hereto (together with the Borrowers, the "Affiliate Borrowers"), each
Affiliate of each Borrower and Restricted Subsidiary (other than any other
Borrower or any other Restricted Subsidiary) from time to time party hereto
(collectively, the "Subordinated Affiliate Lenders"), and Toronto Dominion
(Texas), Inc., as Administrative Agent (in such capacity, the "Administrative
Agent") for the Lenders from time to time parties to the Credit Agreement, dated
of even date herewith, among the Borrowers, such Lenders, the Agents identified
therein and Toronto Dominion (Texas), Inc., as Administrative Agent (as amended,
supplemented and otherwise modified from time to time, the "Credit Agreement").
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 and to issue Letters of Credit (as defined in the Credit Agreement)
upon the terms and subject to the conditions set forth therein; and
WHEREAS, pursuant to Section 7.2(f) of the Credit Agreement,
the Affiliate Borrowers may borrow up to an aggregate amount of [$100,000,000]
(including principal and accrued and unpaid interest thereon) at any one time
outstanding from the Subordinated Affiliate Lenders;
WHEREAS, it is a condition precedent to the right of the
Affiliate Borrowers to borrow from the Subordinated Affiliate Lenders that (i)
each Borrower and each Restricted Subsidiary which makes any such borrowing
shall be or become a party to the Agreement in the manner provided for therein
and (ii) each Affiliate of each Borrower and each Restricted Subsidiary (other
than any other Borrower or any other Restricted Subsidiary) from which any such
borrowing is made shall have become a party to the Agreement in the manner
provided for therein; and
WHEREAS, the undersigned wishes to become an "Affiliate
Borrower" under the Agreement; and
WHEREAS, the Agreement provides that any Borrower or
Restricted Subsidiary may become an Affiliate Borrower under the Agreement by
executing and delivering to the Administrative Agent a supplement in
substantially the form of 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 an Affiliate Borrower thereunder and agrees that it
shall, on the date this Supplement is accepted by the Administrative Agent,
become an Affiliate Borrower, 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.
Unless otherwise defined herein, capitalized terms which are defined in
the Agreement are used herein as so defined.
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.
[NAME OF BORROWER OR
RESTRICTED SUBSIDIARY]
By:
Name:
Title:
Address for notices:
Telecopy:
ACKNOWLEDGED AND ACCEPTED
this day of , 1996
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
Name:
Title:
<PAGE>
EXHIBIT B
SUPPLEMENT TO
AFFILIATE SUBORDINATION AGREEMENT
SUPPLEMENT, dated as of , 19__, to the Affiliate Subordination
Agreement, dated as of April ___, 1996 (as amended, supplemented and otherwise
modified from time to time, the "Agreement"), among Chelsea Communications,
Inc., a Delaware corporation, Northeast Cable, Inc., a Delaware corporation,
Kittanning Cablevision, Inc., a Delaware corporation and Robinson/Plum
Cablevision, L.P., a Pennsylvania limited partnership (collectively, the
"Borrowers"), each Restricted Subsidiary of each Borrower from time to time
party hereto (together with the Borrowers, the "Affiliate Borrowers"), each
Affiliate of each Borrower and Restricted Subsidiary (other than any other
Borrower or any other Restricted Subsidiary) from time to time party hereto
(collectively, the "Subordinated Affiliate Lenders"), and Toronto Dominion
(Texas), Inc., as Administrative Agent (in such capacity, the "Administrative
Agent") for the Lenders from time to time parties to the Credit Agreement, dated
of even date herewith, among the Borrowers, such Lenders, the Agents identified
therein and Toronto Dominion (Texas), Inc., as Administrative Agent (as amended,
supplemented and otherwise modified from time to time, the "Credit Agreement").
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 and to issue Letters of Credit (as defined in the Credit Agreement)
upon the terms and subject to the conditions set forth therein; and
WHEREAS, pursuant to Section 7.2(f) of the Credit Agreement,
the Affiliate Borrowers may borrow up to an aggregate amount of [$100,000,000]
(including principal and accrued and unpaid interest thereon) at any one time
outstanding from the Subordinated Affiliate Lenders;
WHEREAS, it is a condition precedent to the right of the
Affiliate Borrowers to borrow from the Subordinated Affiliate Lenders that (i)
each Borrower and Restricted Subsidiary which makes any such borrowing shall be
or become a party to the Agreement in the manner provided for therein and (ii)
each Affiliate of each Borrower and each Restricted Subsidiary (other than any
other Borrower or any other Restricted Subsidiary) from which any such borrowing
is made shall have become a party to the Agreement in the manner provided for
therein; and
WHEREAS, the undersigned wishes to become a "Subordinated
Affiliate Lender" under the Agreement; and
WHEREAS, the Agreement provides that any Affiliate of any
Borrower or any Restricted Subsidiary (other than any other Borrower or
Restricted Subsidiary) may become an Subordinated Affiliate Lender under the
Agreement by executing and delivering to the Administrative Agent a supplement
in substantially the form of 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 Subordinated Affiliate Lender thereunder and agrees
that it shall, on the date this Supplement is accepted by the Administrative
Agent, become a Subordinated Affiliate Lender, 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.
Unless otherwise defined herein, capitalized terms which are defined in
the Agreement are used herein as so defined.
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.
[NAME OF AFFILIATE]
By:
Name:
Title:
Address for notices:
Telecopy:
ACKNOWLEDGED AND ACCEPTED
this day of , 1996
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
Name:
Title:
<PAGE>
EXHIBIT A-2
INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT
INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT dated as of
April __, 1996 (as amended, supplemented and otherwise modified from time to
time, this "Agreement"), among CHELSEA COMMUNICATIONS, INC., a Delaware
corporation, NORTHEAST CABLE, INC., a Delaware corporation, KITTANNING
CABLEVISION, INC., a Delaware corporation and ROBINSON/PLUM CABLEVISION, L.P., a
Pennsylvania limited partnership (collectively, the "Borrowers"), each
Restricted Subsidiary of each Borrower from time to time party hereto, and
TORONTO DOMINION (TEXAS), INC., as Administrative Agent (in such capacity, the
"Administrative Agent") for the Lenders from time to time parties to the Credit
Agreement, dated of even date herewith, among the Borrowers, such Lenders, the
Agents identified therein and Toronto Dominion (Texas), Inc., as Administrative
Agent (as amended, supplemented and otherwise modified from time to time, the
"Credit Agreement").
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 and to issue Letters of Credit
upon the terms and subject to the conditions set forth therein; and
WHEREAS, pursuant to Section 7.2(b) of the Credit Agreement,
any Borrower may borrow from another Borrower and any Restricted Subsidiary may
borrow from any other Restricted Subsidiary or from a Borrower owning directly
or indirectly 100% of the Capital Securities of such Restricted Subsidiary
(collectively, Permitted Intercompany Indebtedness ); and
WHEREAS, it is a condition precedent to the right of each
Borrower and Restricted Subsidiary to incur Permitted Intercompany Indebtedness
that (i) each Borrower and each Restricted Subsidiary which makes any such
borrowing (hereinafter referred to as an Intercompany Borrower , and
collectively as Intercompany Borrowers ) shall be or become a party to this
Agreement in the manner provided for herein and (ii) each Borrower and its
Restricted Subsidiaries from which any such borrowing is made (hereinafter
referred to individually as a Subordinated Intercompany Lender and collectively
as Subordinated Intercompany Lenders ) shall have become a party to this
Agreement in the manner provided for herein;
NOW, THEREFORE, for and in consideration of the premises and
to induce the Agents and the Lenders to permit such borrowings, each Intecompany
Borrower and each Subordinated Intercompany Lender hereby agrees with the
Administrative Agent, for the benefit of the Lenders and the other Agents, as
follows:
23. 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. For purposes of this Agreement, the term "Lender"
shall include any Affiliate of any Lender which has entered into an Interest
Rate Protection Agreement with any Borrower, and the term "Loan Documents" shall
include any Interest Rate Protection Agreement between any Lender (including any
such Affiliate of a Lender) and any Borrower.
(b) For purposes of this Agreement, the following terms
shall have the following meanings:
"Obligations": the Obligations (as defined in the Credit Agreement).
"Reorganization": with respect to any Intercompany Borrower, any
distribution of the assets of such Intercompany Borrower 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 Intercompany Borrower or
the readjustment of its liabilities or any assignment for the benefit of
creditors or any marshalling of its assets or liabilities.
"Senior Indebtedness": (a) the Obligations, and (b) all renewals,
refundings, restructurings and other refinancings thereof, including increases
in the amount thereof.
"Subordinated Indebtedness": the principal of, and interest on, all
loans, advances and other extensions of credit, including but not limited to
Permitted Intercompany Indebtedness, from time to time made by any Subordinated
Intercompany Lender to any Intercompany Borrower and any and all other amounts
payable in connection therewith, whether on account of fees, indemnities, costs,
expenses or otherwise.
(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.
24. Agreement to Subordinate. Each Intercompany Borrower, for
itself and its successors and assigns, covenants and agrees, and each of the
Subordinated Intercompany Lenders, as a holder of Subordinated Indebtedness,
hereby agrees, for itself and its successors and assigns, 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.
25. Meaning of Subordinate and Junior in Right of Payment. (a)
"Subordinate and junior in right of payment" shall mean that no holder of any
part of the Subordinated Indebtedness shall have any claim to the assets of any
Intercompany Borrower on a parity with or prior to the claim of any holder of
the Senior Indebtedness, whether such claim be made in connection with a
Reorganization or otherwise. Unless and until the Senior Indebtedness shall have
been paid in full in cash, and the Commitments, all Letters of Credit, the
Credit Agreement and the other Loan Documents shall have been terminated, no
Subordinated Intercompany Lender will take, retain, permit to exist, demand or
receive from any Intercompany Borrower, and no Intercompany 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, (ii) any security or collateral for the whole or any part of the
Subordinated Indebtedness or (iii) any guaranty of the whole or any part of the
Subordinated Indebtedness; provided, that the Intercompany Borrowers may make
and the Subordinated Intercompany Lenders may receive payments on the
Subordinated Indebtedness in accordance with the terms thereof so long as (A) no
Default or Event of Default shall have occurred and then be continuing or would
occur as a result of, or after giving effect to, any such payment and (B) no
such payment would violate Section 5 hereof or Section 7.6 of the Credit
Agreement. Each Intercompany Borrower 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 the Credit Agreement or 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 and
the Agents shall have indefeasibly received payment in full of the principal of,
interest on and costs and expenses and any and all other amounts then payable in
connection with the Senior Indebtedness in cash and the Commitments, all Letters
of Credit, the Credit Agreement and the other Loan Documents shall have been
terminated. The subordination provisions in this Agreement are for the benefit
of and shall be enforceable directly by the Lenders and the Agents and each
Lender and each Agent 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 and the other Agents pursuant to this Agreement
in enforcing the rights of the Lenders and the other Agents, 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 Subordinated Intercompany Lender 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 such Subordinated
Intercompany Lender to the Administrative Agent to be used to prepay the Loans
outstanding under the Credit Agreement as provided in Section 2.12 or 8.2, as
applicable, of the Credit Agreement.
26. Limitations on Subordinated Indebtedness. The Subordinated
Intercompany Lenders agree that the Subordinated Indebtedness shall be
unsecured, and that, so long as any of the Senior Indebtedness shall remain
unpaid in cash or the Commitments, all Letters of Credit, the Credit Agreement
and the other Loan Documents shall not have been terminated, if at any time any
Subordinated Intercompany Lender shall be in possession of any Collateral, such
Subordinated Intercompany Lender shall promptly deliver such Collateral to the
Administrative Agent and until such delivery shall hold such Collateral in trust
for the Lenders and the Agents. Until such time as the Senior Indebtedness has
been paid in full in cash and the Commitments, all Letters of Credit, the Credit
Agreement and the other Loan Documents shall have been terminated, the
Subordinated Intercompany Lenders agree not to exercise any of their respective
rights under any document, instrument or agreement, or to accelerate, sue for or
collect the obligations of any of the Intercompany Borrowers, or to realize upon
any of the Collateral or any other assets of any of the Intercompany Borrowers
or to attach, levy upon or execute against any of the Collateral or any other
assets of any of the Intercompany Borrowers; provided however, that the
Subordinated Intercompany Lenders shall be entitled to the payments provided for
in Section 3 so long as the conditions to such payments set forth in Section 3
have been satisfied.
27. Subordinated Indebtedness Subordinated to Prior Payment of
All Senior Indebtedness on Reorganization; Sale of the Intercompany Borrowers;
Etc. Upon any payment or distribution of all or any of the assets or securities
of any Intercompany Borrower of any kind or character, whether in cash, property
or securities, whether made pursuant to a Reorganization relative to such
Intercompany Borrower or any of its properties, or a distribution of proceeds of
or upon sale of all or any part of such Intercompany Borrower or any of its
subsidiaries or any of their respective assets, other than as permitted by
Section 7.5 of the Credit Agreement, then in such event:
(a) the Lenders and the Agents shall be entitled to receive payment in
full in cash 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 Intercompany 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 Intercompany 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 and the Agents, 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 in cash, after giving effect to any concurrent
payment or distribution to the Lenders or the Agents; and
(c) in the event that, notwithstanding the foregoing provisions of this
Section 5, any holder of Subordinated Indebtedness shall have received any
payment or distribution with respect to Subordinated Indebtedness contrary to
the foregoing provisions of this Section 5, 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 and the Agents 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 or
the Agents.
In the event of a Reorganization, if any Subordinated
Intercompany Lender has not filed any claim, proof of claim or other instrument
of similar character with respect to the Subordinated Indebtedness of such
Subordinated Intercompany Lender within 20 days before the expiration of the
time to file the same, the Administrative Agent, any other Agent or any Lender
may, as an attorney-in-fact for such Subordinated Intercompany Lender, file, any
claim, proof of claim or other instrument of similar character on behalf of such
Subordinated Intercompany Lender, and such Subordinated Intercompany Lender
hereby appoints the Administrative Agent, any such other Agent and any such
Lender as an attorney-in-fact for such Subordinated Intercompany Lender, to so
file any claim, proof of claim or such other instrument of similar character.
Each Subordinated Intercompany Lender ratifies all that the Administrative
Agent, any such other Agent and any such Lender, as said attorney-in-fact, shall
lawfully do or cause to be done by virtue hereof and not in contravention of the
terms hereof. The power of attorney granted in this Section 5 is a power coupled
with an interest and shall be irrevocable.
Upon any distribution of assets of any Intercompany Borrower
referred to in this Agreement, the Subordinated Intercompany Lenders 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 and the Agents, 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 and the Agents to receive payment in full
of the Senior Indebtedness in accordance with this Agreement.
28. Holders of Subordinated Indebtedness to be Subrogated to
Rights of Holders of Senior Indebtedness. Subject to the payment in full in cash
of all Senior Indebtedness, the holders of Subordinated Indebtedness shall be
subrogated to the rights of the Lenders and the Agents to receive payments or
distributions of assets of the Intercompany 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 and the Agents of assets, whether in
cash, property or securities, distributable to the Lenders and the Agents under
the provisions hereof to which the holders of the Subordinated Indebtedness
would be entitled except for the provisions of this Agreement, and no payment
pursuant to the provisions of this Agreement to the Lenders and the Agents by
the holders of the Subordinated Indebtedness shall, as between the relevant
Intercompany Borrower, its creditors other than the Lenders and the Agents, and
the holders of the Subordinated Indebtedness, be deemed to be a payment by such
Intercompany 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 of the
Subordinated Indebtedness, on the one hand, and the Lenders and the Agents, on
the other hand.
29. Obligations of the Intercompany Borrowers Unconditional.
(a) Nothing contained in this Agreement is intended to or shall relieve the
obligations of the Intercompany Borrowers to the Lenders or the Agents or the
holders of Subordinated Indebtedness to pay any amount in respect of the Senior
Indebtedness or such Subordinated Indebtedness (subject to the terms hereof), 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 Agents or the holders of Subordinated Indebtedness, on the one
hand, and the other creditors of the Intercompany Borrowers, on the other hand.
All rights and interests of the Lenders and the Agents hereunder, and all
agreements and obligations of the Intercompany Borrowers and the Subordinated
Intercompany Lenders, shall remain in full force and effect irrespective of, and
each Intercompany Borrower and each Subordinated Intercompany Lender hereby
irrevocably waives any defenses it may now or hereafter have in any way relating
to:
(i) any lack of validity or enforceability of any Loan Document
or any other agreement or instrument relating thereto;
(ii) any change in the amount, 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, the Intercompany Borrowers in respect of the
Senior Indebtedness, or of the Intercompany Borrowers or the Subordinated
Intercompany Lenders in respect of this Agreement.
(b) Nothing contained in this Agreement shall affect the
obligation of the Intercompany Borrowers to make, or prevent the Intercompany
Borrowers 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 2, 3, 4 and 5, affect the obligation of the Intercompany
Borrowers to make, or prevent the Intercompany Borrowers from making, at any
time, payment of any amount in respect of Subordinated Indebtedness.
30. 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
Intercompany Borrower. No Intercompany Borrower will publish or give to any
creditor or prospective creditor of such Intercompany 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
of Subordinated Indebtedness 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 Intercompany Borrower or such Intercompany
Borrower, provided, however, that nothing contained in this Section 8 is
intended to restrict the right or obligation of any Intercompany Borrower to
make filings or registrations pursuant to any Requirement of Law.
31. 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 Intercompany 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.
32. Legend. The Intercompany Borrowers and the Subordinated
Intercompany Lenders shall cause each note representing or evidencing
Subordinated Indebtedness to have affixed upon it a legend, including in
connection with the issuance of any new or replacement note with respect to the
transfer of such note or the reduction of the principal amount thereof, which
reads substantially as follows:
"This instrument is subject to the Intercompany Indebtedness
Subordination Agreement, dated as of April ___, 1996, among Chelsea
Communications, Inc., a Delaware corporation, Northeast Cable, Inc., a Delaware
corporation, Kittanning Cablevision, Inc., a Delaware corporation and
Robinson/Plum Cablevision, L.P., a Pennsylvania limited partnership (the
"Borrowers"), each Restricted Subsidiary of each Borrower from time to time
party thereto, and Toronto Dominion (Texas), Inc., as Administrative Agent (in
such capacity, the "Administrative Agent"), for the Lenders from time to time
parties to the Credit Agreement, dated of even date with the Intercompany
Indebtedness Subordination Agreement, among the Borrowers, such Lenders, the
Agents identified therein and Toronto Dominion (Texas), Inc., as Administrative
Agent."
33. Representations and Warranties. Each Subordinated
Intercompany Lender hereby represents and warrants that:
(i) such Subordinated Intercompany Lender 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 Subordinated Intercompany Lender enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law);
(iii) the execution, delivery and performance of this Agreement will
not violate any provision of any Requirement of Law or Contractual Obligation of
such Subordinated Intercompany Lender;
(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 Subordinated Intercompany Lender) is required in connection with the
execution, delivery, performance, validity or enforceability of this Agreement;
(v) no Litigation is pending or, to the knowledge of such Subordinated
Intercompany Lender, threatened by or against such Subordinated Intercompany
Lender with respect to this Agreement;
(vi) the agreements governing the Subordinated Indebtedness of such
Subordinated Intercompany Lender do not and will not contain (A) any default
which is triggered by (I) a default under any other agreements to which any
Intercompany Borrower is a party or (II) any other Indebtedness of any
Intercompany Borrower being declared due and payable prior to its stated
maturity, or the ability of the holder of any other Indebtedness of any
Intercompany Borrower to declare such Indebtedness due and payable prior to its
stated maturity or (B) without limiting clause (A) above, any covenants or
events of default which are more restrictive than those contained in the Credit
Agreement; and
(vii) such Subordinated Intercompany Lender is an Affiliate of the
Borrower.
34. Successors; Continuing Effect. This Agreement is being
entered into for the benefit of, and shall be binding upon, the Lenders, the
Agents and the Subordinated Intercompany Lenders, and their respective
successors and assigns, including subsequent holders of Senior Indebtedness and
the Subordinated Indebtedness, and the term "holders of Senior Indebtedness"
shall include any such subsequent or additional holder of Senior Indebtedness,
and the term "Subordinated Intercompany Lenders" shall include any such
subsequent or additional holder of Subordinated Intercompany Indebtedness,
wherever the context permits, provided that no Subordinated Intercompany Lender
shall transfer or assign any of its rights with respect to Subordinated
Indebtedness to any Person other than another Subordinated Intercompany Lender.
35. Further Assurances. Each Intercompany Borrower and each
Subordinated Intercompany Lender 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, the Lenders and the other Agents to exercise and enforce
their rights and remedies hereunder.
36. Expenses. Each of the Borrowers jointly and severally
agree 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 Agents and the
Lenders may incur in connection with the exercise or enforcement of any of their
rights or interests vis-a-vis the Subordinated Intercompany Lenders.
37. Notices; Amendments; etc. (a) All notices, requests and
demands to or upon the Administrative Agent, any Intercompany Borrower or any
Subordinated Intercompany Lender 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 or any Borrower, at its address
or transmission number for notices provided in Section 10.2 of the Credit
Agreement;
(ii) if to any Lender or to any Agent other than the Administrative
Agent, at its address or transmission number for notices provided in Annex A to
the Credit Agreement, as supplemented from time to time pursuant to assignments
in accordance with Section 10.6 of the Credit Agreement; and
(iii) if to any other Intercompany Borrower or any other Subordinated
Intercompany Lender, at its address or transmission number for notices set forth
under its signature below.
The Administrative Agent, each Lender, each other Agent, each
Intercompany Borrower and each Subordinated Intercompany Lender may change its
address and transmission numbers for notices by notice in the manner provided in
this Section.
(b) Subject to Section 10.1 of the Credit
Agreement, this Agreement may be amended
and the terms hereof may be waived only with the written consent of the
Administrative Agent, each Intercompany Borrower and the holders of a majority
of the principal amount of the Subordinated Indebtedness then outstanding;
provided that any provision of this Agreement may be waived by the
Administrative Agent in a letter or agreement executed by the Administrative
Agent or by facsimile transmission from the Administrative Agent. Any such
amendment or waiver shall be binding upon the Lenders, the Agents, the
Intercompany Borrowers and all the holders of Subordinated Indebtedness.
38. 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.
39. Submission to Jurisdiction. Each Intercompany
Borrower and each Subordinated Intercompany Lender 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 it at its address set
forth under its signature below or at such other address of which the
Administrative Agent shall have been notified pursuant to Section 15;
(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; 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 Section any special, exemplary or punitive damages.
40. WAIVER OF JURY TRIAL. EACH INTERCOMPANY BORROWER, EACH
SUBORDINATED INTERCOMPANY LENDER AND THE ADMINISTRATIVE AGENT HEREBY KNOWINGLY
AND INTENTIONALLY, 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.
41. 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 LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICT OF LAW PRINCIPLES.
42. Counterparts. This Agreement may be executed by one
or more of the parties hereto on any number of counterparts (including by
telecopy transmission), and all such counterparts taken together shall
constitute one and the same instrument.
43. Integration. This Agreement and the other Loan Documents
represent the final agreement of the parties hereto with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by any Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
44. Addition of Intercompany Borrowers and Subordinated
Intercompany Lenders. Any Restricted Subsidiary of any Borrower may become an
"Intercompany Borrower" or a Subordinated Intercompany Lender under this
Agreement by executing and delivering to the Administrative Agent a Supplement
to this Agreement in the form attached hereto as Exhibit A.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this
Intercompany Indebtedness Subordination Agreement to be duly executed and
delivered by their duly authorized officers on the date and year first above
written.
CHELSEA COMMUNICATIONS, INC.
By:
Name:
Title:
NORTHEAST CABLE, INC.
By:
Name:
Title:
KITTANNING CABLEVISION, INC.
By:
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: Kittanning Cablevision, Inc.,
its General Partner
By:
Name:
Title:
AURORA CABLE VISION, INC.,
BETTER TV, INC. OF BENNINGTON,
CAMPBELL COMMUNICATIONS, INC.,
CHAUTAUQUA COUNTY CABLE VISION, INC.,
HARBOR VUE CABLE TV, INC.,
HOOSICK CABLEVISION, INC.,
KALAMAZOO COUNTY CABLEVISION, INC.,
MASS. CABLEVISION, INC.,
MT. LEBANON CABLEVISION, INC.,
MULTI-CHANNEL T.V. CABLE COMPANY,
PERICLES COMMUNICATIONS CORPORATION,
RIGPAL COMMUNICATIONS, INC.,
SOUTH SHORE CABLEVISION, INC.,
UPPER ST. CLAIR CABLEVISION, INC.,
VERMILION CABLE COMMUNICATIONS, INC.,
MOUNTAIN CABLE COMMUNICATIONS
CORPORATION
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
ADELPHIA CABLEVISION ASSOCIATES, L.P.
By: CHELSEA COMMUNICATIONS, INC.,
its General Partner
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
MOUNTAIN CABLE COMPANY
By: PERICLES COMMUNICATIONS
CORPORATION, its Managing General Partner
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
<PAGE>
THREE RIVERS CABLE ASSOCIATES, L.P.
By: MT. LEBANON CABLEVISION, INC.,
its General Partner
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
Name:
Title:
<PAGE>
EXHIBIT A
SUPPLEMENT TO
INTERCOMPANY INDEBTEDNESS SUBORDINATION AGREEMENT
SUPPLEMENT, dated as of , 19__, to the Intercompany
Indebtedness Subordination Agreement, dated as of April ___, 1996 (as amended,
supplemented and otherwise modified from time to time, the "Agreement"), among
Chelsea Communications, Inc., a Delaware corporation, Northeast Cable, Inc., a
Delaware corporation, Kittanning Cablevision, Inc., a Delaware corporation and
Robinson/Plum Cablevision, L.P., a Pennsylvania limited partnership (the
"Borrowers"), each Restricted Subsidiary of each Borrower from time to time
party thereto, and Toronto Dominion (Texas), Inc., as Administrative Agent (in
such capacity, the "Administrative Agent") for the Lenders from time to time
parties to the Credit Agreement, dated as of April __, 1996, among the
Borrowers, such Lenders, the Agents identified therein and Toronto Dominion
(Texas), Inc., as Administrative Agent (as amended, supplemented and otherwise
modified from time to time, the "Credit Agreement").
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 and to issue Letters of Credit upon the terms and subject to the
conditions set forth therein; and
WHEREAS, pursuant to Section 7.2(b) of the Credit Agreement,
any Borrower may borrow from another Borrower and any Restricted Subsidiary may
borrow from a Borrower owning directly or indirectly 100% of the Capital
Securities of such Restricted Subsidiary (collectively, Permitted Intercompany
Indebtedness ); and
WHEREAS, it is a condition precedent to the right of each
Borrower and Restricted Subsidiary to incur Permitted Intercompany Indebtedness
that each Borrower and each Restricted Subsidiary which makes any such borrowing
shall be or become a party to the Agreement in the manner provided for therein;
and
WHEREAS, the undersigned wishes to become a party to the
Agreement; and
WHEREAS, the Agreement provides that any Borrower or
Restricted Subsidiary of any Borrower may become a party to the Agreement by
executing and delivering to the Administrative Agent a supplement in
substantially the form of 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 an Intercompany Borrower and a Subordinated Intercompany
Lender, as applicable to such undersigned, thereunder and agrees that it shall,
on the date this Supplement is accepted by the Administrative Agent, become a
Subordinated Intercompany Lender or Intercompany Borrower, as applicable to the
undersigned, 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.
Unless otherwise defined herein, capitalized terms which are defined in
the Agreement are used herein as so defined.
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.
[NAME OF ENTITY]
By:
Name:
Title:
Address for notices:
Telecopy:
ACKNOWLEDGED AND ACCEPTED
this day of , 19___
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
Name:
Title:
<PAGE>
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of April
___, 1996, among Chelsea Communications, Inc., a Delaware corporation, Northeast
Cable, Inc., a Delaware corporation, Kittanning Cablevision, Inc., a Delaware
corporation and Robinson/Plum Cablevision, L.P., a Pennsylvania limited
partnership, as the Borrowers, the several Lenders from time to time parties
thereto, the Agents identified therein and Toronto Dominion (Texas), Inc., as
Administrative Agent (as amended, supplemented and otherwise modified from time
to time, the "Credit Agreement"). Capitalized terms used herein and not
otherwise defined have the meanings assigned to them in the Credit Agreement.
_______________________ (the "Assignor") and _________________ (the "Assignee")
agree as follows:
11. 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] [Term Loan
Facility] contained in the Credit Agreement as set forth on Schedule 1 (the
"Assigned Facility").
12. 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 any Borrower, any of its Subsidiaries or
any other obligor or the performance or observance by any Borrower, any of its
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 Note held by
it evidencing the Assigned Facility 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).
13. The Assignee (a) represents and warrants that it is (i) an
Eligible Assignee and will make or acquire Loans under the Credit Agreement for
its own account in the ordinary course of business and (ii) 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 most recent audited
and interim Financial Statements delivered pursuant to Section 6 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, any other 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 Section 2.15(b) of the Credit Agreement.
14. The effective date of this Assignment and Acceptance shall
be _____________, ____ (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), together with the $3,000 processing fee, if any, required by Section
10.6(e) of the Credit Agreement.
15. 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.
16. 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 [Revolving
Credit] [ Term Loan] 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.
17. THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICT OF LAWS PRINCIPLES.
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW ON SCHEDULE 1]
<PAGE>
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT,
DATED AS OF
_______________ ___, 1996,
AMONG
CHELSEA COMMUNICATIONS, INC.,
NORTHEAST CABLE, INC.
KITTANNING CABLEVISION ,INC. AND
ROBINSON/PLUM CABLEVISION, L.P.,
THE SEVERAL LENDERS FROM TIME
TO TIME PARTIES THERETO,
THE AGENTS NAMED THEREIN
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal
Facility Assigned Amount Assigned
Percentage Assigned1
Revolving Credit Facility $
%
Term Loan Facility $
%
[Name of Assignee] [Name of Assignor]
By By
Name: Name:
Title: Title:
1 Calculate the [Revolving Credit Facility][Term Loan Facility]
Percentage that is assigned to at least 15 decimal places and
show as percentage of the aggregate commitments of all Lenders.
The Domestic Lending Office, the Eurodollar Lending Office and the Notice
Address for purposes of Section 10.2 of the Credit Agreement for the Assignee
are as set forth below:
Domestic Lending Office:
Attention:
Telephone:
Telecopier:
Eurodollar Lending Office:
Attention:
Telephone:
Telecopier:
Notice Address:
Attention:
Telephone:
Telecopier:
Assignee is a non-resident alien, foreign corporation or other foreign entity:
_______No _______Yes
if yes, forms 4224, 1001 or W-8 attached signee is a United States Person:
_______No _______Yes
if yes, form W-9 attached
Accepted:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
Name:
Title:
Consented To: Consented To:
CHELSEA COMMUNICATIONS, INC. NORTHEAST CABLE, INC.
By: By:
Name: Name:
Title: Title:
Consented To: Consented To:
KITTANNING CABLEVISION, INC. ROBINSON/PLUM CABLEVISION, L.P.
By: Kittanning Cablevision, Inc.
By:
Name: By:
Title: Name:
Title:
<PAGE>
EXHIBIT C
BORROWER ASSIGNMENT OF PARTNERSHIP INTERESTS
BORROWER ASSIGNMENT OF PARTNERSHIP INTERESTS, dated as of April
___, 1996, made by Chelsea Communications, Inc. ( Chelsea ), Kittanning
Cablevision, Inc. ( Kittanning ) and Northeast Cable, Inc. ( Northeast ), each a
Delaware corporation (Chelsea, Kittanning and Northeast being hereinafter
collectively referred to as the "Pledgors"), in favor of TORONTO DOMINION
(TEXAS), INC., as Administrative Agent (in such capacity, the "Administrative
Agent") for the several Lenders from time to time parties to the Credit
Agreement, dated of even date herewith, among Chelsea Communications, Inc., a
Delaware corporation, the Pledgors and Robinson/Plum Cablevision, L.P., a
Pennsylvania limited partnership, as the Borrowers, such Lenders, the Agents
identified therein and Toronto Dominion (Texas), Inc., as Administrative Agent
(as amended, supplemented and otherwise modified from time to time, the "Credit
Agreement ).
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 and to issue Letters of Credit
upon the terms and subject to the conditions set forth therein; 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 and to issue Letters of Credit under the Credit Agreement
that the Pledgors shall have executed and delivered this Borrower Assignment of
Partnership Interests to the Administrative Agent for the benefit of the Lenders
and the Agents;
NOW, THEREFORE, for and in consideration of the premises and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Pledgors hereby agree with the Administrative Agent,
for the benefit of the Lenders and the Agents, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms which are
defined in the Credit Agreement and used herein are so used as so defined. For
purposes of this Borrower Assignment of Partnership Interests, the term "Lender"
shall include any Affiliate of any Lender which has entered into an Interest
Rate Protection Agreement with any Borrower, and the term "Loan Documents" shall
include any Interest Rate Protection Agreement between any Lender (including any
such Affiliate of a Lender) and any Borrower.
(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, Proceeds, Instrument and Chattel Paper;
and the following terms have the following meanings:
"Agreement": this Borrower Assignment of Partnership Interests, as the
same may be amended, supplemented and otherwise modified from time to time.
"Code": the Uniform Commercial Code as from time to time in effect in
the State of New York.
"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
and the Agents as provided herein.
"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 Pledgors to receive, directly or
indirectly, moneys or any other rights or benefits therefrom.
Obligations : the Obligations (as defined in the Credit Agreement),
and all renewals, refundings, restructurings and other refinancings thereof,
including increases in the amount thereof.
"Partnership Agreements": (i) the Amended and Restated Limited
Partnership Agreement of Adelphia Cablevision Associates, L.P., dated May 11,
1988, by and among Chelsea as the general partner and Kalamazoo County
Cablevision, Inc., Vermilion Cable Communications, Inc., Mass. Cablevision, Inc.
and Aurora Cablevision, Inc., as the limited partners, and (ii) the Limited
Partnership Agreement of Robinson/Plum Cablevision, L.P., dated as of the 24th
day of October, 1995, by and among Plato Communications, Inc. (now known as
Kittanning), as the general partner and Northeast, as the limited partner, as
the same may be amended, supplemented and otherwise modified from time to time
to the extent permitted by Section 7.8 of the Credit Agreement.
"Partnership Interests": as defined in Section 2 of this Agreement.
"Partnerships": Adelphia Cablevision Associates, L.P. and Robinson/Plum
Cablevision, L.P., both Pennsylvania limited partnerships.
"Pledged Collateral": as defined in Section 2 of this Agreement.
(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.
2. Grant of Security Interest. 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 Pledgors hereby pledge, assign and transfer to the
Administrative Agent for the benefit of the Lenders and the Agents, and grant to
the Administrative Agent for the benefit of the Lenders and the Agents, a
continuing first priority security interest in, any and all of the following
property now owned or at any time hereafter acquired by the Pledgors, or in
which the Pledgors may acquire any right, title or interest (collectively, the
"Pledged Collateral"):
(a) any and all of their respective partnership interests in the
Partnerships as set forth in Schedule 1 attached hereto, including, without
limitation, all their respective rights, title and interest to participate in
the operation or management of the Partnerships and all their respective rights
to properties, assets, partnership interests and distributions, including,
without limitation, distributions of profits, surplus or other compensation by
way of income or liquidating distributions, in cash or in kind, under the
applicable Partnership Agreement in respect of such partnership interests
(collectively, the "Partnership Interests");
(b) all Accounts and other rights to payment and distributions of
any kind arising out of the Partnership Agreements in respect of the Pledgors
Partnership Interests;
(c) all General Intangibles arising out of or constituted by the
Partnership Agreements in respect of the Pledgors Partnership Interests; and
(d) 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
and all Letters of Credit shall have been terminated and the Credit Agreement
and the Security Documents shall no longer be in effect.
3. Rights of Administrative Agent; Limitations on
Administrative Agent's Obligations.
(a) Pledgors Remain Liable. Anything herein to the contrary
notwithstanding, the Pledgors shall remain liable under the Partnership
Agreements to observe and perform all the conditions and obligations to be
observed and performed by them 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 Pledgors 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 them or to which they may be entitled at
any time or times.
(b) Proceeds. The Administrative Agent hereby authorizes the
Pledgors, until the occurrence of an Event of Default and until such Event of
Default shall be waived in writing or cured, (i) to collect the Accounts and
payments and distributions of any kind in respect of such Pledgors Partnership
Interests, and (ii) to retain the Proceeds of such Accounts and other payments
and distributions, in each case subject to the terms of Section 7.6 of the
Credit Agreement. From and after the occurrence of an Event of Default and
during the continuance thereof, the Administrative Agent shall have the right,
but not the obligation, to collect and retain the Accounts and other payments
and distributions of any kind in respect of the Pledgors Partnership Interests,
as provided in Section 6. If required by the Administrative Agent at any time
after the occurrence and during the continuance of an Event of Default, the
Accounts and other rights to payment and distributions of any kind in respect of
the Pledgors Partnership Interests and any Proceeds of such Accounts and other
rights to payment and distributions, when and if collected by any Pledgor, shall
be forthwith deposited by such Pledgor in the exact form received, duly endorsed
by such Pledgor to the Administrative Agent if required, in a Collateral Account
and, until so turned over, shall be held by such Pledgor in trust for the
Administrative Agent, for the benefit of the Lenders and the Agents, segregated
from other funds of the Pledgors.
4. Representations and Warranties. The Pledgors hereby
represent and warrant that:
(a) Title; No Other Liens. Except for the Lien granted to the
Administrative Agent pursuant to this Agreement and other Permitted Liens, each
of the Pledgors owns each item of the Pledged Collateral pledged by it hereunder
free and clear of any and all Liens or claims of others. No security agreement
or financing statement 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. The Partnership Interests in each Partnership set forth in
Schedule 1 attached hereto constitute 100% of the partnership interests in such
Partnership.
(b) Perfected First Priority Liens. Upon giving of appropriate notices
pursuant to Article 8 of the Code in the form of Exhibits A and B to this
Agreement with respect to each Partnership Interest and upon the filing of UCC-1
financing statements required to perfect the security interests granted
hereunder in Accounts and other rights to payment and distributions of any kind
and General Intangibles arising out of the Partnership Agreements in respect of
the Pledgors 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 and a continuing security
interest in the Pledged Collateral in favor of the Administrative Agent for the
benefit of the Lenders and the Agents and shall be enforceable as such against
all creditors of and purchasers from the Pledgors, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally, and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
(c) Chief Executive Office. The Pledgors chief executive offices and
principal places of business, and the places where the Pledgors keep their
respective books and records, are located at 5 West Third Street, Coudersport,
Pennsylvania 16915.
5. Covenants. The Pledgors covenant and agree with the
Administrative Agent for the benefit of the Lenders and the Agents that until
the Obligations are paid in full, the Commitments and Letters of Credit are
terminated and the Credit Agreement and the Security Documents shall no longer
be in effect:
(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 Pledgors, the Pledgors 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. Each Pledgor also hereby
authorizes the Administrative Agent to file any such financing or continuation
statement without the signature of such Pledgor to the extent permitted by
applicable law. The Pledgors 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 Pledgors will pay, and save the Administrative
Agent, each Lender and each of the other Agents 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 willful
misconduct of the Administrative Agent, such Lender or such other Agent, as the
case may be.
(c) Maintenance of Records. The Pledgors will keep and maintain at
their 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 Pledgors 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
Permitted Liens, and will defend the right, title and interest of the
Administrative Agent for the benefit of the Lenders and the Agents in and to any
of the Pledged Collateral against the claims and demands of all Persons
whomsoever.
(e) Further Identification of Pledged Collateral. The Pledgors 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 Pledgors will not, unless they
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
their respective chief executive offices or principal places of business from
that specified in Section 4(c) or remove their respective books and records from
such location or (ii) change their names, identities or structures to such an
extent that any financing statement filed by the Administrative Agent in
connection with this Agreement would become seriously misleading.
6. Administrative Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Pledgors hereby irrevocably constitute and appoint the
Administrative Agent and any officer or agent thereof, to the extent permitted
under applicable law, with full power of substitution, as their true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Pledgors and in the name of the Pledgors 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 accomplish the purposes of this Agreement, and, without limiting
the generality of the foregoing, the Pledgors hereby give the Administrative
Agent the power and right, on behalf of the Pledgors, without notice to or
assent by the Pledgors, to do the following:
(i) upon the occurrence and during the continuance of an Event of
Default, to exercise all partnership rights, powers and privileges with respect
to the Partnership Interests to the same extent as a partner under the
Partnership Agreements;
(ii) upon the occurrence and during the continuance of an Event of
Default, in the name of the Pledgors 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 either of the Pledgors as a partner
under the Partnership Agreement or (ii) for the payment of any other moneys due
to either of the Pledgors as a 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 Partnership Agreement 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 an 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 Pledgors 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 Pledgors
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
Pledgors might do.
The Pledgors hereby ratify all that said attorneys shall
lawfully do or cause to be done by virtue hereof and not in contravention of the
terms hereof. This power of attorney is a power coupled with an interest and
shall be irrevocable.
(b) Other Powers. The Pledgors also authorize 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 the Pledgors for any act or failure
to act hereunder, except for its or their gross negligence or willful
misconduct.
7. Performance by Administrative Agent of Pledgors Obligations;
Rights of Pledgors Prior to an Event of Default. (a) If the Pledgors fail to
perform or comply with any of their 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 reasonable expenses of the Administrative Agent incurred in
connection with such performance or compliance, together with interest thereon
at the Default Rate shall be payable by the Pledgors 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 Pledgors shall be entitled to receive all distributions made
pursuant to their respective Partnership Agreements and exercise all voting
rights and take all action they are authorized to take thereunder, provided that
no distribution shall be made which is prohibited by the Credit Agreement, the
Partnership Agreements, any other Loan Document or any of the other documents
executed in connection with the transactions contemplated thereby or 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.
8. 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 Pledgors 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,
any Lender and any other Agent, 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 Pledgors or any other Person,
which right or equity of redemption is hereby waived or released. The Pledgors
further agree, 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 Pledgors 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, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations as provided
in the Credit Agreement, 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 Pledgors. To the extent permitted by applicable law, the Pledgors
waive all claims, damages, and demands against the Administrative Agent, the
Lenders or the other Agents 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 a Pledgor, exercise all
voting and other rights of such Pledgor as a limited or general, as the case may
be, partner of the Partnership in respect of which such Pledgor is a partner and
exercise all other rights as a limited or general, as the case may be, partner
provided under the Partnership Agreements in respect of the Partnership Interest
of such Pledgor and the Administrative Agent shall receive all permitted
distributions, if any, made for the account of such Pledgor as a limited or
general, as the case may be, partner under the Partnership Agreements.
(c) The Pledgors shall remain liable for any deficiency if the
proceeds of any sale or other disposition of Pledged Collateral are insufficient
to pay the Obligations and the fees and disbursements of any attorneys employed
by the Administrative Agent, any Lender or any other Agent to collect such
deficiency.
9. 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 Pledgors or otherwise.
10. 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.
11. Notices. Notices hereunder shall be given in
accordance with Section 10.2 of the Credit Agreement.
12. 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.
13. 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.
14. 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, any Lender or any other Agent, 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, any Lender or any other Agent 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, any Lender or any other Agent
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.
15. 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 Pledgors and
the Administrative Agent; provided that any provision of this Agreement may be
waived by the Administrative Agent in a letter or agreement executed by the
Administrative Agent or by facsimile transmission from the Administrative Agent.
This Agreement shall be binding upon the successors and assigns of the Pledgors
and shall inure to the benefit of the Administrative Agent, for the benefit of
the Lenders and the Agents, and the successors and assigns of the Administrative
Agent, the Lenders and the other Agents, provided that the Pledgors may not
assign their 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.
16. 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 Interests) 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 federal, state or local 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 federal, state or local
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 federal,
state, or local Governmental Authority or instrumentality, the Pledgors 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 Pledgors will use their 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 the occurrence and
continuance of an Event of Default.
17. Authority of Administrative Agent. The Pledgors acknowledge
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 nonexercise 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 and the other Agents, be governed by the provisions of 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
Pledgors, the Administrative Agent shall be conclusively presumed to be acting
as agent for the Lenders and the other Agents with full and valid authority so
to act or refrain from acting, and neither the Pledgors nor the Partnerships
shall be under any obligation, or entitlement, to make any inquiry respecting
such authority.
18. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PLEDGORS HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ITS CONFLICT OF LAW PRINCIPLES.
19. Submission To Jurisdiction; Waivers. The Pledgors
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 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) consent that any such action or proceeding may be brought
in such courts and waives 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
Pledgors at their address set forth in Section 10.2 of the Credit Agreement 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.
20. WAIVER OF JURY TRIAL. THE PLEDGORS HEREBY KNOWINGLY
AND INTENTIONALLY, 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.
21. Counterparts. This Agreement may be executed by the
Pledgors 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.
22. Integration. This Agreement and the other Loan Documents
represent the final agreement of the parties hereto and thereto, respectively,
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by any Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
<PAGE>
IN WITNESS WHEREOF, the Pledgors have caused this Borrower
Assignment of Partnership Interests to be duly executed and delivered as of the
date first above written.
CHELSEA COMMUNICATIONS, INC.
By:
Name:
Title:
KITTANNING CABLEVISION, INC.
By:
Name:
Title:
NORTHEAST CABLE, INC.
By:
Name:
Title:
Schedules
Schedule 1 - Description of Partnership Interests
Exhibits
Exhibit A - Transaction Statement
Exhibit B - Registration Notice
<PAGE>
SCHEDULE 1
DESCRIPTION OF PARTNERSHIP INTERESTS
(1) All limited and general partnership interests in Adelphia Cablevision
Associates, L.P. held by Chelsea from time to time, including, without
limitation:
an undivided 27.43% general partnership interest in Adelphia Cablevision
Associates, L.P.
(2) All limited and general partnership interests in Robinson/Plum
Cablevision, L.P. held by Kittanning from time to time, including, without
limitation:
an undivided 1% general partnership interest in Robinson/Plum Cablevision, L.P.
(3) All limited and general partnership interests in Robinson/Plum
Cablevision, L.P. held by Northeast from time to time, including, without
limitation:
an undivided 99% limited partnership interest in Robinson/Plum Cablevision, L.P.
<PAGE>
EXHIBIT A
Transaction Statement
, 199__
To: [Name of Pledgor]
c/o
Attention:
and
Toronto Dominion (Texas), Inc., as Administrative Agent
909 Fannin, Suite 1700
Houston, TX 77010 Attention:
This statement is to advise you that a pledge of the following
uncertificated securities has been registered in the name of Toronto Dominion
(Texas), Inc., as Administrative Agent:
1. Uncertificated Security: All partnership interests of
[Name of Pledgor], in , L.P.
2. Registered Owner:
[Name of Pledgor]
Attention:
Taxpayer Identification Number:
3. Registered Pledgee:
Toronto Dominion (Texas), Inc., as Administrative Agent
909 Fannin, Suite 1700
Houston, TX 77010 Attention:
Taxpayer Identification Number:
4. There are no liens or restrictions of , L.P., and no adverse claims to which
the uncertificated security is or may be subject known to _________________,
L.P.
5. The pledge was registered on , 199__.
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, CONFERS NO 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],
Managing General Partner
By:
Name:
Title:
<PAGE>
EXHIBIT B
, 199__
To: [ADDRESS]
You are hereby instructed to register the pledge of the
following uncertificated security as follows:
All partnership interests of the undersigned in , L.P.
Pledgor Pledgee
[Name of Pledgor] Toronto Dominion (Texas), Inc.,
c/o as Administrative Agent
909 Fannin, Suite 1700
Houston, TX 77010
Attention: Attention:
Very truly yours,
[NAME OF PLEDGOR]
[By: ,
Managing General Partner]1
By:
Name:
Title:
1 If Pledgors are a partnership.
<PAGE>
EXHIBIT D
COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement, dated as of April
___, 1996, among Chelsea Communications, Inc., a Delaware corporation, Northeast
Cable, Inc., a Delaware corporation, Kittanning Cablevision, Inc., a Delaware
corporation and Robinson/Plum Cablevision, L.P., a Pennsylvania limited
partnership, as the Borrowers, the Lenders parties thereto, the Agents
identified therein and Toronto Dominion (Texas), Inc., as Administrative Agent
(as amended, supplemented and otherwise modified from time to time, the "Credit
Agreement"). Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Credit Agreement. This Compliance Certificate
is delivered pursuant to Section 6.2(b) of the Credit Agreement.
The undersigned, _______________________, the Treasurer of the
Borrowers and/or the General Partner of the Borrowers, does hereby certify on
behalf of the Borrowers as follows:
6. Based on an examination sufficient in my judgment to enable
me to make an informed statement, the Borrowers have observed or performed all
of their respective covenants and other agreements, and satisfied every
condition to be satisfied on or prior to the date hereof, contained in the
Credit Agreement and the other Loan Documents to be observed, performed or
satisfied by them, and that the undersigned has obtained no knowledge of any
Default or Event of Default [except as specified in this certificate].
7. As of the date of the Financial Statements being delivered
in connection herewith, the Borrowers were in compliance with the covenants set
forth in Sections 7.1, 7.5(a), 7.6, 7.7 and 7.15 of the Credit Agreement, and
the calculations of such covenant compliance set forth on Annex A hereto are
based upon such Financial Statements, are true and correct and reflect all
applicable Financial Statement Adjustments, if any.
8. The Financial Statements accompanying this Compliance
Certificate (including the related schedules and notes with respect to audited
Financial Statements) present fairly, in all material respects, the consolidated
and combined financial position of the Borrowers and the Restricted Subsidiaries
for the [fiscal quarter] [fiscal year] ended ______________, and the
consolidated and combined results of their operations and their consolidated and
combined cash flows for the period set forth therein and have been prepared in
accordance with GAAP consistently applied throughout the period involved
(subject, in the case of interim Financial Statements, to normal year-end
adjustments).
9. As at ________________, no Borrower or any Restricted
Subsidiary then had any outstanding Indebtedness to any Person or any material,
individually or in the aggregate, obligations pursuant to any Guaranty,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment (including, without limitation, any Interest
Rate Protection Agreement or foreign currency swap or exchange transaction), or
any material, individually or in the aggregate, unrealized or anticipated loss,
not reflected in accordance with GAAP on the balance sheet included in such
Financial Statements or in the notes related thereto in such Financial
Statements.
IN WITNESS WHEREOF, the undersigned has executed and delivered
this Compliance Certificate as of the date set forth below.
CHELSEA COMMUNICATIONS, INC.,
NORTHEAST CABLE, INC.,
KITTANNING CABLEVISION, INC.
By:
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: Kittanning Cablevision, Inc.,
its General Partner
By:
Name:
Title:
Date:
<PAGE>
ANNEX A
1. SECTION 7.1(a) - SENIOR FUNDED DEBT RATIO
Senior Funded Debt Ratio = Senior Funded Debt/Annualized Operating Cash Flow
= ______________/_________________ = ______ to 1.00
Period Ratio
Must Not Exceed:
Closing Date through March 31, 1997 6.50 to 1.00
April 1, 1997 through September 30, 1997 6.25 to 1.00
October 1, 1997 through June 30, 1998 6.00 to 1.00
July 1, 1998 through December 31, 1998 5.75 to 1.00
January 1, 1999 through June 30, 1999 5.50 to 1.00
July 1, 1999 through December 31, 1999 5.25 to 1.00
January 1, 2000 through June 30, 2000 5.00 to 1.00
July 1, 2000 through June 30, 2001 4.75 to 1.00
July 1, 2001 through June 30, 2002 4.50 to 1.00
July 1, 2002 and Thereafter 4.00 to 1.00
Supporting Calculations:
A. Calculation of Senior Funded Debt as at ____________:
Senior Funded Debt:
Loans and Letters of Credit outstanding __________
PLUS Indebtedness of the Borrowers and the Restricted
Subsidiaries consisting of secured purchase money
Indebtedness incurred by any Borrower or any
Restricted Subsidiary in the ordinary course of
business __________
(A) Total Amount of Senior Indebtedness: __________
Excess Cash Balance calculation:
Cash and Cash Equivalents __________
(B) Excess Cash Balance: __________
(C) Senior Funded Debt = (A) MINUS (B) __________
B. Calculation of Annualized Operating Cash Flow for the most recent
fiscal quarter covered by Financial Statements:
Operating Cash Flow - Operations (exclusive of income
attributable to Acquisitions and System Sales during such fiscal
quarter):
(1) Net Income (Loss) (exclusive of cash amounts from
Affiliates) __________
PLUS, to the extent deducted in determining Net Income:
interest expense __________
Management Fees __________
income taxes __________
depreciation __________
amortization __________
other non-cash expenses __________
MINUS, to the extent included in determining Net Income:
all income and gains and all fees, interest
income, dividends and distributions 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) __________
(A) Operating Cash Flow - Operations: __________
Operating Cash Flow - Acquisitions:1
(2) Net Income (Loss) attributable to Acquisition, [insert
Name of System] (exclusive of cash amounts from
Affiliates) __________
PLUS, to the extent deducted in determining such Net
Income:
interest expense __________
Management Fees __________
income taxes __________
depreciation __________
amortization __________
other non-cash expenses __________
MINUS, to the extent included in determining such Net
Income:
all income and gains and all fees, interest
income, dividends and distributions 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) __________
1 Include on an attached schedule calculations for each System acquired
during such quarter.
(3) Operating Cash Flow - Acquistion:
(B) Operating Cash Flow attributable to Acquisitions ________
Operating Cash Flow - System Sales:2
(4) Net Income (Loss) attributable to sold System, [insert
Name of System] (exclusive of cash amounts from
Affiliates) __________
PLUS, to the extent deducted in determining such Net
Income:
interest expense __________
Management Fees __________
income taxes __________
depreciation __________
amortization __________
other non-cash expenses __________
MINUS, to the extent included in determining Net Income:
all income and gains and all fees, interest
income, dividends and distributions 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) __________
(B) Operating Cash Flow attributable to sold Systems ________
(C) Total Operating Cash Flow = (A) + (B) - (C) ________
(D) Annualized Operating Cash Flow = (D) multiplied by 4 ____
2 Include on an attached schedule calculations for each System sold during
such quarter.
2. SECTION 7.1(b) - INTEREST EXPENSE COVERAGE
Interest Expense Coverage = Operating Cash
Flow/Interest Expense = 2A (see
below) / 2B (see below)
= / = _____ 1.00
Period Ratio
Must not be less than:
Closing Date through 3/31/97 1.625 to 1.00
4/1/97 through 3/31/98 1.750 to 1.00
Thereafter 2.000 to 1.00
Supporting Calculations:
A. Operating Cash Flow (see 1B(D) from above): __________
Calculation of Interest Expense:
interest expense paid in cash by the
Borrowers and the Restricted Subsidiaries
with respect to Senior Funded Debt __________
B. Interest Expense: __________
3. SECTION 7.1(c) - FIXED CHARGE COVERAGE
Fixed Charge Coverage =Operating Cash Flow/Fixed
Charges Ratio = 3A (see below) / 3B (see below)
= ___________/___________ = _____ 1.00
Must not be less than: 1.00 to 1.00
Supporting Calculations:
A. Operating Cash Flow for the immediately preceding
four fiscal quarters (from 1B(D) above and from
1B(D) of the 3 preceding Compliance Certificates
delivered by Borrowers): __________
Calculation of Fixed Charges:
Interest Expense (see 2B from above) __________
PLUS commitment fees in respect of Senior Funded Debt ______
PLUS Capital Expenditures __________
PLUS Management Fees __________
PLUS excess of aggregate amount of Revolving Credit Loans
outstanding at the beginning of the most recent quarter
covered by the Financial Statements over the Revolving
Credit Commitment scheduled to be in effect at the end
of such quarter __________
PLUS the aggregate amount of scheduled repayments
of the Term Loan __________
PLUS taxes paid by the Borrowers and the Restricted
Subsidiaries __________
B. Fixed Charges for the immediately preceding four fiscal
quarters __________
4. SECTION 7.1(d) - PRO FORMA DEBT SERVICE
Pro Forma Debt Service = Annualized Operating Cash
Flow/Pro Forma Debt Service = 4A (see below) /
4B (see below) =
= _____ 1.00
Must not be less than: 1.10 to 1.00
A. Annualized Operating Cash Flow (see 1B(E) from above): ______
B. Pro Forma Debt Service:3__________
5. SECTION 7.5(a) - ASSET SALES
System Cash Flow Percentage of each System sold during most recent
fiscal quarter covered by the Financial Statements:
I. System Cash Flow Percentage=
Operating Cash Flow from sold
System(s)/Operating Cash Flow,
in each case for 1, 2, 3 or 4
quarters immediately preceding
sale of System(s), multiplied by
100 = 5A (see below) / 5B (see
below) x 100 =
_____________/_____________ x 100 = ____%
Must be less than: 15%
II. Aggregate System Cash Flow Percentage of all Systems sold
subsequent
to the Closing Date: ____% (5I above) PLUS 5I of Compliance
Certificates dated __________ and ______________ = ____%
Must not exceed: 25%
3 Attach schedule detailing calculation.
Supporting Calculations:
A. Operating Cash Flow attributable to all Systems sold
during most recent quarter for most recent 1, 2, 3 or 4
quarter period subsequent to Closing Date prior to such
sale, as applicable pursuant to subsection 6.5(a) of
Credit Agreement:
See attached schedule for calculations for each quarter
based on formula set forth in 1B(5) above (Operating Cash
Flow - System Sales)
Fiscal quarter 1__________
Fiscal quarter 2__________
Fiscal quarter 3__________
Fiscal quarter 4__________
System Operating Cash Flow for such 1, 2, 3 or
4 quarter period: __________
B. Operating Cash Flow for most recent 1, 2, 3 or 4 quarter
period subsequent to Closing Date prior to such sale, as
applicable pursuant to subsection 6.5(a) of Credit
Agreement:
Fiscal quarter 1 (See 1B(D) of Compliance Certificate
dated ___________) __________
Fiscal quarter 2 (See 1B(D) of Compliance Certificate
dated ___________) __________
Fiscal quarter 3 (See 1B(D) of Compliance Certificate
dated ___________) __________
Fiscal quarter 4 (See 1B(D) of Compliance Certificate
dated ___________) __________
Operating Cash Flow for such 1, 2, 3 or 4 quarter
period: __________
6. SECTION 7.6 - RESTRICTED PAYMENTS
Restricted Payments made within 45 days after end of the two most recent
fiscal quarters covered by Financial Statements not funded with Capital
Contributions: __________
A. Senior Funded Debt to Annualized Operating Cash Flow Ratio prior
to such Restricted Payment:4
(1) Senior Funded Debt:
fiscal quarter 1 (see 1A(C) above) __________
fiscal quarter 2 (see 1A(C) of Compliance
Certificate dated __________) __________
(2) Annualized Operating Cash Flow:
fiscal quarter 1 (see 1B(E) above) __________
fiscal quarter 2 (see 1B(E) of Compliance
Certificate dated __________) __________
(3) Ratio prior to Restricted Payment = (1)/(2)
fiscal quarter 1: _____ to 1.00
fiscal quarter 2: _____ to 1.00
Must Not Exceed: 4.75 to 1.00
4 Calculated at the time of such Restricted Payment on the basis of
Financial Statements for the then two most recent fiscal quarters for
which the Lenders shall have received Financial Statements pursuant to
Section 6.1 of the Credit Agreement.
B. Senior Funded Debt to Annualized Operating Cash Flow Ratio after
such Restricted Payment:
(1) Senior Funded Debt:
fiscal quarter 1 (see 1A(C) above) PLUS the
Restricted Payment __________
fiscal quarter 2 (see 1A(C) of Compliance
Certificate dated __________) PLUS the
Restricted Payment __________
(2) Annualized Operating Cash Flow:
fiscal quarter 1 (see 1B(E) above) __________
fiscal quarter 2 (see 1B(E) of Compliance
Certificate dated __________) __________
(3) Ratio after Restricted Payment = (1)/(2)
fiscal quarter 1: _____ to 1.00
fiscal quarter 2: _____ to 1.00
Must Not Exceed: 4.75 to 1.00
7. SECTION 7.7(a) - ACQUISITIONS
Aggregate purchase price of Acquisitions made subsequent to
the Closing Date pursuant to 7.7(a):__________
Must be less than: $130,000,000
8. SECTION 7.7(c)) - RESTRICTED INVESTMENTS
Restricted Investments made within 45 days after end of the two most
recent fiscal quarters not funded with Capital Contributions __________
A. Senior Funded Debt to Annualized Operating Cash Flow
Ratio prior to such Restricted Investment:5
(1) Senior Funded Debt:
fiscal quarter 1 (see 1A(C) above) __________
fiscal quarter 2 (see 1A(C) of Compliance
Certificate dated ___________) __________
(2) Annualized Operating Cash Flow:
fiscal quarter 1 (see 1B(E) above) __________
fiscal quarter 2 (see 1B(E) of Compliance
Certificate dated ___________) __________
(3) Ratio prior to Restricted Investment = (1)/(2)
fiscal quarter 1: _____ to 1.00
fiscal quarter 2: _____ to 1.00
Must Not Exceed: 4.75 to 1.00
5 Calculated at the time of such Restricted Investment on the basis of
Financial Statements for the then two most recent fiscal quarters for
which the Lenders shall have received Financial Statements pursuant to
Subsection 6.1 of the Credit Agreement.
B. Senior Funded Debt to Annualized Operating Cash Flow
Ratio after such Restricted Investment:
(1) Senior Funded Debt:
fiscal quarter 1 (see 1A(C) above) PLUS the
Restricted Investment__________
fiscal quarter 2 (see 1A(C) of Compliance
Certificate dated ___________) PLUS the
Restricted Investment__________
(2) Annualized Operating Cash Flow:
fiscal quarter 1 (see 1B(E) above) __________
fiscal quarter 2 (see 1B(E) of Compliance
Certificate dated ___________) __________
(3) Ratio after Restricted Investment = (1)/(2)
fiscal quarter 1: _____ to 1.00
fiscal quarter 2: _____ to 1.00
Must Not Exceed: 4.75 to 1.00
9. SECTION 7.15 - MANAGEMENT FEES
Total Management Fees paid during most recent fiscal quarter
covered by the Financial Statements (exclusive of Management
Fees funded with Capital Contributions): __________
Must not exceed gross revenues for such fiscal quarter, multiplied by
5%= ______ x 5%= __________
10. AVAILABLE CAPITAL CONTRIBUTIONS
Capital Contributions during most recent fiscal quarter:6__________
Aggregate Capital Contributions subsequent to Closing Date:6 ______
Calculation of uses of Capital Contributions:
6 Attach schedule detailing the dates and amounts of each such Capital
Contribution.
A. Capital Expenditures
(1) Capital Expenditures during most recent fiscal quarter
funded with Capital Contributions: __________
(2) Aggregate Capital Expenditures subsequent to
Closing Date funded with Capital Contributions: ______
B. Restricted Payments:
(1) Restricted Payments during most recent fiscal quarter
funded with Capital Contributions __________
(2) Aggregate Restricted Payments subsequent to Closing
Date funded with Capital Contributions:__________
C. Restricted Investments:
(1) Restricted Investments during most recent fiscal quarter
funded with Capital Contributions: __________
(2) Aggregate Restricted Investments subsequent to Closing
Date funded with Capital Contributions: __________
D. Management Fees:
(1) Management Fees during most recent fiscal quarter
funded with Capital Contributions: __________
(2) Aggregate Management Fees subsequent to Closing Date
funded with Capital Contributions: __________
E. Aggregate uses of Capital Contributions
subsequent to Closing Date = A(2) + B(2) + C(2) + D(2) =________
F. Calculation of Available Capital Contributions:
Aggregate Capital Contributions subsequent to Closing Date
MINUS aggregate uses of Capital Contributions subsequent
to Closing Date =__________
<PAGE>
EXHIBIT E
GUARANTY AGREEMENT
GUARANTY AGREEMENT, dated as of April ___, 1996, made by each of
the partnerships and/or corporations that are signatories hereto (the
"Guarantors"), in favor of TORONTO DOMINION (TEXAS), INC., as Administrative
Agent (in such capacity, the "Administrative Agent") for the several Lenders
from time to time parties to the Credit Agreement, dated of even date herewith,
among Chelsea Communications, Inc., a Delaware corporation, Northeast Cable,
Inc., a Delaware corporation, and Kittanning Cablevision, Inc., a Delaware
corporation and Robinson/Plum Cablevision, L.P., a Pennsylvania limited
partnership, as the Borrowers, such Lenders, the Agents identified therein, and
Toronto Dominion (Texas), Inc., as Administrative Agent (as amended,
supplemented and otherwise modified from time to time, the "Credit Agreement").
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 and to issue Letters of Credit
on behalf of such Borrowers upon the terms and subject to the conditions set
forth therein;
WHEREAS, the Borrowers are members of an affiliated group of
corporations and partnerships that include each Guarantor;
WHEREAS, the Borrowers and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the Loans and the issuance of Letters of Credit;
WHEREAS, the proceeds of the Loans and Letters of Credit may be
used in part to enable the Borrowers to make valuable transfers to and/or
provide credit support for the Guarantors in connection with the operation of
their respective businesses;
WHEREAS, it is a condition precedent to the effectiveness of the
Credit Agreement and the obligation of the Lenders to make their respective
Loans to the Borrowers and to issue Letters of Credit under the Credit Agreement
that each of the Guarantors shall have executed and delivered this Guaranty
Agreement to the Administrative Agent for the benefit of the Lenders and the
Agents.
NOW, THEREFORE, for and in consideration of the premises and to
induce the Administrative Agent, the Lenders and the other Agents to enter into
the Credit Agreement and to induce the Lenders to make their respective Loans to
the Borrowers and to issue Letters of Credit under the Credit Agreement, the
Guarantors hereby agree with the Administrative Agent, for the benefit of the
Lenders and the Agents, as follows:
11. 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. For purposes of this
Guaranty Agreement, the term "Lender" shall include any Affiliate of any Lender
which has entered into an Interest Rate Protection Agreement with any Borrower
and the term "Loan Documents" shall include any Interest Rate Protection
Agreement between any Lender (including any such Affiliate of a Lender) and any
Borrower.
(b) As used herein, "Guaranty Agreement" means this Guaranty
Agreement, as amended, supplemented and otherwise modified from time to time.
(c) As used herein, "Obligations" means the Obligations (as
defined in the Credit Agreement), and all renewals, refundings, restructurings
and other refinancings thereof, including increases in the amount thereof.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guaranty Agreement shall refer to this Guaranty
Agreement as a whole and not to any particular provision of this Guaranty
Agreement, and section and paragraph references are to this Guaranty Agreement
unless otherwise specified.
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
12. Guarantee. (a) Subject to the provisions of paragraph 2(b),
each of the Guarantors hereby, jointly and severally, unconditionally and
irrevocably, guarantees to the Administrative Agent, for the benefit of the
Lenders, the Agents and their respective successors, endorsees, transferees and
assigns, the prompt and complete payment and performance by the Borrowers when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors.
(c) Each Guarantor further agrees to pay any and all reasonable
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) which may be paid or incurred by the Administrative Agent, any other
Agent or any Lender in enforcing, or obtaining advice of counsel in respect of,
any rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, such Guarantor
under this Guaranty Agreement. This Guaranty Agreement shall remain in full
force and effect until the Obligations are paid in full, the Commitments, all
Letters of Credit, the Credit Agreement and the other Loan Documents are
terminated, notwithstanding that from time to time prior thereto the Borrowers
may be free from any Obligations.
(d) Each Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing this Guaranty Agreement or affecting the rights and
remedies of any Agent or any Lender hereunder.
(e) No payment or payments made by any Borrower, any of the
Guarantors, any other guarantor or any other Person or received or collected by
any Agent or any Lender from any Borrower, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment or payments other than payments made by
such Guarantor in respect of the Obligations or payments received or collected
from such Guarantor in respect of the Obligations, remain liable for the
Obligations up to the maximum liability of such Guarantor hereunder until the
Obligations are paid in full, the Commitments, any Letters of Credit, the Credit
Agreement and the other Loan Documents are terminated.
(f) Each Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to any Agent or any Lender on account of
its liability hereunder, it will notify the Administrative Agent in writing that
such payment is made under this Guaranty Agreement for such purpose.
13. Right of Contribution. Each Guarantor shall be entitled to
seek and receive contribution from and against any other Guarantor hereunder or
at law. Each Guarantor reserves its right of contribution which shall be subject
to the terms and conditions of Section 5 hereof. The provisions of this Section
shall in no respect limit the obligations and liabilities of any Guarantor to
the Agents and the Lenders, and each Guarantor shall remain liable to the Agents
and the Lenders for the full amount guaranteed by such Guarantor hereunder.
14. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, each Guarantor hereby irrevocably
authorizes each Lender and each Agent at any time and from time to time without
notice to such Guarantor or any other Guarantor, any such notice being expressly
waived by each Guarantor, to set-off and appropriate and apply 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 such Agent to or for the
credit or the account of such Guarantor, or any part thereof in such amounts as
such Lender may elect, against and on account of the obligations and liabilities
of such Guarantor to such Lender or such Agent hereunder and claims of every
nature and description of such Lender or such Agent against such Guarantor, in
any currency, whether arising hereunder, under the Credit Agreement, any Note,
any Loan Documents, any Interest Rate Protection Agreement entered into by any
Borrower with any Lender or otherwise, as such Lender or such Agent may elect,
whether or not the Administrative Agent, any Lender or any other Agent has made
any demand for payment and although such obligations, liabilities and claims may
be contingent or unmatured. The Administrative Agent and each Lender and each
other Agent shall notify such Guarantor promptly of any such set-off and the
application made by the Administrative Agent or such Lender or other Agent,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Administrative Agent and each
Lender and each other Agent under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which the
Administrative Agent or such Lender or such other Agent may have.
15. Subrogation. No Guarantor will exercise any rights which it
may acquire by way of subrogation under this Guaranty Agreement, by any payment
made hereunder or otherwise, nor shall any Guarantor seek or be entitled to seek
any contribution or reimbursement from the Borrowers or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Agents and the Lenders by the Borrowers on account of the Obligations are
paid in full, the Commitments, any Letters of Credit, the Credit Agreement and
the other Loan Documents are terminated. If any amounts shall be paid to any
Guarantor on account of such subrogation, contribution or reimbursements rights
at any time when all of the Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the Administrative Agent,
the Lenders and the other Agents, segregated from other funds of the Guarantors,
and shall, forthwith upon receipt by such Guarantor, be turned over to the
Administrative Agent in the exact form received by such Guarantor (duly endorsed
by such Guarantor to the Administrative Agent, if required), to be applied
against the Obligations, whether matured or unmatured, as provided in the Credit
Agreement.
16. Amendments, etc. with Respect to the Obligations; Waiver of
Rights. Each Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of the
Obligations made by the Administrative Agent, any other Agent or any Lender may
be rescinded by such party and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released,
and the Credit Agreement, any other Loan Documents or any Interest Rate
Protection Agreement entered into by any Borrower with any Lender and any other
documents executed and delivered in connection therewith may be amended
modified, supplemented or terminated, in whole or in part, from time to time,
and any collateral security, guarantee or right of offset at any time existing
for the payment of the Obligations may be sold, exchanged, waived, surrendered
or released. No Agent or Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for this Guaranty Agreement or any property subject thereto. When
making any demand hereunder against any of the Guarantors, any Agent or any
Lender may, but shall be under no obligation to, make a similar demand on the
Borrowers or any other Guarantor or guarantor, and any failure by any Agent or
any Lender to make any such demand or to collect any payments from the Borrowers
or any such other Guarantor or guarantor or any release of the Borrowers or such
other Guarantor or guarantor shall not relieve any of the Guarantors in respect
of which a demand or collection is not made or any of the Guarantors not so
released of their several obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of any Agent or any Lender against any of the Guarantors. For the purposes
hereof, "demand" shall include the commencement and continuance of any legal
proceedings.
17. Guaranty Agreement Absolute and Unconditional. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Obligations and notice of or proof of reliance by any Agent or any Lender
upon this Guaranty Agreement or acceptance of this Guaranty Agreement, and the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guaranty Agreement; and all dealings between any Borrower and any of
the Guarantors, on the one hand, and the Agents and the Lenders, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon this Guaranty Agreement. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrowers or any of the Guarantors with respect to the Obligations.
Each Guarantor understands and agrees that this Guaranty Agreement shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to, and hereby irrevocably waives any defenses it may now or
hereafter have in any way relating to, the following: (a) the validity,
regularity or enforceability of the Credit Agreement, any Note, any other Loan
Document or any Interest Rate Protection Agreement entered into by any Borrower
with any Lender, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by any Agent or any Lender (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrowers or any Guarantor against
any Agent or any Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Borrowers or such Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrowers for the Obligations, or of such Guarantor under this
Guaranty Agreement, in bankruptcy or in any other instance. When pursuing its
rights and remedies hereunder against any Guarantor, any Agent and any Lender
may, but shall be under no obligation to, pursue such rights and remedies as it
may have against the Borrowers or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any failure by any Agent or any Lender to pursue such other rights
or remedies or to collect any payments from the Borrowers, any other Guarantor
or any such other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the
Borrowers, any other Guarantor or any such other Person or any such collateral
security, guarantee or right of offset, shall not relieve such Guarantor of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Agents and the
Lenders against such Guarantor. This Guaranty Agreement shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon each Guarantor and the successors and assigns thereof, and shall
inure to the benefit of the Agents and the Lenders, and their respective
successors, endorsees, transferees and assigns, until all the Obligations and
the obligations of each Guarantor under this Guaranty Agreement shall have been
satisfied by payment in full, the Commitments, any Letters of Credit, the Credit
Agreement and the other Loan Documents shall be terminated, notwithstanding that
from time to time during the term of the Credit Agreement the Borrowers may be
free from any Obligations.
18. Reinstatement. This Guaranty Agreement shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by any Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Borrower or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, any Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
19. Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars and immediately available funds at the office of the
Administrative Agent located at [909 Fannin, Suite 1700, Houston, Texas 77010].
20. Representations and Warranties. Each Guarantor hereby
represents and warrants that:
(a) such Guarantor is duly organized, validly existing and (if such
Guarantor is a corporation) in good standing under the laws of the jurisdiction
of its organization and has the power and authority and the legal right to own
and operate property, to lease the property such Guarantor operates and to
conduct the business in which such Guarantor is currently engaged;
(b) such Guarantor has the power and authority and the legal right to
execute and deliver, and to perform its obligations under, this Guaranty
Agreement and the other Loan Documents to which it is a party, and has taken all
necessary action to authorize the execution, delivery and performance of this
Guaranty Agreement and each of the other Loan Documents to which it is a party;
(c) this Guaranty Agreement and each of the other Loan Documents to
which it is a party constitutes a legal, valid and binding obligation of such
Guarantor enforceable in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles (whether enforcement is sought by proceedings in
equity or at law);
(d) the execution, delivery and performance of this Guaranty Agreement
and the other Loan Documents to which it is a party will not violate any
provision of any Requirement of Law or Contractual Obligation of such Guarantor
and will not result in or require the creation or imposition of any Lien on any
of the properties or revenues of such Guarantor pursuant to any Requirement of
Law or Contractual Obligation of the Guarantor;
(e) 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 Guarantor) is required in connection with the execution, delivery,
performance, validity or enforceability of this Guaranty Agreement or any other
Loan Document to which it is a party;
(f) no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of such
Guarantor, threatened by or against such Guarantor or against any of such
Guarantor's properties or revenues (1) with respect to this Guaranty Agreement
or any other Loan Document to which it is a party or any of the transactions
contemplated hereby or thereby or (2) which could reasonably be expected to have
a Material Adverse Effect;
(g) such Guarantor 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 of any nature whatsoever except as permitted
under the Credit Agreement;
(h) that the representation contained in Section 4.1 of the Credit
Agreement, insofar as such representation applies to such Guarantor, is true and
correct; and
(i) such Guarantor has neither received nor is aware of any notice of a
Lien on or other rights with respect to any Capital Securities of such Guarantor
other than rights created by the Security Documents.
Each Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by such Guarantor on the date of
each borrowing by the Borrowers under the Credit Agreement on and as of such
date of borrowing as though made hereunder on and as of such date.
21. Covenants. Each Guarantor hereby covenants and agrees with
each Agent and each Lender that, from and after the date of this Guaranty
Agreement until the Obligations are paid in full, the Commitments, any Letters
of Credit, the Credit Agreement and the other Loan Documents are terminated,
such Guarantor shall not take, and shall refrain from taking, any action that
would result in a violation of any of the covenants of the Borrowers contained
in Sections 6 and 7 of the Credit Agreement.
22. Authority of Administrative Agent. Each Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guaranty Agreement with respect to any action taken by the
Administrative Agent or the exercise or non-exercise by the Administrative Agent
of any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Guaranty Agreement shall, as among
the Administrative Agent and the Lenders and the other Agents, 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
such Guarantor, the Administrative Agent shall be conclusively presumed to be
acting as agent for the Lenders and the Agents with full and valid authority so
to act or refrain from acting, and no Guarantor shall be under any obligation,
or entitlement, to make any inquiry respecting such authority.
23. Notices. All notices, requests and demands to or upon any
Agent, any Lender or any Guarantor 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:
(a) if to the Administrative Agent, at its address or transmission
number for notices provided in Section 10.2 of the Credit Agreement;
(b) if to any Lender or any Agent other than the Administrative Agent,
at its address or transmission number for notices provided in Annex A to the
Credit Agreement, as supplemented from time to time in connection with
assignments pursuant to Section 10.6 of the Credit Agreement; and
(c) if to any Guarantor, at its address or transmission number for
notices set forth under its signature below.
Each Agent, each Lender and each Guarantor may change its address
and transmission numbers for notices by notice in the manner provided in this
Section.
24. Counterparts. This Guaranty Agreement may be executed by one
or more of the Guarantors on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the counterparts of
this Guaranty Agreement signed by all the Guarantors shall be lodged with the
Administrative Agent.
25. Severability. Any provision of this Guaranty 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. Integration. This Guaranty Agreement represents the
agreement of each Guarantor with respect to the subject matter hereof and there
are no promises or representations by any Agent or any Lender relative to the
subject matter hereof not reflected herein.
27. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Guaranty Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by each Guarantor and the Administrative Agent, provided that any
provision of this Guaranty Agreement may be waived by the Administrative Agent,
the Lenders and the other Agents in a letter or agreement executed by the
Administrative Agent or by telecopy or facsimile transmission from the
Administrative Agent.
(b) No Agent or Lender shall by any act (except by a written
instrument pursuant to paragraph 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 any 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 any 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 such 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.
28. Section Headings. The section headings used in this
Guaranty Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
29. Successors and Assigns. This Guaranty Agreement shall be
binding upon the successors and assigns of each Guarantor and shall inure to the
benefit of the Agents and the Lenders and their successors and assigns, provided
that no Guarantor may assign any of its rights or obligations under this
Guaranty Agreement without the prior written consent of the Administrative Agent
and any such purported assignment shall be null and void.
30. Submission To Jurisdiction; Waivers. Each Guarantor
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guaranty 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 nonexclusive 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 such Guarantor at its
address set forth under its signature below or at such other address of which
the Administrative Agent shall have been notified pursuant to Section 13;
(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 or punitive damages.
31. WAIVERS OF JURY TRIAL. EACH GUARANTOR HEREBY KNOWINGLY AND
INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY, WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTY AGREEMENT OR ANY OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY AND FOR ANY COUNTERCLAIM THEREIN.
32. GOVERNING LAW. THIS GUARANTY 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, WITHOUT GIVING EFFECT TO ITS CONFLICT OF
LAW PRINCIPLES.
33. Additional Guarantors. Any Person that becomes a Restricted
Subsidiary subsequent to the Closing Date and was not a Guarantor under this
Guaranty Agreement at the time of the initial execution hereof shall become a
Guarantor hereunder by executing and delivering to the Administrative Agent a
Supplement in the form attached hereto as Exhibit A. Any such Restricted
Subsidiary shall thereafter be deemed a Guarantor for all purposes under this
Guaranty Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused this
Guaranty Agreement to be duly executed and delivered by its duly authorized
officer as of the day and year first above written.
AURORA CABLE VISION, INC.,
BETTER TV, INC. OF BENNINGTON,
CAMPBELL COMMUNICATIONS, INC.,
CHAUTAUQUA COUNTY CABLE VISION, INC.,
HARBOR VUE CABLE TV, INC.,
HOOSICK CABLEVISION, INC.,
KALAMAZOO COUNTY CABLEVISION, INC.,
MASS. CABLEVISION, INC.,
MT. LEBANON CABLEVISION, INC.,
MULTI-CHANNEL T.V. CABLE COMPANY,
PERICLES COMMUNICATIONS CORPORATION,
RIGPAL COMMUNICATIONS, INC.,
SOUTH SHORE CABLEVISION, INC.,
UPPER ST. CLAIR CABLEVISION, INC.,
VERMILION CABLE COMMUNICATIONS, INC.,
MOUNTAIN CABLE COMMUNICATIONS
CORPORATION
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Guaranty
Agreement to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
ADELPHIA CABLEVISION ASSOCIATES, L.P.
By: CHELSEA COMMUNICATIONS, INC.,
its General Partner
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Guaranty
Agreement to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
MOUNTAIN CABLE COMPANY
By: PERICLES COMMUNICATIONS
CORPORATION, its Managing General Partner
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Guaranty
Agreement to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
THREE RIVERS CABLE ASSOCIATES, L.P.
By: MT. LEBANON CABLEVISION, INC.,
its General Partner
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
Telecopy: (814) 274-8631
<PAGE>
EXHIBIT A
ADDITIONAL SUBSIDIARIES SUPPLEMENT
SUPPLEMENT, dated to the Guaranty Agreement, dated as of April
__, 1996 (as amended, supplemented and otherwise modified, the "Guaranty
Agreement"), made by the Restricted Subsidiaries of each of Chelsea
Communications, Inc., a Delaware corporation ( Chelsea ), Northeast Cable, Inc.,
a Delaware corporation ( Northeast ), Kittanning Cablevision, Inc., a Delaware
corporation ("Kittanning") and Robinson/Plum Cablevision, L.P., a Pennsylvania
limited partnership ( Robinson ; together with Chelsea, Northeast and
Kittanning, the "Borrowers"), from time to time parties thereto (collectively,
the "Guarantors").
W I T N E S S E T H:
WHEREAS, the Borrowers entered into that certain Credit
Agreement, dated as of April ___, 1996 (the Credit Agreement ), among the
several lenders (the Lenders ) from time to time parties thereto, certain of
which are agents thereunder (collectively, the Agents ) and Toronto Dominion
(Texas), Inc., as the Administrative Agent (herein so called) for the Lenders;
and
WHEREAS, as it is a condition under the Credit Agreement that all
Restricted Subsidiaries of the Borrowers shall guaranty the Obligations; and
WHEREAS, the Guaranty Agreement provides that any Restricted
Subsidiary of any Borrower, although not a Guarantor thereunder at the time of
the initial execution thereof, may become a Guarantor under the Guaranty
Agreement upon the delivery to the Administrative Agent of a supplement in
substantially the form of this Supplement; and
WHEREAS, the undersigned was not a Restricted Subsidiary on the
Closing Date and, therefore, was not a party to the Guaranty Agreement but now
desires to become a Guarantor thereunder;
NOW, THEREFORE, for and in consideration of the premises and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by all of the provisions of the
Guaranty Agreement applicable to a Guarantor thereunder and agrees that it
shall, on the date this Supplement is accepted by the Administrative Agent,
become a Guarantor, for all purposes of the Guaranty 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 at the other times set forth in the Guaranty Agreement.
Unless otherwise defined herein, capitalized terms which are defined in
the Credit Agreement are used herein as so defined.
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.
[NAME OF RESTRICTED SUBSIDIARY]
By:
Name:
Title:
Address for Notices:
Attention:
Telecopy:
<PAGE>
EXHIBIT F
MANAGEMENT SUBORDINATION AGREEMENT
MANAGEMENT SUBORDINATION AGREEMENT dated as of April __, 1996 (as
amended, supplemented and otherwise modified from time to time, this
"Agreement"), among CHELSEA COMMUNICATIONS, INC., a Delaware corporation
("Chelsea"), NORTHEAST CABLE, INC., a Delaware corporation ("Northeast"),
KITTANNING CABLEVISION, INC., a Delaware corporation ("Kittanning") and
ROBINSON/PLUM CABLEVISION, L.P., a Pennsylvania limited partnership ( Robinson ;
together with Chelsea, Northeast and Kittanning, the "Borrowers"), each
subsidiary of any Borrower party hereto (together with the Borrowers, the
"Companies"), Adelphia Cablevision, Inc., a Pennsylvania corporation ( ACI ),
Adelphia Communications Corporation, a Delaware corporation ( ACC ) and Adelphia
Cable T.V., Inc., a Pennsylvania corporation ( ACTV ; together with ACI and ACC,
the Managers ), and TORONTO DOMINION (TEXAS), INC., as Administrative Agent (in
such capacity, the "Administrative Agent") for the Lenders from time to time
parties to the Credit Agreement, dated as of April ___, 1996, among the
Borrowers, such Lenders, the Agents identified therein and Toronto Dominion
(Texas), Inc., as Administrative Agent (as amended, supplemented and otherwise
modified from time to time, the "Credit Agreement").
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 and to issue Letters of Credit
upon the terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the various Management Services Agreements
for Managed Systems, more particularly described in Exhibit A attached hereto
and made a part hereof, as the same may be amended, supplemented and otherwise
modified from time to time to the extent permitted by Section 7.8 of the Credit
Agreement (collectively, the "Management Agreements"), the Managers have agreed
to render management, supervisory and other services to the Companies, and the
Companies have agreed to pay Management Fees (as defined in the Credit
Agreement) as provided in the Management Agreements to the Managers; 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 and to issue Letters of Credit under the Credit Agreement
that the Managers shall have agreed to subordinate their rights to receive
payment of Management Fees or any other compensation under each Management
Agreement as hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises and to
induce the Agents and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Loans to the Borrowers and to issue
Letters of Credit under the Credit Agreement, each Company and each Manager
hereby agree with the Administrative Agent, for the benefit of the Lenders and
the Agents, as follows:
34. 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. For purposes of this Agreement, the term "Lender"
shall include any Affiliate of any Lender which has entered into an Interest
Rate Protection Agreement with any Borrower, and the term "Loan Documents" shall
include any Interest Rate Protection Agreement between any Lender (including
such an Affiliate of a Lender) and any Borrower.
(b) For purposes of this Agreement, the following terms shall
have the following meanings:
"Obligations": the Obligations (as defined in the Credit Agreement).
"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": (a) the Obligations, and (b) all renewals,
refundings, restructurings and other refinancings thereof, including increases
in the amount thereof.
"Subordinated Indebtedness": Management Fees and similar fees (howsoever
designated) from time to time payable under the Management Agreements and any
and all other amounts payable in connection therewith, other than reimbursement
for out-of-pocket expenses.
(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.
35. 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 hereof) to the prior payment in full of all Senior
Indebtedness to the extent and in the manner hereinafter set forth.
36. 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 in cash and the Commitments,
any Letters of Credit, the Credit Agreement and the other Loan Documents shall
have been terminated, the Managers will not take, retain, 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 guaranty of the whole or any part of the Subordinated Indebtedness;
provided, that, subject to Section 5 below, each Company may make and the
Managers may receive Management Fees permitted to be paid pursuant to Section
7.15 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 and the
Agents 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 the Agents and each Lender and each Agent 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 and
the other Agents pursuant to this Agreement in enforcing the rights of the
Lenders and the other Agents, 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 such Manager to the Administrative Agent to be
used to prepay Loans and other Obligations outstanding under the Credit
Agreement.
37. Limitations on Subordinated Indebtedness. Each Manager agrees
that the Subordinated Indebtedness shall be unsecured, and that, so long as any
of the Senior Indebtedness shall remain unpaid in cash or the Commitments, any
Letters of Credit, the Credit Agreement or any other Loan Document shall not
have been terminated, if at any time a Manager shall be in possession of any
Collateral, such Manager shall promptly deliver such Collateral to the
Administrative Agent and until such delivery hold such Collateral in trust for
the Lenders and the Agents. Until such time as the Senior Indebtedness has been
paid in full in cash and the Commitments, any Letters of Credit, the Credit
Agreement and all other Loan Documents shall have been terminated, the Managers
agree not to exercise any of their respective rights under any document,
instrument or agreement, or to accelerate or collect the obligations of any of
the Companies, or to realize upon any of the Collateral or any other assets of
any of the Companies or to attach, levy upon or execute against any of the
Collateral or any of the other assets of any of the Companies, provided,
however, that the Managers shall be entitled to the payments provided for in
Section 3 so long as the conditions to such payments set forth in Section 3 have
been satisfied.
38. Subordinated Indebtedness Subordinated to Prior Payment of
All Senior Indebtedness on Reorganization; Sale of any Company; etc. 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 and the Agents shall be entitled to receive payment in
full in cash 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 and the Agents, 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 in cash, after giving effect to any concurrent payment or distribution to
the Lenders or the Agents; and
(c) in the event that, notwithstanding the foregoing provisions of this
Section 5, any Manager shall have received any payment or distribution with
respect to Subordinated Indebtedness contrary to the foregoing provisions of
this Section 5, 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 and the Agents 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 or the Agents.
In the event of a Reorganization, if a 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, any other Agent or any Lender may,
as an attorney-in-fact for such Manager, file any claim, proof of claim or other
instrument of similar character on behalf of such Manager, and each Manager
hereby appoints the Administrative Agent, any such other Agent and any such
Lender as an attorney-in-fact for the Managers, to so file any claim, proof of
claim or such other instrument of similar character. Each Manager ratifies all
that the Administrative Agent, any such other Agent and any such Lender, as said
attorney-in-fact, shall lawfully do or cause to be done by virtue hereof and not
in contravention of the terms hereof. The powers of attorney granted in this
Section 5 are powers coupled with an interest and shall be irrevocable.
Upon any distribution of assets of any Company referred to in
this Agreement, the Managers 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 and the Agents, 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 and the Agents to
receive payment in full of the Senior Indebtedness in accordance with this
Agreement.
39. Managers to be Subrogated to Rights of Holders of Senior
Indebtedness. Subject to the payment in full in cash of all Senior Indebtedness,
each Manager shall be subrogated to the rights of the Lenders and the Agents 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 respective
Subordinated Indebtedness of such Manager shall be paid in full, and for
purposes of such subrogation, no payment or distribution to the Lenders and the
Agents of assets, whether in cash, property or securities, distributable to the
Lenders and the Agents under the provisions hereof to which a Manager would be
entitled except for the provisions of this Agreement, and no payment pursuant to
the provisions of this Agreement to the Lenders or the Agents by a Manager
shall, as between the relevant Company, its creditors other than the Lenders,
the Agents and 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 a Manager, on the one hand, and the Lenders and the Agents,
on the other hand.
40. Obligations of Each Company Unconditional. (a) Nothing
contained in this Agreement is intended to or shall relieve the obligations of
any Company to the Lenders, the Agents or the Managers 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, the Agents
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 and the Agents
hereunder, and all agreements and obligations of each Company and each Manager,
shall remain in full force and effect irrespective of, and each Company and each
Manager hereby irrevocably waives any defenses it may now or hereafter have in
any way relating to:
(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.
(b) 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 2, 3, 4 and
5, 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.
41. 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, provided,
however, that nothing contained in this Section 8 is intended to restrict the
right or obligation of any Company to make filings or registrations pursuant to
any Governmental Requirements.
42. 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.
43. Legend. Each Company and each Manager shall cause each note
issued by or to it, and any other document or instrument representing or
evidencing Subordinated Indebtedness to have affixed upon it a legend, including
in connection with the issuance of any new or replacement note with respect to
the transfer of such note or the reduction of the principal amount thereof,
which reads substantially as follows:
"This instrument is subject to the Management Subordination Agreement,
dated as of _________________, 1996, among Chelsea Communications, Inc., a
Delaware corporation, Northeast Cable, Inc., a Delaware corporation, Kittanning
Cablevision, Inc., a Delaware corporation and Robinson/Plum Cablevision, Inc., a
Pennsylvania limited partnership (the "Borrowers"), each subsidiary of any
Borrower party thereto, and Toronto-Dominion (Texas), Inc., as Administrative
Agent (in such capacity, the "Administrative Agent") for the Lenders from time
to time parties to the Credit Agreement dated as of _______________, 1996, among
the Borrowers, such Lenders, the Agents identified therein and Toronto Dominion
(Texas), Inc., as Administrative Agent (as amended, supplemented and otherwise
modified from time to time, the "Credit Agreement")."
44. 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 enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceeding in
equity or at law);
(iii) the execution, delivery and performance of this Agreement will
not violate any provision of any Requirement of Law 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 a
Manager), is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement, other than those identified on
Schedule 1 hereto, which have been obtained; and
(v) no Litigation is pending or, to its knowledge, threatened by or
against such Manager, with respect to this Agreement.
45. Successors; Continuing Effect. This Agreement is being
entered into for the benefit of, and shall be binding upon, the Lenders, the
Agents 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 the Managers shall not
transfer or assign any of their 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.
46. 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 Agents and the Lenders to exercise and enforce their
rights and remedies hereunder.
47. Expenses. Each Company jointly and severally agrees to pay to
the Lenders, upon demand, the amount of any and all reasonable expenses,
including, without limitation, the reasonable fees and expenses of counsel,
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 the Managers.
48. Notices; Amendments; etc. (a) All notices, requests and
demands to or upon the Administrative Agent, any Lender, any other 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 or any Borrower, at its address or
transmission number for notices provided in Section 10.2 of the Credit
Agreement;
(ii) if to any Lender or to any Agent other than the Administrative
Agent, at its address or transmission number for notices provided in Annex A to
the Credit Agreement, as supplemented from time to time in connection with
assignments pursuant to Section 10.6 of the Credit Agreement;
(iii) if to any Company (other than the Borrowers), at its address or
transmission number for notices provided in the Guaranty Agreement; and
(iv) if to any Manager, at its address or transmission number for
notices set forth under its signature below.
The Administrative Agent, each Lender, each other 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) This Agreement may be amended and the terms hereof may be
waived only with the written consent of the Administrative Agent, each Company
and each Manager. Any such amendment or waiver shall be binding upon the
Lenders, the Agents, each Company and each Manager.
49. 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.
50. 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 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 it at its address set
forth in Section 15 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(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; 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 or punitive damages.
51. WAIVER OF JURY TRIAL. EACH COMPANY, EACH MANAGER AND THE
ADMINISTRATIVE AGENT HEREBY KNOWINGLY AND INTENTIONALLY, 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.
52. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
BLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICT OF LAW PRINCIPLES.
53. Counterparts. This Agreement may be executed by one or
more of the parties hereto any number of counterparts (including by telecopy
transmission), and each such counterpart shall be deemed to be an original
instrument, but all such counterparts taken together shall constitute one and
the same instrument.
54. Integration. This Agreement and the other Loan Documents
represent the final agreement of the parties hereto with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by any Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
55. Replacement Managers. Any Affiliate of ACC (and, with the
approval of the Required Lenders, any other Person) may 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 B. Any such
Affiliate shall thereafter be deemed to be a "Manager" for all purposes under
this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Management
Subordination Agreement to be duly executed and delivered by their duly
authorized officers on the date and year first above written.
CHELSEA COMMUNICATIONS, INC.
By:
Name:
Title:
NORTHEAST CABLE, INC.
By:
Name:
Title:
KITTANNING CABLEVISION, INC.
By:
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: Kittanning Cablevision, Inc.,
General Partner
By:
Name:
Title:
BETTER TV, INC. OF BENNINGTON,
CAMPBELL COMMUNICATIONS, INC.,
CHAUTAUQUA COUNTY CABLE VISION,
INC.,
HARBOR VUE CABLE TV, INC.,
HOOSICK CABLEVISION, INC.,
MT. LEBANON CABLEVISION, INC.,
MULTI-CHANNEL T.V. CABLE
COMPANY,
RIGPAL COMMUNICATIONS, INC.,
SOUTH SHORE CABLEVISION, INC.,
UPPER ST. CLAIR CABLEVISION, INC.
By:
Name:
Title:
ADELPHIA CABLEVISION ASSOCIATES, L.P.
By: CHELSEA COMMUNICATIONS, INC.,
its General Partner
By:
Name:
Title:
MOUNTAIN CABLE COMPANY
By: PERICLES COMMUNICATIONS
CORPORATION, its Managing General Partner
By:
Name:
Title:
THREE RIVERS CABLE ASSOCIATES, L.P.
By: MT. LEBANON CABLEVISION, INC.,
its General Partner
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
Name:
Title:
<PAGE>
MANAGERS:
ADELPHIA CABLEVISION, INC.
By:
Name:
Title:
Address for Notices:
Telecopy:
ADELPHIA COMMUNICATIONS
CORPORATION
By:
Name:
Title:
Address for Notices:
Telecopy:
ADELPHIA CABLE T.V., INC.
By:
Name:
Title:
Address for Notices:
Telecopy:
<PAGE>
SCHEDULE 1
CONSENTS, AUTHORIZATIONS OR FILINGS REQUIRED
<PAGE>
EXHIBIT A
MANAGEMENT AGREEMENTS
1. Amended and Restated Management Services Agreement for Managed Systems made
as of the 11th day of March, 1988, by and between ACI and Adelphia Cablevision
Associates, L.P., a Pennsylvania limited partnership.
2. Amended and Restated Management Services Agreement for Managed Systems
made as of the 11th day of March,
1988, by and between ACI and Better TV, Inc. of Bennington, a Vermont
corporation.
3. Amended and Restated Management Services Agreement for Managed Systems made
as of the 11th day of March, 1988, by and between ACI and Campbell
Communications, Inc., a Massachusetts corporation.
4. Amended and Restated Management Services Agreement for Managed Systems made
as of the 11th day of March, 1988, by and between ACI and Chautauqua County
Cable Vision, Inc., a New York corporation.
5. Amended and Restated Management Services Agreement for Managed Systems made
as of the 11th day of March, 1988, by and between ACI and Harbor Vue Cable TV,
Inc., a New York corporation.
6. Amended and Restated Management Services Agreement for Managed Systems made
as of the 11th day of March, 1988, by and between ACI and Hoosick Cablevision,
Inc., a New York corporation.
7. Management Services Agreement for Managed Systems made as of the 1st day of
January, 1995, by and between ACC and Plato Communications, Inc., a Delaware
corporation (now known as Kittanning).
8. Amended and Restated Management Services Agreement for Managed Systems made
as of the 25th day of September, 1989, by and between ACI, Moutain Cable
Company, a Vermont limited partnership, and ACC.
9. Amended and Restated Management Services Agreement for Managed Systems
made as of the 11th day of March,
1988, by and between ACI and Mt. Lebanon Cablevision, Inc., a Pennsylvania
corporation.
10. Amended and Restated Management Services Agreement for Managed Systems
made as of the 11th day of March,
1988, by and between ACI and Multi-Channel T.V. Cable Company, an Ohio
corporation.
11. Management Services Agreement for Managed Systems made as of the 1st day of
January, 1995, by and between ACTV and Northeast Cable, Inc., a Delaware
corporation.
12. Amended and Restated Management Services Agreement for Managed Systems made
as of the 11th day of March, 1988, by and between ACI and Rigpal Communications,
Inc., a Pennsylvania corporation.
13. Management Services Agreement for Managed Systems made as of the 9th day of
January, 1996, by and between ACI and Robinson/Plum Cablevision, L.P., a
Pennsylvania limited partnership.
14. Amended and Restated Management Services Agreement for Managed Systems made
as of the 11th day of March, 1988, by and between ACI and South Shore
Cablevision, Inc., a Massachusetts corporation.
15. Management Services Agreement for Managed Systems made as of the 10th day of
March, 1994, by and between ACI and Three Rivers Cable Associates, L.P., a
Pennsylvania limited partnership.
16. Amended and Restated Management Services Agreement for Managed Systems
made as of the 11th day of March,
1988, by and between ACI and Upper St. Clair Cablevision, Inc., a Pennsylvania
corporation.
<PAGE>
EXHIBIT B
SUPPLEMENT TO
MANAGEMENT SUBORDINATION AGREEMENT
SUPPLEMENT, dated as of , 199__, to the Management Subordination
Agreement, dated as of April ___, 1996 (as amended, supplemented and otherwise
modified from time to time, the "Agreement"), among CHELSEA COMMUNICATIONS,
INC., a Delaware corporation ("Chelsea"), NORTHEAST CABLE, INC., a Delaware
corporation ("Northeast"), KITTANNING CABLEVISION, INC., a Delaware corporation
("Kittanning") and ROBINSON/PLUM CABLEVISION, L.P., a Pennsylvania limited
partnership ( Robinson ; together with Chelsea, Northeast and Kittanning, the
"Borrowers"), each subsidiary of any Borrower party hereto (together with the
Borrowers, the "Companies"), Adelphia Cablevision, Inc., a Pennsylvania
corporation ( ACI ), Adelphia Communications Corporation, a Delaware corporation
( ACC ) and Adelphia Cable T.V., Inc., a Pennsylvania corporation ( ACTV ;
together with ACI and ACC, the Managers ), and TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent (in such capacity, the "Administrative Agent") for the
Lenders from time to time parties to the Credit Agreement, dated as of April
___, 1996, among the Borrowers, such Lenders, the Agents identified therein and
Toronto Dominion (Texas), Inc., as Administrative Agent (as amended,
supplemented and otherwise modified from time to time, the "Credit Agreement").
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 and to issue Letters of Credit (as defined in the Credit Agreement)
upon the terms and subject to the conditions set forth therein; and
WHEREAS, (the "New Manager") wishes to become a "Manager" under
that certain [insert description of Management Agreement] (the New Management
Agreement ); and
WHEREAS, it is a condition precedent to the New Manager becoming
a "Manager" under the New 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.
Unless otherwise defined herein, capitalized terms which are defined in
the Agreement are used herein as so defined.
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:
Address for notices:
Telecopy:
ACKNOWLEDGED AND ACCEPTED
this day of 1996
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
Name:
Title:
<PAGE>
EXHIBIT G
FORM OF NOTICE OF BORROWING
Toronto Dominion (Texas), Inc. ________________, 19__
Attention:
Telecopier:
Notice of Borrowing
Reference is made to the Credit Agreement, dated as of April ___,
1996, among Chelsea Communications, Inc., a Delaware corporation, Northeast
Cable, Inc., a Delaware corporation, Kittanning Cablevision, Inc., a Delaware
corporation and Robinson/Plum Cablevision, L.P., a Pennsylvania limited
partnership, as the Borrowers, the several Lenders from time to time parties
thereto, the Agents identified therein and Toronto Dominion (Texas), Inc., as
Administrative Agent (as amended, supplemented and otherwise modified from time
to time, the "Credit Agreement"). Capitalized terms used but not otherwise
defined herein have the meanings assigned to them in the Credit Agreement. The
undersigned Borrower hereby gives notice pursuant to and in accordance with
Section 2.3 of the Credit Agreement of its request to have the following
[Revolving Credit]1 [Term]1 Loans made to it on [insert requested date of
Borrowing]:
Number of Borrowings Type of Loan2 Interest Period3 Amount
(1)
(2)
(3)
1 Use separate certificates for Revolving Credit Loans and Term Loans.
2 Specify Base Rate Loans or Eurodollar Loans for each Borrowing.
3 Specify the duration of the Interest Period in the case of Eurodollar
Loans of the same Borrowing (e.g., one-month Eurodollar Rate).
4 If the representation and warranty in either clause (b)(i) or
(b)(ii) would be incorrect, include the material in brackets
and set forth the reasons such representation and warranty
would be incorrect on an attachment labeled Annex A.
The undersigned Responsible Officer of such Borrower represents
and warrants that (a) the Borrowing requested hereby complies with the
requirements of Section 2.3 of the Credit Agreement and (b) except to the extent
set forth on Annex A hereto,4 (i) each representation and warranty of the
Borrowers set forth in Section 4 of the Credit Agreement is true and correct in
all material respects as of the date hereof and will be true and correct as of
the time the Loans are made, in each case, unless made as of a specific date as
set forth therein and both prior to and after giving effect to the Loans and the
application of the proceeds thereof, and (ii) no Default exists as of the date
hereof or would result from the making of the Loans or from the application of
the proceeds thereof if the Loans were made on the date hereof and no Default
will exist at the time the Loans are made or will result from the making of the
Loans or from the application of the proceeds thereof.
Attached hereto as Annex B is a pro forma Compliance Certificate
of the Borrowers, dated of even date herewith.
[NAME OF BORROWER]
By:
Name:
Title:
Annex A - Reasons Representations and Warranties Above Are Incorrect
Annex B - Pro Forma Compliance Certificate
<PAGE>
EXHIBIT H
FORM OF NOTICE OF CONVERSION
Toronto Dominion (Texas), Inc. _________________, 19__
Attention:
Telecopier:
Notice of Conversion
Reference is made to the Credit Agreement, dated as of April ___,
1996, among Chelsea Communications, Inc., a Delaware corporation, Northeast
Cable, Inc., a Delaware corporation, Kittanning Cablevision, Inc., a Delaware
corporation and Robinson/Plum Cablevision, L.P., a Pennsylvania limited
partnership, as the Borrowers, the several Lenders from time to time parties
thereto, the Agents identified therein and Toronto Dominion (Texas), Inc., as
Administrative Agent (as amended, supplemented and otherwise modified from time
to time, the "Credit Agreement"). Capitalized terms used but not otherwise
defined herein have the meanings assigned to them in the Credit Agreement. The
undersigned Borrower hereby gives notice pursuant to and in accordance with
Section 2.9 of the Credit Agreement of its desire to Convert the following
[Revolving Credit]1 [Term]1 Loans specified below into the Type and in the
amounts specified below on [insert date of Conversion]:
Loans to be
Converted Converted Loans
Last Day of
Current
Type Interest Date of New Interest
of Loan2 Period3 Amount Conversion Period Amount
-------- --------- ---------- ----------- ----------- -----------
-------- --------- ---------- ----------- ----------- -----------
-------- --------- ---------- ----------- ----------- -----------
The undersigned Responsible Officer of such Borrower represents
and warrants that (a) the Conversion requested hereby complies with the
requirements of Section 2.9 of the Credit Agreement and (b) except to the extent
set forth on Annex A hereto,4 (i) each representation and warranty of the
Borrowers set forth in Section 4 of the Credit Agreement is true and correct in
all material respects as of the date hereof and will be true and correct as of
the time of the Conversion, in each case, unless made as of a specific date as
set forth therein and both prior to and after giving effect to the Conversion,
and (ii) no Default exists as of the date hereof and no Default will exist at
the time of the Conversion.
1 Use separate certificates for Revolving Credit Loans and Term Loans.
2 Specify Base Rate Loans or Eurodollar Loans.
3 Inapplicable if Type of Loans to be Converted are Base Rate Loans.
4 If the representation and warranty in either clause (b)(i) or
(b)(ii) would be incorrect, include the material in the
brackets and set forth the reasons such representation and
warranty would be incorrect on an attachment labeled Annex A.
[NAME OF BORROWER]
By:
Name:
Title:
Annex A - Reasons Representations and Warranties Above Are Incorrect
<PAGE>
EXHIBIT I
FORM OF NOTICE OF LETTER OF CREDIT REQUEST
________________, 19__
Toronto Dominion (Texas), Inc.
Attention:
Telecopier:
Notice of Letter of Credit Request
Reference is made to the Credit Agreement dated as of April ___,
1996 among Chelsea Communications, Inc., a Delaware corporation, Northeast
Cable, Inc., a Delaware corporation, Kittanning Cablevision, Inc., a Delaware
corporation and Robinson/Plum Cablevision, L.P., a Pennsylvania limited
partnership, as the Borrowers, the several Lenders from time to time parties
thereto, the Agents identified therein and Toronto Dominion (Texas), Inc., as
Administrative Agent (as amended, supplemented and otherwise modified from time
to time, the "Credit Agreement"). Capitalized terms used but not otherwise
defined herein have the meanings assigned to them in the Credit Agreement. The
undersigned Borrower hereby gives notice pursuant to and in accordance with
Section 3.2 of the Credit Agreement of its request to have a Letter of Credit
issued, or to have an existing Letter of Credit renewed or extended, on
_______________, ____ (the "Issue Date").
The undersigned Responsible Officer of such Borrower hereby
represents and warrants that (a) each of the conditions precedent set forth in
Section 5.1 of the Credit Agreement has been satisfied and will continue to be
satisfied on the Issue Date and (b) except to the extent set forth on Annex A
hereto1, (i) each of the representations and warranties of the Borrowers set
forth in Section 4 of the Credit Agreement are true and correct in all material
respects, and will be true and correct as of the Issue Date, both before and
after giving effect to the requested Letter of Credit and the proposed use
thereof, as if made on and as of such date, unless made as of a specific date as
set forth therein and (ii) no Default has occurred and is continuing, or will
have occurred and will be continuing, on the Issue Date after the issuance of
the requested Letter of Credit and the proposed use thereof.
Attached hereto as Annex B is the undersigned s L/C Application
for such Letter of Credit2. Attached hereto as Annex C is a pro forma Compliance
Certificate of the Borrowers, dated of even date herewith.
[INSERT NAME OF BORROWER]
By:
Name:
Title:
Annex A - Reasons Representations and Warranties Above Are Incorrect
Annex B - L/C Application
Annex C - Pro Forma Compliance Certificate
1 If the representation and warranty in either clause (b)(i) or
(b)(ii) would be incorrect, include the material in brackets
and set forth the reasons such representations and warranties
would be incorrect on an attachment labeled Annex A.
2 Attach as Annex B the Issuing Lender's current form of Application for
Standby Letter of Credit.
<PAGE>
EXHIBIT J
FORM OF REVOLVING CREDIT NOTE
$__________________ ______________, 1996
FOR VALUE RECEIVED, the undersigned, CHELSEA COMMUNICATIONS,
INC., a Delaware corporation, NORTHEAST CABLE, INC., a Delaware corporation,
KITTANNING CABLEVISION, INC., a Delaware corporation and ROBINSON/PLUM
CABLEVISION, L.P., a Pennsylvania limited partnership (each a "Borrower" and,
collectively, the "Borrowers"), hereby, jointly and severally, unconditionally
promise to pay to the order of _________________________ (the "Lender") at the
Administrative Agent s Office, in lawful money of the United States of America
and in immediately available funds, on or before the Revolving Credit
Termination Date the principal amount of (a) _________________________ DOLLARS
($____________), or, if less, (b) the aggregate unpaid principal amount of the
Revolving Credit Loans made by the Lender to the Borrowers pursuant to Section
2.1 of the Credit Agreement (as defined below). The Borrowers further, jointly
and severally, unconditionally agree to pay interest in like money at the
Administrative Agent s Office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in Section 2.8 of such
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
The holder of this Revolving Credit 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 Revolving Credit Loan made pursuant to the Credit Agreement and
the date and amount of each payment or prepayment of principal thereof, each
Conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, to Eurodollar Loans having a new Interest Period and, further
in the case of Eurodollar Loans, the length of each Interest Period and the
applicable 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 any Borrower in respect of such Revolving Credit Loans or under
this Revolving Credit Note, the Credit Agreement or any other Loan Document.
This Revolving Credit Note (a) is one of the Notes referred to in
the Credit Agreement dated as of April ___, 1996 (as amended, supplemented and
otherwise modified from time to time, including, without limitation, all
extensions, renewals, restatements, rearrangements and refundings thereof, the
"Credit Agreement"), among the Borrowers, the Lender, the other Lenders from
time to time parties thereto, the Agents identified therein and Toronto Dominion
(Texas), Inc., 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 Revolving Credit Note
is secured and guaranteed 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 and the guarantees, the terms and conditions upon which the security
interests and each guaranty were granted and the rights of the holder of this
Revolving Credit Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Revolving Credit Note shall become, or may be declared to be, immediately due
and payable, all as provided in the Credit Agreement. The Borrowers jointly and
severally promise to pay all costs and expenses of the Lender incurred in
collecting the Borrowers' obligations hereunder or in enforcing or attempting to
enforce the Lender's rights hereunder, including, without limitation, reasonable
attorneys' fees and disbursements, whether or not an action is filed in
connection herewith.
All parties now and hereafter liable with respect to this
Revolving Credit Note, whether as maker, principal, surety, guarantor, endorser
or otherwise, hereby waive presentment, demand for payment, dishonor, notice of
dishonor, protest, notice of protest and any other notice or formality of any
kind, to the fullest extent permitted by applicable Requirements of Law.
The joint and several obligations of the Borrowers hereunder
shall not be subject to any reduction, limitation, impairment or termination for
any reason, including, without limitation, any claim of waiver, release,
surrender, alteration or compromise, or be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of this Revolving Credit Note, the Obligations,
any other Loan Document or otherwise.
Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Credit Agreement.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICT OF LAW PRINCIPLES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE FOLLOWS.]
<PAGE>
CHELSEA COMMUNICATIONS, INC.
By:
Name:
Title:
NORTHEAST CABLE, INC.
By:
Name:
Title:
KITTANNING CABLEVISION, INC.
By:
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: Kittanning Cablevision, Inc.,
General Partner
By:
Name:
Title:
<PAGE>
EXHIBIT K
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT, dated as of April ___, 1996, by
[Adelphia Communications Corporation, a Delaware corporation] [Joseph S. Gans,
Sr., Irene F. Gans, Joseph S. Gans, III and Janice Gans Moisey] [Chelsea
Communications, Inc., a Delaware corporation] [Pericles Communications
Corporation, a Delaware corporation] ([collectively,]1 the "Pledgor"), in favor
of TORONTO DOMINION (TEXAS), INC., as Administrative Agent (in such capacity,
the "Administrative Agent") for the several Lenders from time to time parties to
the Credit Agreement, dated of even date herewith, among Chelsea Communications,
Inc., a Delaware corporation, Northeast Cable, Inc., a Delaware corporation,
Kittanning Cablevision, Inc., a Delaware corporation and Robinson/Plum
Cablevision, L.P., a Pennsylvania limited partnership, as the Borrowers, such
Lenders, the Agents identified therein and Toronto Dominion (Texas), Inc., as
the Administrative Agent (as amended, supplemented and otherwise modified from
time to time, the "Credit Agreement").
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 and to issue Letters of Credit
upon the terms and subject to the conditions set forth therein;
WHEREAS, the Pledgor is the legal and beneficial owner of the
shares of Pledged Stock (as hereinafter defined) issued by the Issuers (as
hereinafter defined); and
[WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective Loans to the Borrowers and to issue Letters of
Credit that the Pledgor guarantee payment and performance of the Borrowers
obligations under the Credit Agreement, the Notes and the other Loan
Documents;2]
[WHEREAS, in satisfaction of such condition, the Pledgor has
entered into a Guaranty Agreement of even date herewith (as amended,
supplemented and otherwise modified from time to time, the Guaranty ) for the
benefit of the Lenders and the Agents;]2
WHEREAS, it is [further]3 a condition precedent to the
obligation of the Lenders to make their respective Loans to the Borrowers and to
issue Letters of Credit under the Credit Agreement that the Pledgor shall have
executed and delivered this Stock Pledge Agreement to the Administrative Agent
for the benefit of the Lenders and the Agents to secure, among other things,
payment and performance of the Borrowers obligations under the Credit Agreement
[and payment and performance of the Pledgor s obligations under the Guaranty]3.
1 To be used with Gans Family Stock Pledge only.
2 To be used with Pericles Stock Pledge only.
3 To be used with Pericles Stock Pledge only.
NOW, THEREFORE, for and in consideration of the premises and
to induce the Agents and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Loans and to issue Letters of Credit
under the Credit Agreement, the Pledgor hereby agrees with the Administrative
Agent, for the benefit of the Lenders and the Agents, as follows:
56. 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. For purposes of this Stock Pledge Agreement, the term
"Lender" shall include any Affiliate of any Lender which has entered into an
Interest Rate Protection Agreement with any Borrower and the term "Loan
Agreements" shall include any Interest Rate Protection Agreement between any
Lender (including any such Affiliate of a Lender) and any Borrower.
(b) The following terms shall have the following meanings:
"Agreement": this Stock Pledge Agreement, as the same may be amended,
modified and 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 Stock 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
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 Stock; individually, each an "Issuer."
"Obligations": the collective reference to (i) the Obligations (as
defined in the Credit Agreement), and all renewals, refundings, restructurings
and other refinancings thereof, including increases in the amount thereof,
[and]3 (ii) [all obligations and liabilities of the Pledgor which may arise
under or in connection with the Guaranty, and (iii)]3 all other obligations and
liabilities of the Pledgor which may arise under or in connection with any other
Loan Document to which the Pledgor is a party, whether on account of
reimbursement obligations, fees, indemnitees, 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
Pledgor pursuant to the terms of this Agreement or any other Loan Document to
which the Pledgor is a party..
"Pledged Stock": the shares of capital stock listed on Schedule 1
hereto, together with all stock certificates, options, warrants or rights of any
nature whatsoever relating thereto, and any stock or other capital securities or
other property that may be issued or granted by any Issuer to the Pledgor while
this Agreement is in effect.
"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,
cash, notes, securities or other property from time to time acquired, receivable
or otherwise distributed in respect of, or in exchange for, the Pledged Stock,
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.
57. Pledge; Grant of Security Interest. The Pledgor hereby
delivers to the Administrative Agent, for the benefit of the Lenders and the
Agents, all of the Pledged Stock and hereby pledges, assigns, transfers and
grants to the Administrative Agent, for the benefit of the Lenders and the
Agents, a continuing first priority 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, now existing or hereafter arising.
This Agreement shall create a continuing security interest in
the Collateral which shall remain in effect until all the Obligations, now
existing or hereafter arising, shall have been paid in full and the Commitments,
any Letters of Credit, the Credit Agreement and all other Loan Documents have
been terminated.
58. Stock Powers. Concurrently with the delivery to the
Administrative Agent of each certificate representing one or more shares of
Pledged Stock, the Pledgor shall deliver an undated stock power covering such
certificate, duly executed in blank by the Pledgor.
59. Representations and Warranties. The Pledgor represents
and warrants that:
(a) [The shares of Pledged Stock constitute all the issued and
outstanding shares of all classes of Capital Securities of each Issuer owned by
such Pledgor.]4 [The shares of Pledged Stock constitute 100% of the issued and
outstanding shares of all classes of Capital Securities of each Issuer.]5 [The
shares of Pledged Stock, together with the 150 shares of common stock of
Northeast Cable, Inc. pledged by certain members of the Gans Family pursuant to
a Stock Pledge Agreement of even date herewith, constitute 100% of the issued
and outstanding shares of all classes of Capital Securities of each Issuer.]6
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) The Pledgor is the record and beneficial owner of, and has good and
marketable title to, the Pledged Stock, free and clear of any and all Liens or
options in favor of, or claims or rights of, any other Person, except the
security interests created by this Agreement and other Permitted Liens.
(d) Upon delivery to the Administrative Agent of the stock certificates
evidencing the Pledged Stock, the security interest created by this Agreement
will constitute a valid, continuing, perfected first priority security interest
in the Collateral, enforceable in accordance with its terms against all
creditors of the Pledgor and any other Persons purporting to purchase from the
Pledgor, or have any rights to, any of the Collateral, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally, and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
(e) All Capital Securities of each Issuer are in certificated form.
4 To be used with Gans Family Stock Pledge only.
5 To be used with Chelsea and Pericles Stock Pledges only.
6 To be used with ACC Stock Pledge only.
60. Covenants. The Pledgor covenants and agrees with the
Administrative Agent for the benefit of the Lenders and the Agents that until
the Obligations are paid in full and the Commitments, any Letters of Credit, the
Credit Agreement and the other Loan Documents are terminated:
(a) If the Pledgor shall become entitled to receive or shall receive
any additional Capital Securities of the Issuers (including, without limitation,
any Capital Securities 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), options or other
rights, whether in addition to, in substitution of, as a conversion of, or in
exchange for any shares of the Pledged Stock, or otherwise in respect thereof,
the Pledgor shall accept the same as the agent of the Administrative Agent, the
Lenders and the other Agents, hold the same in trust for the Administrative
Agent, the Lenders and the other Agents and deliver the same forthwith to the
Administrative Agent in the exact form received, duly endorsed 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, if the
Administrative Agent so requests, to be held by the Administrative Agent,
subject to the terms hereof, as additional Collateral for the Obligations.
Except in connection with any transaction permitted under the Credit Agreement,
any sums paid upon or in respect of the Pledged Stock 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 Stock or any property shall be distributed upon or with respect to the
Pledged Stock pursuant to the recapitalization or reclassification of the
capital of the 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. Subject to the
provisions of the Credit Agreement, if any sums of money or property so paid or
distributed in respect of the Pledged Stock 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 and
the Agents, segregated from other funds of the Pledgor, as additional collateral
security for the Obligations. Sums of money or property paid or distributed to
the Pledgor in respect of the Pledged Stock in accordance with the terms of the
Credit Agreement may be retained by the Pledgor.
(b) Except in connection with any transaction permitted under the
Credit Agreement, without the prior written consent of the Administrative Agent,
the Pledgor will not (1) vote to enable, or take any other action to permit, any
Issuer to issue any stock or other equity securities of any nature, in
certificated form or otherwise, 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, (2) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the Collateral, (3)
create, incur or permit to exist any Lien or option in favor of, or any claim or
right of any Person with respect to, any of the Collateral, or any interest
therein, except for the security interests created by this Agreement or (4)
create, incur, enter into or permit to exist 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 from and after the date hereof.
(c) The Pledgor shall maintain the security interest created by this
Agreement as a first priority 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, the
Lenders and the other Agents 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 willful misconduct of the Administrative Agent, any Lender or any
other Agent.
61. 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(b) 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 Stock and to exercise all voting and
corporate rights with respect to the Pledged Stock; 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.
62. 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 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, (1)
the Administrative Agent shall have the right to receive any and all cash
dividends paid in respect of the Pledged Stock and make application thereof to
the Obligations in such order as the Administrative Agent may determine, (2)
upon the request of the Administrative Agent, all shares of the Pledged Stock
shall be registered in the name of the Administrative Agent or its nominee, and
(3) the Administrative Agent or its nominee may exercise (A) all voting,
corporate and other rights pertaining to the Pledged Stock 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 the Pledged Stock as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and
all of the Pledged Stock 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 Stock, and
in connection therewith, the right to deposit and deliver any and all of the
Pledged Stock 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.
63. 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 as provided in the Credit
Agreement.
(b) If an Event of Default shall have occurred and be
continuing, the Administrative Agent, on behalf of the Lenders and the Agents,
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, any Lender or
any other 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,
any Lender or any other Agent 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, the
Lenders and the other Agents hereunder, including, without limitation,
reasonable attorneys' fees and disbursements, to the payment in whole or in part
of the Obligations as provided in the Credit Agreement, 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, any Lender or any other Agent arising out of the exercise by them of any
rights hereunder. If any notice of a proposed sale or other disposition of the
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. [The Pledgor
shall remain liable for any deficiency if the proceeds of any sale or other
disposition of Collateral are insufficient to pay the Obligations and the fees
and disbursements of any attorneys employed by the Administrative Agent, any
Lender or any other Agent to collect such deficiency.]7
64. Registration Rights; Private Sales. (a) If the
Administrative Agent shall determine to exercise its right to sell any or all of
the Pledged Stock pursuant to Section 8 hereof, and if in the opinion of the
Administrative Agent it is necessary or advisable to have the Pledged Stock, or
that portion thereof to be sold, registered under the provisions of the
Securities Act, the Pledgor will use its best efforts to cause the Issuer
thereof (1) to 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 Stock, or
that portion thereof to be sold, under the provisions of the Securities Act, (2)
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 Stock, or that portion thereof to be
sold, and (3) 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 use its best efforts 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 Stock, 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 Stock
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 Stock 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, the
Lenders and the other Agents, that the Administrative Agent, the Lenders and the
other Agents 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.
7 To be deleted in ACC and Gans Family Stock Pledge Agreements.
65. 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.
66. 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) and not in contravention of the terms hereof. 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.
67. 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, any other Agent 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.
68. 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.
69. 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 nonexercise 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 and the other Agents, 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 and the other Agents 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.
70. 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, at its address or transmission
number for notices provided in
Section 10.2 of the Credit Agreement;
(b) if to any Agent other than the Administrative Agent or any Lender,
at its address or transmission number for notices provided in Annex A to the
Credit Agreement, as supplemented from time to time in connection with
assignments pursuant to Section 10.6 of the Credit Agreement; and
(c) if to the Pledgor, at its address or transmission number for
notices set forth under its
signature below.
The Administrative Agent, each Lender, each other Agent and
the Pledgor may change their address and transmission numbers for notices by
notice in the manner provided in this Section.
71. 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.
72. 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, the Lenders and the other
Agents 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 or any
other Agent 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, any Lender or any other Agent, 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, any Lender or any other Agent 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, such Lender or such other Agent 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.
73. 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.
74. 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, the Lenders and the other Agents 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 and any such purported assignment shall be null and void.
75. 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 Stock) 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 federal, state or local 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 federal, state or local
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 federal,
state or local 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 the occurrence and
continuance of an Event of Default.
76. 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, WITHOUT GIVING
EFFECT TO ITS CONFLICT OF LAW PRINCIPLES.
77. 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 set forth in Section 9.2 of the Credit Agreement or at
such other address of which the Administrative Agent shall have been notified
pursuant thereto;
(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; 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 Section any special, exemplary or punitive damages.
78. WAIVER OF JURY TRIAL. THE PLEDGOR HEREBY KNOWINGLY
AND INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
79. Counterparts. This Agreement may be executed by the
Pledgor 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.
80. Integration. This Agreement and the other Loan Documents
represent the final agreement of the parties hereto and thereto, respectively,
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by any Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE FOLLOWS.]
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Stock
Pledge Agreement to be duly executed and delivered as of the date first above
written.
[ADELPHIA COMMUNICATIONS
CORPORATION]
[CHELSEA COMMUNICATIONS, INC.] OR
[PERICLES COMMUNICATIONS
CORPORATION]
By:
Name:
Title:
Address for Notices:
[c/o Chelsea Communications, Inc.]
5 West Third Street
Coudersport, Pennsylvania 16915
Attention: Colin Higgin, Esq.
Telecopy: (814) 274-6586
[
Joseph S. Gans, Sr.
Address for Notices:
R.D. #1, Box 300
Sugarloaf, Pennsylvania 18249
<PAGE>
Irene F. Gans
Address for Notices:
R.D. #1, Box 300
Sugarloaf, Pennsylvania 18249
Joseph S. Gans, III
Address for Notices:
R.D. #3, Box 433
Bloomsburg, Pennsylvania 17815
Janice Gans Moisey
Address for Notices:
R.D. #1, Box 84-1
Sugarloaf, Pennsylvania 18249
Schedules:
Schedule 1 - Description of Pledged Stock
<PAGE>
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Stock Pledge Agreement dated April ___, 1996 (the "Pledge Agreement"), made by
________________, a _________________, for the benefit of Toronto Dominion
(Texas), Inc., as Administrative Agent (in such capacity, the "Administrative
Agent"). The undersigned agrees for the benefit of the Administrative Agent, the
Lenders and the other Agents 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, upon knowing or having reason to know
thereof, will notify the Administrative Agent promptly in writing of the
occurrence of any of the covenant defaults described in Section 5(a) of the
Pledge Agreement.
3. The terms of Section 9 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:
Address for Notices:
Telecopy:
<PAGE>
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Stock No.
Issuer Class of Stock Certificate No. of Shares
Chelsea Communications, Inc. Common 15 500
Northeast Cable, Inc. Common 2 850
Kittanning Cablevision, Inc. Common 1 1,000
<PAGE>
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Stock No.
Issuer Class of Stock Certificate No. of Shares
Aurora Cable Vision, Inc. Common 8 100
Better TV, Inc. of Bennington Common 12 7,000
Campbell Commuincations, Inc. Common 8 1,250
Chautauqua County Cable
Vision, Inc. Common 13 50
Harbor Vue Cable TV, Inc. Common 9 50
Hoosick Cablevision, Inc. Common 2 100
Kalamazoo County
Cablevision, Inc. Common 11 500
Mass. Cablevision, Inc. Common 17 7,485
Mt. Lebanon Cablevision
, Inc. Common 1 100
Multi-Channel T.V.
Cable Company Common 1 6,135
Pericles Communications
Corporation Common 3 1,000
Rigpal Communications, Inc. Common 1 100
South Shore Cablevision, Inc. Common 1 1,000
Upper St. Clair
Cablevision, Inc. Common 1 100
Vermilion Cable
Communications, Inc. Common 5 100
<PAGE>
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Class Stock No.
Issu of Stock Certificate No. of Shares
Mountain Cable
Communications Corp Common 13 500,000
<PAGE>
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Class Stock No.
Issuer of Stock Certificate No. of Shares
Northeast Cable, Inc. Common 4 45
Northeast Cable, Inc. Common 5 7.5
Northeast Cable, Inc. Common 6 7.5
Northeast Cable, Inc. Common 7 45
Northeast Cable, Inc. Common 8 45
<PAGE>
EXHIBIT L
SUBSIDIARY ASSIGNMENT OF PARTNERSHIP INTERESTS
SUBSIDIARY ASSIGNMENT OF PARTNERSHIP INTERESTS, dated as of
________________, 1996, made by [Aurora Cable Vision, Inc., Kalamazoo County
Cablevision, Inc., Mass. Cablevision, Inc., Vermilion Cablevision, Inc.,
Pericles Communications Corporation, Mountain Cable Communications Corporation,
Upper St. Clair Cablevision, Inc., Rigpal Communications, Inc. and Mt. Lebanon
Cablevision, Inc.] [Walter L. Bent and Bent & Associates, Inc.] (hereinafter
collectively referred to as the "Pledgors"), in favor of TORONTO DOMINION
(TEXAS), INC., as Administrative Agent (in such capacity, the "Administrative
Agent") for the several Lenders from time to time parties to the Credit
Agreement, dated as of ________________, 1996, among Chelsea Communications,
Inc., a Delaware corporation, Northeast Cable, Inc., a Delaware corporation,
Kittanning Cablevision, Inc., a Delaware corporation and Robinson/Plum
Cablevision, L.P., a Pennsylvania limited partnership, as the Borrowers, such
Lenders, the Agents identified therein and Toronto Dominion (Texas), Inc., as
Administrative Agent (as amended, supplemented and otherwise modified from time
to time, the "Credit Agreement").
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 and to issue Letters of Credit
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 and to issue Letters of
Credit that the Pledgors guarantee payment and performance of the Borrowers'
obligations under the Credit Agreement, the Notes and the other Loan
Documents;]*
* Bracketed language to be excluded in Bent Assignment of Partnership
Interests.
[WHEREAS, in satisfaction of such condition, the Pledgors have
entered into a Guaranty Agreement of even date herewith (as amended,
supplemented and otherwise modified from time to time, the "Guaranty") for the
benefit of the Lenders and the Agents; and]1
WHEREAS, it is a [further]* condition precedent to the
obligation of the Lenders to make their respective Loans to the Borrowers and to
issue Letters of Credit under the Credit Agreement that the Pledgors shall have
executed and delivered this Subsidiary Assignment of Partnership Interests to
the Administrative Agent for the benefit of the Lenders and the Agents to
secure, among other things, payment and performance of the Borrowers'
obligations under the Credit Agreement [and payment and performance of the
Pledgors obligations under the Guaranty]2.
* Bracketed language to be excluded in Bent Assignment of Partnership
Interests.
NOW, THEREFORE, for and in consideration of the premises and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Pledgors hereby agree with the Administrative Agent,
for the benefit of the Lenders and the Agents, as follows:
81. Defined Terms. (a) Unless otherwise defined herein, terms
which are defined in the Credit Agreement and used herein are so used as so
defined. For purposes of this Assignment of Partnership Interests, the term
"Lender" shall include any Affiliate of any Lender which has entered into an
Interest Rate Protection Agreement with any Borrower and the term "Loan
Documents" shall include any Interest Rate Protection Agreement between any
Lender (including any such Affiliates of a Lender) and any Borrower.
(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, Proceeds, Instrument and Chattel Paper;
and the following terms have the following meanings:
"Agreement": this Subsidiary Assignment of Partnership Interests, as
the same may be amended, supplemented and otherwise modified from time to time.
"Code": the Uniform Commercial Code as from time to time in effect in
the State of New York.
"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
and the Agents as provided herein.
"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 Pledgors to receive, directly or
indirectly, moneys or any other rights or benefits therefrom.
"Partnerships": Adelphia Cablevision Associates, L.P., a Pennsylvania
limited partnership ( ACA, L.P. ), Mountain Cable Company, a Vermont limited
partnership ( Mountain ) and/or Three Rivers Cable Associates, L.P., a
Pennsylvania limited partnership ( Three Rivers ).
"Partnership Agreements": [(i) the Amended and Restated Limited
Partnership Agreement of Adelphia Cablevision Associates, L.P., dated May 11,
1988, by and among Chelsea Communications, Inc., as the general partner and
Kalamazoo County Cablevision, Inc., Vermilion Cable Communications, Inc., Mass.
Cablevision, Inc. and Aurora Cablevision, Inc., as the limited partners, (ii)
the Third Amended and Restated Limited Partnership Agreement of Mountain Cable
Company, dated April 1, 1992, by and among Pericles Communications Corporation
and Mountain Cable Communications Corporation, as the general partners and
Rigpal Communications, Inc., Mt. Lebanon Cablevision, Inc. and Upper St. Clair
Cablevision, Inc., as the limited partners and (iii) the Amended and Restated
Limited Partnership Agreement of Three Rivers Cable Associates, L.P., dated as
of the 10th day of March, 1994, by and among Mt. Lebanon Cablevision, Inc., as
the general partner and Walter L. Bent and Bent & Associates, Inc., as the
limited partners, as each of the foregoing] [the Amended and Restated Limited
Partnership Agreement of Three Rivers Cable Associates, L.P., dated as of the
10th day of March, 1994, by and among Mt. Lebanon Cablevision, Inc., as the
general partner and the Pledgors as the limited partners, as the same] may be
amended, supplemented and otherwise modified from time to time.
"Partnership Interests": as defined in Section 2 of this Agreement.
"Pledged Collateral": as defined in Section 2 of this Agreement.
"Secured Obligations": the collective reference to (i) the Obligations
(as defined in the Credit Agreement), and all renewals, refundings,
restructurings and other refinancings thereof, including increases in the amount
thereof, [and]* (ii) [all obligations and liabilities of the Pledgors which may
arise under or in connection with the Guaranty, and (iii)]* all other
obligations and liabilities of the Pledgors which may arise under or in
connection with any other Loan Document to which the Pledgors are a party,
whether on account of 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 Pledgors pursuant to the terms of this Agreement or any other Loan
Document to which the Pledgors are a party).
* Bracketed language to be excluded in Bent Assignment of Partnership
Interests.
* Bracketed language to be excluded in Bent Assignment of Partnership
Interests.
(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.
82. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Secured Obligations, now existing
or hereafter arising, the Pledgors hereby pledge, assign and transfer to the
Administrative Agent for the benefit of the Lenders and the Agents, and grant to
the Administrative Agent for the benefit of the Lenders and the Agents, a
continuing first priority security interest in, any and all of the following
property now owned or at any time hereafter acquired by the Pledgors, or in
which the Pledgors may acquire any right, title or interest (collectively, the
"Pledged Collateral"):
(a) any and all of their respective partnership interests in the
Partnerships whether now existing or hereafter acquired, including but not
limited to, those partnership interests in the various Partnerships as set forth
in Schedule 1 attached hereto, and further including, without limitation, all
their respective rights, title and interest to participate in the operation or
management of the Partnerships and all their respective rights to properties,
assets, partnership interests and distributions, including, without limitation,
distributions of profits, surplus or other compensation by way of income or
liquidating distributions, in cash or in kind, under the Partnership Agreements
(collectively, the "Partnership Interests");
(b) any and all of their respective rights in Accounts and other
rights to payment and distributions of any kind arising out of the Partnership
Agreements in respect of the Pledgors Partnership Interests;
(c) any and all of their respective rights in General Intangibles
arising out of or constituted by the Partnership Agreements in respect of the
Pledgors Partnership Interests; and
(d) 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 Secured
Obligations, now existing or hereafter arising, shall have been paid in full,
the Commitments and the Letters of Credit shall have been terminated and the
Credit Agreement and the Security Documents shall no longer be in effect.
83. Rights of Administrative Agent; Limitations on
Administrative Agent's Obligations.
(a) Pledgors Remain Liable. Anything herein to the contrary
notwithstanding, the Pledgors shall remain liable under Partnership Agreements
to observe and perform all the conditions and obligations to be observed and
performed by them 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 Pledgors 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 them 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 them or to which they may be entitled at any time or times.
(b) Proceeds. The Administrative Agent hereby authorizes the
Pledgors, until the occurrence of an Event of Default and until such Event of
Default shall be waived in writing or cured, (i) to collect the Accounts and
payments and distributions of any kind in respect of the Pledgors Partnership
Interests, and (ii) to retain the Proceeds of such Accounts and other payments
and distributions, subject to the terms of Section 7.6 of the Credit Agreement.
From and after the occurrence of an Event of Default and during the continuance
thereof, the Administrative Agent shall have the right, but not the obligation,
to collect and retain the Accounts and other payments and distributions of any
kind in respect of the Pledgors Partnership Interests, as provided in Section 6.
If required by the Administrative Agent at any time after the occurrence and
during the continuance of an Event of Default, the Accounts and other rights to
payment and distributions of any kind in respect of the Pledgors Partnership
Interests and any Proceeds of such Accounts and other rights to payment and
distributions, when and if collected by any Pledgor, shall be forthwith
deposited by such Pledgor in the exact form received, duly endorsed by such
Pledgor to the Administrative Agent if required, in a Collateral Account and,
until so turned over, shall be held by such Pledgor in trust for the
Administrative Agent, for the benefit of the Lenders and the Agents, segregated
from other funds of the Pledgors.
84. Representations and Warranties. The Pledgors hereby
represent and warrant that:
(a) Title; No Other Liens. Except for the Lien granted to the
Administrative Agent pursuant to this Agreement and other Permitted Liens, each
of the Pledgors owns each item of the Pledged Collateral pledged by it hereunder
free and clear of any and all Liens or claims of others. No security agreement
or financing statement 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. [The Partnership Interests in ACA, L.P. and Mountain set
forth in Schedule 1 attached hereto constitute 100% of the partnership interests
in each such partnership. The Partnership Interests in Three Rivers set forth in
Schedule 1, together with the 17.25% limited partnership interest of Walter L.
Bent and the 7.75% limited partnership interest of Bent & Associates, Inc. in
Three Rivers, constitute 100% of the partnership interests in Three Rivers.]*
* Bracketed language to be excluded in Bent Assignment of Partnership
Interests.
(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 each Partnership Interest and upon the filing of UCC-1
financing statements required to perfect the security interests granted
hereunder in Accounts and other rights to payment and distributions of any kind
and General Intangibles arising out of the Partnership Agreements in respect of
the Pledgors 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 and a continuing security
interest in the Pledged Collateral in favor of the Administrative Agent for the
benefit of the Lenders and the Agents and shall be enforceable as such against
all creditors of and purchasers from the Pledgors, except as enforceability may
be limited by applicable bankruptcy, insolvency, moratorium or similar laws
affecting the enforcement of creditors' rights generally, and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
(c) Chief Executive Office. The Pledgors chief executive offices and
principal places of business, and the places where the Pledgors keeps their
respective books and records, are located at [5 West Third Street, Coudersport,
Pennsylvania 16915].
85. Covenants. The Pledgors covenant and agree with the
Administrative Agent for the benefit of the Lenders and the Agents that until
the Secured Obligations are paid in full, the Commitments and Letters of Credit
are terminated and the Credit Agreement and the Security Documents shall no
longer be in effect:
(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 Pledgors, the Pledgors 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. Each Pledgor also hereby
authorizes the Administrative Agent to file any such financing or continuation
statement without the signature of such Pledgor to the extent permitted by
applicable law. The Pledgors 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 Pledgors will pay, and save the Administrative
Agent, each Lender and each of the other Agents, 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 willful
misconduct of the Administrative Agent, such Lender or such other Agent, as the
case may be.
(c) Maintenance of Records. The Pledgors will keep and maintain at
their 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 Pledgors 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
Permitted Liens, and will defend the right, title and interest of the
Administrative Agent for the benefit of the Lenders and the Agents in and to any
of the Pledged Collateral against the claims and demands of all Persons
whomsoever.
(e) Further Identification of Pledged Collateral. The Pledgors 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 Pledgors will not, unless they
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
their respective chief executive offices or principal places of business from
that specified in Section 4(c) or remove their respective books and records from
such location or (ii) change their names, identities or structures to such an
extent that any financing statement filed by the Administrative Agent in
connection with this Agreement would become seriously misleading.
86. Administrative Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Pledgors hereby irrevocably constitute and
appoint the Administrative Agent and any officer or agent thereof, to the extent
permitted under applicable law, with full power of substitution, as their true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of the Pledgors and in the name of the Pledgors 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 Secured Obligations and grant
interests in the Pledged Collateral as contemplated by this Agreement, and,
without limiting the generality of the foregoing, the Pledgors hereby give the
Administrative Agent the power and right, on behalf of the Pledgors, without
notice to or assent by the Pledgors, to do the following:
(i) upon the occurrence and during the continuance of an Event of
Default, to exercise all partnership rights, powers and privileges with respect
to the Partnership Interests to the same extent as a partner under the
Partnership Agreements;
(ii) upon the occurrence and during the continuance of an Event of
Default, in the name of the Pledgors 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 Pledgors as a partner under the
Partnership Agreements or (ii) for the payment of any other moneys due to the
Pledgors as a 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 Partnership Agreement 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 an 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 Pledgors 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 Pledgors
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
Pledgors might do. The Pledgors hereby ratify all that said attorneys shall
lawfully do or cause to be done by virtue hereof and not in contravention of the
terms hereof. This power of attorney is a power coupled with an interest and
shall be irrevocable.
(b) Other Powers. The Pledgors also authorize 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 the Pledgors for any act or failure
to act hereunder, except for its or their gross negligence or willful
misconduct.
87. Performance by Administrative Agent of Pledgors
Obligations; Rights of Pledgors Prior to an Event of Default. (a) If the
Pledgors fail to perform or comply with any of their 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 reasonable expenses of the Administrative Agent
incurred in connection with such performance or compliance, together with
interest thereon at the Default Rate, shall be payable by the Pledgors to the
Administrative Agent on demand and shall constitute Secured Obligations secured
hereby.
(b) Unless an Event of Default shall have occurred and be
continuing, the Pledgors shall be entitled to receive all distributions made
pursuant to their respective Partnership Agreements and exercise all voting
rights and take all action they are authorized to take thereunder, provided that
no distribution shall be made which is prohibited by the Credit Agreement, the
Partnership Agreements, any other Loan Document, or any of the other documents
executed in connection with the transactions contemplated thereby or 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.
88. 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 Secured
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 Pledgors 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,
any Lender and any other Agent 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 Pledgors or any other Person, which
right or equity of redemption is hereby waived or released. The Pledgors further
agree, 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 Pledgors 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, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Secured Obligations as
provided in the Credit Agreement and only after such application and payment in
full of the Secured 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 Pledgors. To the extent permitted by
applicable law, the Pledgors waive 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
Section 11 hereof 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 a Pledgor, exercise all
voting and other rights of such Pledgor as a limited or general, as the case may
be, partner of the Partnerships in respect of which such Pledgor is a partner
and exercise all other rights as a limited or general, as the case may be,
partner provided under the Partnership Agreements in respect of such Partnership
Interests and the Administrative Agent shall receive all permitted
distributions, if any, made for the account of such Pledgor as a limited or
general, as the case may be, partner under the Partnership Agreements.
[(c) The Pledgors shall remain liable for any deficiency if
the proceeds of any sale or other disposition of Pledged Collateral are
insufficient to pay the Obligations and the fees and disbursements of any
attorneys employed by the Administrative Agent, any Lender or any other Agent to
collect such deficiency.]*
* Bracketed language to be excluded in Bent Assignment of Partnership
Interests.
89. 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 Pledgors or otherwise.
90. 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.
91. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Lender or the Pledgors 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, at its address or transmission
number for notices provided in Section 10.2 of the Credit Agreement;
(b) if to any Agent other than the Administrative Agent or any Lender,
at its address or transmission number for notices provided in Annex A to the
Credit Agreement, as supplemented from time to time in connection with
assignments pursuant to Section 10.6 of the Credit Agreement; and
(c) if to the Pledgors, at their addresses or transmission numbers
for notices set forth under their signature below.
The Administrative Agent, each Lender, each other Agent and
the Pledgors may change their address and transmission numbers for notices by
notice in the manner provided in this Section.
92. 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.
93. 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.
94. 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, any Lender or any other Agent, 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, any Lender or any other Agent 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, any Lender or any other Agent
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.
95. 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 Pledgors
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. This Agreement shall be binding upon the
successors and assigns of the Pledgors and shall inure to the benefit of the
Administrative Agent, for the benefit of the Lenders and the Agents, and the
successors and assigns of the Administrative Agent, the Lenders and the other
Agents, provided that the Pledgors may not assign their 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.
96. 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 Interests) 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 federal, state or local 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 federal, state or local
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 federal,
state or local Governmental Authority or instrumentality, the Pledgors 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 Pledgors will use their 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 the occurrence and
continuance of an Event of Default.
97. Authority of Administrative Agent. The Pledgors
acknowledge 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 nonexercise 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 and the other Agents, 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 Pledgors, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders and the other Agents with full and valid authority so to act or
refrain from acting, and neither the Pledgors nor the Partnerships shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
98. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PLEDGORS HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ITS CONFLICT OF LAW PRINCIPLES.
99. Submission To Jurisdiction: Waivers. Each of the
Pledgors 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 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) 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 such
Pledgor at its address set forth under its signature below or at such other
address of which the Administrative Agent shall have been notified pursuant to
Section 11;
(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; 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 or punitive damages.
100. WAIVER OF JURY TRIAL. THE PLEDGORS HEREBY KNOWINGLY
AND INTENTIONALLY, 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.
101. Counterparts. This Agreement may be executed by the
Pledgors 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.
102. Integration. This Agreement and the other Loan Documents
represent the final agreement of the parties hereto and thereto, respectively,
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by any Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
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SIGNATURE PAGE FOLLOWS.]
<PAGE>
IN WITNESS WHEREOF, the Pledgors have caused this Subsidiary
Assignment of Partnership Interests to be duly executed and delivered as of the
date first above written.
[AURORA CABLE VISION, INC.,
KALAMAZOO COUNTY CABLEVISION, INC.,
MASS. CABLEVISION, INC.,
VERMILION CABLEVISION, INC.,
PERICLES COMMUNICATIONS
CORPORATION,
MOUNTAIN CABLE COMMUNICATIONS
CORPORATION,
UPPER ST. CLAIR CABLEVISION, INC.,
RIGPAL COMMUNICATIONS, INC.,
MT. LEBANON CABLEVISION, INC.]
By:
Name:
Title:
Address for Notices:
c/o Chelsea Communications, Inc.
5 West Third Street
Coudersport, Pennsylvania 16915
Telecopy: (814) 274-6586
OR
[Walter L. Bent]
Address for Notices:
296 Rockhill Court
Marco Island, Florida 33937
Telecopy: (941) 262-6465
[BENT & ASSOCIATES, INC.]
By:
Name:
Title:
Address for Notices:
2500 North Trail, Suite 222
Naples, Florida 33940
Telecopy: (941) 262-6465
Schedules
Schedule 1 - Description of Partnership Interests
Exhibits
Exhibit A - Transaction Statement
Exhibit B - Registration Notice
<PAGE>
SCHEDULE 1
DESCRIPTION OF PARTNERSHIP INTERESTS
1) All limited and general partnership interests in the Partnerships held
by Aurora Cable Vision, Inc. from
time to time, including without limitation:
an undivided 14.37% limited partnership interest in ACA, L.P.
2) All limited and general partnership interests in the Partnerships held
by Kalamazoo County Cablevision,
Inc. from time to time, including without limitation:
an undivided 10.78% limited partnership interest in ACA, L.P.
3) All limited and general partnership interests in the Partnerships held
by Mass. Cablevision, Inc. from
time to time, including without limitation:
an undivided 31.09% limited partnership interest in ACA, L.P.
4) All limited and general partnership interests in the Partnerships held
by Vermilion Cablevision, Inc.
from time to time, including without limitation:
an undivided 16.33% limited partnership interest in ACA, L.P.
5) All limited and general partnership interests in the Partnerships held by
Pericles Communications Corporation from time to time, including without
limitation:
an undivided [60%] general partnership interest in Mountain
6) All limited and general partnership interests in the Partnerships held by
Mountain Cable Communications Corporation from time to time, including without
limitation:
an undivided [.01%] general partnership interest in Mountain
7) All limited and general partnership interests in the Partnerships held
by Upper St. Clair Cablevision,
Inc. from time to time, including without limitation:
an undivided 6.84% limited partnership interest in Mountain
8) All limited and general partnership interests in the Partnerships held
by Rigpal Communications, Inc. from time to time, including without limitation:
an undivided 20.16% limited partnership interest in Mountain
9) All limited and general partnership interests in the Partnerships held
by Mt. Lebanon Cablevision, Inc.
from time to time, including without limitation:
an undivided 13% limited partnership interest in Mountain and an undivided 75%
general partnership interest in Three Rivers]
[(1) All limited and general partnership interests in Three Rivers Cable
Associates, L.P. held by Walter L. Bent and/or Bent & Associates, Inc. from time
to time including, without limitation the 17.25% limited partnership interest
held by Walter L. Bent and the 7.75% limited partnership interest held by Bent &
Associates, Inc.]
<PAGE>
EXHIBIT A
Transaction Statement
____________ __, 199__
To: [Name of Pledgor]
Attention:
and
Toronto Dominion (Texas), Inc., as Administrative Agent 909 Fannin,
Suite 1700 Houston, TX 77010 Attention:
This statement is to advise you that a pledge of the following
uncertificated securities has been registered in the name of Toronto Dominion
(Texas), Inc., as Administrative Agent:
1. Uncertificated Security: All [limited] [general]
partnership interests of [Name of Pledgor], in _________________________, L.P.
2. Registered owner:
[Name of Pledgor]
Attention:
Taxpayer Identification Number:
3. Registered Pledgee:
Toronto Dominion (Texas), Inc.,
as Administrative Agent
909 Fannin, Suite 1700
Houston, TX 77010
Attention:
Taxpayer Identification Number:
4. There are no liens or restrictions of ______________________, L.P., and no
adverse claims to which the uncertificated security is or may be subject known
to __________________________, L.P.
5. The pledge was registered on _____________ __, 199__.
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, CONFERS NO 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],
Managing General Partner
By:
Name:
Title:
<PAGE>
EXHIBIT B
______________ __, 199__
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
______________________________, L.P.
Pledgor Pledgee
[Name of Pledgor] Toronto Dominion (Texas), Inc.,
as Administrative Agent
909 Fannin, Suite 1700
Houston, TX 77010
Attention: Attention:
Very truly yours,
[NAME OF PARTNERSHIP]
By: [NAME OF GENERAL PARTNER],
Managing General Partner
By:
Name:
Title:
<PAGE>
EXHIBIT M
FORM OF TERM NOTE
$_____________ _______________, 1996
FOR VALUE RECEIVED, the undersigned, CHELSEA COMMUNICATIONS,
INC., a Delaware corporation, NORTHEAST CABLE, INC., a Delaware corporation,
KITTANNING CABLEVISION, INC., a Delaware corporation and ROBINSON/PLUM
CABLEVISION, L.P., a Pennsylvania limited partnership (each a "Borrower" and,
collectively, the "Borrowers"), hereby, jointly and severally, unconditionally
promise to pay to the order of _____________________________ (the Lender ) at
the Administrative Agent s Office, in lawful money of the United States of
America and in immediately available funds, the principal amount of (a)
____________________________ DOLLARS ($_____________), or, if less, (b) the
aggregate unpaid principal amount of the Term Loans made by the Lender to the
Borrowers pursuant to Section 2.2 of the Credit Agreement (as defined below),
which sum shall be due and payable on the dates and in the amounts specified in
the Credit Agreement, and shall be due and payable in full on or before the
Termination Date. The Borrowers further, jointly and severally, unconditionally
agree to pay interest in like money at the Administrative Agent s Office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in Section 2.8 of the Credit Agreement until such principal
amount is paid in full (both before and after judgment).
The holder of this Term 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 Term Loan made pursuant to the Credit Agreement and the date and amount
of each payment or prepayment of principal thereof, each Conversion of all or a
portion thereof to another Type and, in the case of Eurodollar Loans, to
Eurodollar Loans having a new Interest Period and, further in the case of
Eurodollar Loans, the length of each Interest Period and the applicable
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 any Borrower in respect of such Term Loans or under this Term
Note, the Credit Agreement or any other Loan Document.
This Term Note (a) is one of the Notes referred to in the
Credit Agreement dated as of April ___, 1996 (as amended, supplemented and
otherwise modified from time to time, including, without limitation, all
extensions, renewals, restatements, rearrangements and refundings thereof, the
Credit Agreement ), among the Borrowers, the Lender, the other Lenders from time
to time parties thereto, the Agents identified therein and Toronto Dominion
(Texas), Inc., 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 Term Note is secured
and guaranteed 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
and the guarantees, the terms and conditions upon which the security interests
and each guaranty were granted and the rights of the holder of this Term Note in
respect thereof.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Term Note shall become, or may be declared to be, immediately due and
payable, all as provided in the Credit Agreement. The Borrowers jointly and
severally promise to pay all costs and expenses of the Lender incurred in
collecting the Borrowers obligations hereunder or in enforcing or attempting to
enforce the Lender s rights hereunder, including, without limitation, reasonable
attorneys fees and disbursements, whether or not an action is filed in
connection herewith.
All parties now and hereafter liable with respect to this Term
Note, whether as maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand for payment, dishonor, notice of dishonor,
protest, notice of protest and any other notice or formality of any kind, to the
fullest extent permitted by applicable Requirements of Law.
The joint and several obligations of the Borrowers hereunder
shall not be subject to any reduction, limitation, impairment or termination for
any reason, including, without limitation, any claim of waiver, release,
surrender, alteration or compromise, or be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of this Term Note, the Obligations, any other
Loan Document or otherwise.
Capitalized terms used herein and not otherwise defined have
the meanings assigned to them in the Credit Agreement.
THIS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ITS CONFLICT OF LAW PRINCIPLES.
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SIGNATURE PAGE FOLLOWS.]
<PAGE>
CHELSEA COMMUNICATIONS, INC.
By:
Name:
Title:
NORTHEAST CABLE, INC.
By:
Name:
Title:
KITTANNING CABLEVISION, INC.
By:
Name:
Title:
ROBINSON/PLUM CABLEVISION, L.P.
By: Kittanning Cablevision, Inc.,
General Partner
By:
Name:
Title:
<PAGE>
Schedule A to
Term Note
LOANS, CONVERSIONS AND
PAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
Date Amount of Amount of Interest Amount of Amount of Unpaid
Eurodollar ABR Loans Period and Eurodollar Principal Principal
Loans Made Converted Eurodollar Loans Repaid Balance of
into Rate with Converted Eurodollar Notation
Eurodollar Respect into ABR Loans Made by
Loans Thereto Loans
</TABLE>
<PAGE>
Schedule B to
Term Note
LOANS, CONVERSIONS AND
PAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Date Amount of Amount of Amount of ABR Amount of Unpaid Notation
ABR Loan Made Eurodollar Loans Principal Principal Made by
Loan Made Loans Converted Repaid Balance of
Converted into ABR Loans
into ABR Eurodollar
Loans Loans
</TABLE>
<PAGE>
26
- 5 -
Schedule 4.2
EXHIBIT 5.1(d)
FORM OF BORROWING CERTIFICATE
Pursuant to Section 5.1(d) of the Credit Agreement, dated as
of April __, 1996, among Chelsea Communications, Inc., a Delaware corporation (
Chelsea ), Northeast Cable, Inc., a Delaware corporation ( Northeast ),
Kittanning Cablevision, Inc., a Delaware corporation ( Kittanning ) and
Robinson/Plum Cablevision, L.P., a Pennsylvania limited partnership ( Robinson
), as the Borrowers, the several Lenders from time to time parties thereto, the
Agents identified therein and Toronto Dominion (Texas), Inc., as Administrative
Agent (as amended, supplemented and otherwise modified from time to time, the
"Credit Agreement"), the undersigned, [________________________] and
[_______________________] of, and on behalf of, each of Chelsea, Northeast,
Kittanning and Robinson (the "Borrowers"), hereby certify as follows:
6. The representations and warranties of the Borrowers
and the Restricted Subsidiaries set forth in the Credit Agreement, the Security
Documents and each of the other 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, the Security Documents or any of the
other 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;
7. 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 or the issuance of the Letters of Credit, if any, requested to be
made on the date hereof and the consummation of the transactions contemplated by
the Loan Documents;
8. There are no liquidation or dissolution proceedings pending
or to our knowledge threatened against any of the Borrowers or any of their
Subsidiaries, nor has any other event occurred affecting or threatening (i) the
corporate existence of Chelsea, Northeast or Kittaning or any of their
Subsidiaries or (ii) the existence of Robinson;
9. Chelsea, Northeast and Kittanning are corporations
duly organized and validly existing under the laws of Delaware; and
10. Robinson is a limited partnership duly organized and
validly existing under the laws of the Commonwealth of Pennsylvania.
Unless otherwise defined herein, capitalized terms which are
defined in the Credit Agreement are used herein as so defined.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE FOLLOWS.]
<PAGE>
IN WITNESS WHEREOF, the undersigned have set our names and
affixed the corporate seal unto this Borrowing Certificate.
[CORPORATE SEAL] CHELSEA COMMUNICATIONS, INC.
By:
Name:
Executive Vice President
By:
Name:
Assistant Secretary
[CORPORATE SEAL] NORTHEAST CABLE, INC.
By:
Name:
Executive Vice President
By:
Name:
Assistant Secretary
<PAGE>
[CORPORATE SEAL] KITTANNING CABLEVISION, INC.
By:
Name:
Executive Vice President
By:
Name:
Assistant Secretary
[CORPORATE SEAL] ROBINSON/PLUM CABLEVISION, L.P.
By: Kittanning Cablevision, Inc.,
General Partner
By:
Name:
Executive Vice President
By:
Name:
Assistant Secretary
Date: , 1996
<PAGE>
SCHEDULE 4.2
<TABLE>
<CAPTION>
JURSIDICTIONS OF FORMATION AND QUALIFICATION
Jurisdiction of
Name Formation Qualifications
<S> <C> <C>
Adelphia Cablevision Associates, L.P. Pennsylvania Massachusetts,
New York, Ohio, Michigan
Aurora Cable Vision, Inc. New York --
Better TV, Inc. of Bennington Vermont --
Campbell Communications, Inc. Massachusetts --
Chautauqua County Cable Vision, Inc. New York --
--
Chelsea Communications, Inc. Delaware Pennsylvania,
Massachusetts,
Michigan, Ohio,
Florida
Harbor Vue Cable TV, Inc. New York --
Hoosick Cablevision, Inc. New York --
Kalamazoo County Cablevision, Inc. Michigan --
Kittanning Cablevision, Inc. Delaware Pennsylvania
Mass. Cablevision, Inc. Massachusetts --
Mountain Cable Communications Corporation Delaware Massachusetts,
New York, Vermont
Mountain Cable Company Vermont Massachusetts,
[Town of Williston, VT] New York
<PAGE>
Jurisdiction of
Name Formation Qualifications
Mt. Lebanon Cablevision, Inc. Pennsylvania Ohio
Multi-Channel T.V. Cable Company Ohio Pennsylvania,
Virginia
Northeast Cable, Inc. Delaware Pennsylvania
Pericles Communications Corporation Delaware Massachusetts,
New York, Vermont
Rigpal Communications, Inc. Pennsylvania --
Robinson/Plum Cablevision, L.P. Pennsylvania --
South Shore Cablevision, Inc. Massachusetts --
Three Rivers Cable Associates, L.P. Pennsylvania Ohio
Upper St. Clair Cablevision, Inc. Pennsylvania --
Vermilion Cable Communications, Inc. Ohio --
</TABLE>
<PAGE>
SCHEDULE 4.3
NECESSARY CONSENTS
NONE
<PAGE>
SCHEDULE 4.5
CERTAIN LITIGATION
NONE
<PAGE>
- 7 -
Schedule 4.14
SCHEDULE 4.14
SUBSIDIARIES
1. A. Subsidiaries of Chelsea Communications, Inc.
Adelphia Cablevision Associates, L.P.
Aurora Cable Vision, Inc.
Better TV, Inc. of Bennington
Campbell Communications, Inc.
Chautauqua County Cable Vision, Inc.
Harbor Vue Cable TV, Inc.
Hoosick Cablevision, Inc.
Kalamazoo County Cablevision, Inc.
Mass. Cablevision, Inc.
Mt. Lebanon Cablevision, Inc.
Multi-Channel T.V. Cable Company
Pericles Communications Corporation
Rigpal Communications, Inc.
South Shore Cablevision, Inc.
Upper St. Clair Cablevision, Inc.
Vermilion Cable Communications, Inc.
B. Subsidiaries of Kittanning Cablevision, Inc.
Robinson/Plum Cablevision, L.P.
C. Subsidiaries of Northeast Cable, Inc.
None.
D. Subsidiaries of Robinson/Plum Cablevision, L.P.
None.
E. Subsidiaries of Pericles Communications Corporation
Mountain Cable Communications Corporation
Mountain Cable Company
F. Subsidiaries of Mountain Cable Communications Corporation
Mountain Cable Company
G. Subsidiaries of Mt. Lebanon Cablevision, Inc.
Three Rivers Cable Associates, L.P.
<TABLE>
<CAPTION>
2. Ownership of Capital Securities of Borrower and Subsidiaries
Amount and Type
of Issued and Outstanding
Capital Securities
Subsidiary or Borrower Issued To/Owned By
<S> <C> <C>
Northeast Cable, Inc. 850 Shares of Adelphia Communications Corporation
Common Stock
Northeast Cable, Inc. 45 Shares of Joseph S. Gans, Sr. and Irene F. Gans
Common Stock
Northeast Cable, Inc. 7.5 Shares of Joseph S. Gans, Sr.
Common Stock
Northeast Cable, Inc. 7.5 Shares of Irene F. Gans
Common Stock
Northeast Cable, Inc. 45 Shares of Joseph S. Gans, III
Common Stock
Northeast Cable, Inc. 45 Shares of Janice Gans Moisey
Common Stock
Kittanning Cablevision, Inc. 1,000 Shares of Adelphia Communications Corporation
Common Stock
Chelsea Communications, Inc. 500 Shares of Adelphia Communications Corporation
Common Stock
Aurora Cable Vision, Inc. 100 Shares of Chelsea Communications, Inc.
Common Stock
Better TV, Inc. of Bennington 7,000 Shares of Chelsea Communications, Inc.
Common Stock
Campbell Communications, Inc. 1,250 Shares of Chelsea Communications, Inc.
Common Stock
<PAGE>
Amount and Type
of Issued and Outstanding
Capital Securities
Subsidiary or Borrower Issued To/Owned By
- ---------------------- ------------------
Chautauqua County Cable Vision, Inc. 50 Shares of Chelsea Communications, Inc.
Common Stock
Harbor Vue Cable TV, Inc. 50 Shares of Chelsea Communications, Inc.
Common Stock
Hoosick Cablevision, Inc. 100 Shares of Chelsea Communications, Inc.
Common Stock
Kalamazoo County Cablevision, Inc. 500 Shares of Chelsea Communications, Inc.
Common Stock
Mass. Cablevision, Inc. 7,485 Shares of Chelsea Communications, Inc.
Common Stock
Mt. Lebanon Cablevision, Inc. 100 Shares of Chelsea Communications, Inc.
Common Stock
Multi-Channel T.V. Cable Company 6,135 Shares of Chelsea Communications, Inc.
Common Stock
Pericles Communications Corporation 1,000 Shares of Chelsea Communications, Inc.
Common Stock
Rigpal Communications, Inc. 100 Shares of Chelsea Communications, Inc.
Common Stock
South Shore Cablevision, Inc. 1,000 Shares of Chelsea Communications, Inc.
Common Stock
Upper St. Clair Cablevision, Inc. 100 Shares of Chelsea Communications, Inc.
Common Stock
Vermilion Cable Communications, Inc. 100 Shares of Chelsea Communications, Inc.
Common Stock
Mountain Cable Communications 500,000 Shares of Pericles Communications Corporation
Corporation Common Stock
<PAGE>
Amount and Type
of Issued and Outstanding
Capital Securities
Subsidiary or Borrower Issued To/Owned By
- ---------------------- ------------------
Robinson/Plum Cablevision, L.P. 1% General Kittanning Cablevision, Inc.
Partner Interest
Robinson/Plum Cablevision, L.P. 99% Limited Northeast Cable, Inc.
Partner Interest
Adelphia Cablevision Associates, L.P. 27.43% General Chelsea Communications, Inc.
Partner Interest
Adelphia Cablevision Associates, L.P. 14.37% Limited Aurora Cable Vision, Inc.
Partner Interest
Adelphia Cablevision Associates, L.P. 10.78% Limited Kalamazoo County Cablevision, Inc.
Partner Interest
Adelphia Cablevision Associates, L.P. 31.09% Limited Mass. Cablevision, Inc.
Partner Interest
Adelphia Cablevision Associates, L.P. 16.33% Limited Vermilion Cable Communications, Inc.
Partner Interest
Mountain Cable Company 60% Managing General Partner Pericles Communications Corporation
Interest Prior to Payout; 59.99%
Managing General Partner
Interest After Payout
Mountain Cable Company .01% General Partner Interest Mountain Cable Communications Corporation
After Payout
Mountain Cable Company 6.84% Limited Upper St. Clair Cablevision, Inc.
Partner Interest
Mountain Cable Company 20.16% Limited Rigpal Communications, Inc.
Partner Interest
Mountain Cable Company 13% Limited Mt. Lebanon Cablevision, Inc.
Partner Interest
<PAGE>
Amount and Type
of Issued and Outstanding
Capital Securities
Subsidiary or Borrower Issued To/Owned By
- ---------------------- ------------------
Three Rivers Cable Associates, L.P. 75% General Mt. Lebanon Cablevision, Inc.
Partner Interest
Three Rivers Cable Associates, L.P. 17.25% Limited Walter L. Bent
Partner Interest
Three Rivers Cable Associates, L.P. 7.75% Limited Bent & Associates, Inc.
Partner Interest
</TABLE>
<PAGE>
SCHEDULE 4.19
ENVIRONMENTAL MATTERS
NONE
<PAGE>
- 25 -
Schedule 4.21
SCHEDULE 4.21
SYSTEMS AND FRANCHISES
1. CATV SYSTEMS
CATV Systems are operated in the following communities pursuant to the
following Franchises:
<TABLE>
<CAPTION>
A. ADELPHIA CABLEVISION ASSOCIATES, L.P.
Franchisor Expiration Date
<S> <C>
Town of Falmouth, Massachusetts December 30, 1999
Town of Aurora, New York September 6, 1999
Town of Colden, New York December 31, 2000
Town of Holland, New York October 9, 2000
Town of Wales, New York March 11, 1997
City of Galesburg, Township of Richland, Village of Richland, Township of October 21, 2000
Charleston and Township of Ross, Michigan
Township of Barry, Michigan August 2, 1998
Township of Comstock, Michigan August 30, 2005
Village of Mattawan, Michigan June 20, 2003
Township of Prairieville, Michigan February 7, 1999
Township of Vermilion, Ohio June 5, 1997
City of Vermilion, Ohio July 6, 2002
Township of Florence, Ohio September 15, 2002
Borough of Delmont, Pennsylvania January 1, 2008
<PAGE>
Franchisor Expiration Date
Borough of Export, Pennsylvania May 6, 1994
(Renewal Pending)
Township of Loyalhanna, Pennsylvania June 6, 2004
Municipality of Murrysville, Pennsylvania July 19, 2008
Township of Salem, Pennsylvania June 9, 2004
Township of Washington, Pennsylvania February 13, 2002
B. BETTER TV, INC. OF BENNINGTON
Franchisor Expiration Date
Certificate of Public Good from the Vermont Public Service Board to Operate Not
Stated a Cable Television System in the Village and Town of Bennington, Village
of Old Bennington, Village of North Bennington and Town of Shaftsbury, Vermont
Certificate of Public Good from the Vermont Public Service Board to Operate Not
Stated a Cable Television System in the Towns of Pownal and Woodford, Vermont
C. CAMPBELL COMMUNICATIONS, INC.
Franchisor Expiration Date
Town of Carver, Massachusetts June 23, 1997
Town of Duxbury, Massachusetts November 25, 2004
Town of Kingston, Massachusetts February 12, 1997
Town of Plymouth, Massachusetts March 3, 1996
(Renewal Pending)
<PAGE>
D. CHAUTAUQUA COUNTY CABLE VISION, INC.
Franchisor Expiration Date
Village of Forestville, New York January 30, 1999
Town of Hanover, New York January 30, 1999
Village of Silver Creek, New York January 30, 1999
E. HARBOR VUE CABLE T.V., INC.
Franchisor Expiration Date
City of Dunkirk, New York August 23, 2000
Town of Dunkirk, New York January 1, 2001
Town of Pomfret, New York February 8, 1998
Town of Portland, New York September 1, 2001
Town of Sheridan, New York September 5, 2001
F. HOOSICK CABLEVISION, INC.
Franchisor Expiration Date
Town of Hoosick, New York June 5, 1996
Village of Hoosick Falls, New York March 25, 1996
(Renewal Pending)
G. KITTANNING CABLEVISION, INC.
Franchisor Expiration Date
Borough of Applewold, Pennsylvania April 7, 2005
Township of Cadogan, Pennsylvania October 4, 2009
Township of East Franklin, Pennsylvania July 31, 2004
<PAGE>
Franchisor Expiration Date
Borough of Ford City, Pennsylvania Year to Year
Borough of Ford Cliff, Pennsylvania September 30, 2001
Borough of Freeport, Pennsylvania March 9, 2016
Borough of Hawthorne, Pennsylvania September 10, 1999
Borough of Kittanning, Pennsylvania Year to Year
Township of Kittanning, Pennsylvania Year to Year
Township of Manor, Pennsylvania October 23, 2000
Borough of New Bethlehem, Pennsylvania May 9, 2004
Township of North Buffalo, Pennsylvania August 5, 1978
(Year to Year Thereafter)
Township of Porter, Pennsylvania June 8, 1997
Township of Rayburn, Pennsylvania February 27, 1997
Township of Redbank, Pennsylvania September 13, 1999
Borough of South Bethlehem, Pennsylvania September 6, 1995
(Renewal Pending)
Township of West Franklin, Pennsylvania August 3, 2002
Borough of West Kittanning, Pennsylvania Year to Year
Borough of Worthington, Pennsylvania December 2, 1999
<PAGE>
H. MOUNTAIN CABLE COMPANY
Franchisor Expiration Date
Certificate of Public Good from the Vermont Public Service Board to Operate January 28, 2005
a Cable Television System in the Town of Clarendon, Vermont
Certificate of Public Good from the Vermont Public Service Board to Operate September 23, 1999
a Cable Television System in the Towns of Danby and Mt. Tabor, Vermont
Certificate of Public Good from the Vermont Public Service Board to Operate November 23, 2004
a Cable Television System in the Towns of Calais, East Montpelier and
Worcester, Vermont
Certificate of Public Good from the Vermont Public Service Board to Operate September 23, 1999
a Cable Television System in the Towns of Leicester and Brandon (including
the Village of Forest Dale), Vermont
Certificate of Public Good from the Vermont Public Service Board to Operate September 23, 1999
a Cable Television System in the Towns of Berlin, Bethel, Braintree,
Brandon, Colchester, Duxbury, East Middlebury, Essex, Mendon, Middlebury,
Middlesex, Moretown, Proctor, Randolph, Rochester, Rutland, St. George,
Wallingford, Waterbury, West Rutland, Weybridge, Williston, the Villages of
Essex Junction, Middlebury, Randolph, Waterbury, and the Cities of
Burlington, Montpelier, Rutland, South Burlington, and Winooski, Vermont
Town of Adams, Massachusetts October 25, 2003
Town of Cheshire, Massachusetts October 25, 2003
Town of Clarksburg, Massachusetts October 25, 2003
City of North Adams, Massachusetts October 25, 2003
Town of Altamount, New York June 9, 1996
Town of Brighton, New York January 13, 2003
Town of Franklin, New York June 6, 2000
<PAGE>
Franchisor Expiration Date
Town of Harrietstown, New York April 23, 1996
Village of Lake Placid, New York September 16, 2002
Town of North Elba, New York October 17, 2006
Village of Saranac Lake, New York May 31, 1996
Town of St. Armand, New York March 10, 1997
Village of Tupper Lake, New York September 1, 1996
Town of Williamstown, New York December 26, 2003
I. MT. LEBANON CABLEVISION, INC.
Franchisor Expiration Date
Municipality of Mt. Lebanon, Pennsylvania November 3, 1995
(Renewal Pending)
J. MULTI-CHANNEL T.V. CABLE COMPANY
Franchisor Expiration Date
Village of Belleville, Ohio November 7, 2004
Township of Berkshire, Ohio March 13, 2004
City of Bucyrus, Ohio May 20, 2004
Village of Butler, Ohio July 17, 2006
Village of Cardington, Ohio July 18, 2013
Village of Croton, Ohio June 6, 2013
Village of Danville, Ohio August 17, 2003
<PAGE>
Franchisor Expiration Date
Village of Edison, Ohio May 9, 2002
Village of Fredericktown, Ohio October 15, 2002
Township of Hartford, Ohio December 19, 2003
Village of Johnstown, Ohio June 18, 1994
(Renewal Pending)
Township of Kingston, Ohio March 6, 2004
Village of Lexington, Ohio April 16, 1997
Village of Lucas, Ohio March 1, 2003
City of Mansfield, Ohio December 30, 1999
Village of Mifflin, Ohio November 5, 2001
Village of Mt. Gilead, Ohio December 16, 2001
Village of Ontario, Ohio November 30, 1999
Township of Porter, Ohio November 22, 2003
City of Shelby, Ohio October 5, 2002
Village of Sunbury, Ohio August 4, 2009
Village of Tiro, Ohio June 29, 2013
Township of Trenton, Ohio December 29, 2003
City of Charlottesville, Virginia June 15, 1997
County of Henry, Virginia January 24, 1997
City of Martinsville, Virginia January 1, 1997
Town of Ridgeway, Virginia November 2, 1996
City of Staunton, Virginia March 24, 2002
City of Waynesboro, Virginia December 2, 1997
K. NORTHEAST CABLE, INC.
Franchisor Expiration Date
Township of Abington, Pennsylvania June 26, 2004
Borough of Archbald, Pennsylvania August 29, 2005
Township of Benton, Pennsylvania June 1, 2010
Borough of Blakely, Pennsylvania June 19, 2004
Borough of Clarks Green, Pennsylvania January 8, 2005
Borough of Clarks Summit, Pennsylvania June 7, 2004
Township of Clinton, Pennsylvania December 12, 2005
Township of Covington, Pennsylvania December 1, 2007
Borough of Dalton, Pennsylvania May 10, 2005
Borough of Dunmore, Pennsylvania January 1, 2000
Borough of Dupont, Pennsylvania October 11, 1998
Borough of Duryea, Pennsylvania August 8, 2005
Township of Elmhurst, Pennsylvania May 2, 2004
Township of Exeter, Luzerne County, Pennsylvania March 5, 2005
Township of Exeter, Wyoming County, Pennsylvania July 6, 2003
Borough of Factoryville, Pennsylvania September 13, 2004
Township of Glenburn, Pennsylvania September 17, 2005
Borough of Hughestown, Pennsylvania March 12, 2005
<PAGE>
Franchisor Expiration Date
Township of Jefferson, Pennsylvania October 9, 2005
Township of Jenkins, Pennsylvania May 7, 1999
Borough of Jessup, Pennsylvania April 5, 1997
Borough of Laflin, Pennsylvania January 13, 2001
Township of LaPlume, Pennsylvania April 12, 2005
Township of Madison, Pennsylvania November 5, 1999
Borough of Moscow, Pennsylvania October 2, 2004
Township of Newton, Pennsylvania September 11, 2010
Borough of Nicholson, Pennsylvania May 4, 1996
Township of Nicholson, Pennsylvania February 3, 2007
Township of North Abington, Pennsylvania June 28, 1997
Borough of Olyphant, Pennsylvania April 3, 1998
City of Pittston, Pennsylvania August 9, 2004
Township of Pittston, Pennsylvania July 28, 2004
Township of Ransom, Pennsylvania December 13, 2005
Township of Roaring Brook, Pennsylvania September 15, 2004
Township of Scott, Pennsylvania August 1, 2005
Township of South Abington, Pennsylvania May 8, 2004
Township of Spring Brook, Pennsylvania June 11, 1996
Borough of West Pittston, Pennsylvania June 5, 2005
Borough of Yatesville, Pennsylvania November 15, 1998
<PAGE>
L. RIGPAL COMMUNICATIONS, INC.
Franchisor Expiration Date
Borough of Homestead, Pennsylvania August 14, 1997
Borough of Munhall, Pennsylvania October 20, 2008
Borough of Pleasant Hills, Pennsylvania September 15, 1993
(Renewal Pending)
Borough of West Homestead, Pennsylvania February 9, 1998
Borough of West Mifflin, Pennsylvania October 8, 1993
(Renewal Pending)
Borough of Whitaker, Pennsylvania August 1, 1993
(Renewal Pending)
M. ROBINSON/PLUM CABLEVISION, L.P.
Franchisor Expiration Date
Township of Adams, Pennsylvania September 23, 2006
Township of Blacklick, Pennsylvania December 20, 2007
Township of Croyle, Pennsylvania October 1, 2007
Borough of East Conemaugh, Pennsylvania November 1, 2004
Township of Jackson, Pennsylvania November 9, 1998
Borough of Nanty Glo, Pennsylvania October 1, 2011
Borough of Paint, Pennsylvania December 12, 2008
Township of Paint, Pennsylvania October 23, 2011
Township of Pine, Pennsylvania June 6, 2009
Borough of Plum, Pennsylvania July 10, 2005
Borough of Portage, Pennsylvania August 14, 2006
<PAGE>
Franchisor Expiration Date
Township of Portage, Pennsylvania September 12, 2006
Township of Robinson, Pennsylvania December 14, 2010
Borough of Scalp Level, Pennsylvania September 20, 2011
Township of Summerhill, Pennsylvania May 17, 2011
Township of Upper Burrell, Pennsylvania July 8, 1997
Borough of Vintondale, Pennsylvania October 1, 2011
Township of Washington, Cambria County, Pennsylvania March 13, 2011
Township of Washington, Westmoreland County, Pennsylvania January 1, 2005
Borough of Windber, Pennsylvania December 16, 2008
N. SOUTH SHORE CABLEVISION, INC.
Franchisor Expiration Date
Town of Marshfield, Massachusetts December 14, 1995
(Renewal Pending)
O. THREE RIVERS CABLE ASSOCIATES, L.P.
Franchisor Expiration Date
Village of Alexandria, Ohio January 11, 1999
Village of Centerburg, Ohio March 7, 1998
Township of Clinton, Ohio December 31, 2000
Township of Etna, Ohio September 19, 1998
Village of Gambier, Ohio February 15, 2000
<PAGE>
Franchisor Expiration Date
Village of Gratiot, Ohio May 31, 2001
Township of Harrison, Ohio October 1, 1998
Township of Howard, Ohio November 1, 1998
Village of Junction City, Ohio September 7, 2000
Village of Kirkersville, Ohio September 1, 1998
Township of Licking, Ohio August 20, 1999
Township of Mount Pleasant, Ohio July 9, 1996
City of Mount Vernon, Ohio December 31, 2000
City of New Lexington, Ohio November 4, 2000
County of Perry, Ohio November 27, 2003
Village of Rushville, Ohio April 10, 1999
Village of Somerset, Ohio January 3, 2000
Township of Thorn, Ohio July 10, 1996
Village of Thornville, Ohio May 20, 2005
Village of Utica, Ohio July 11, 1998
Township of Walnut, Ohio June 20, 1999
Village of West Rushville, Ohio April 18, 1999
Borough of Georgetown, Pennsylvania November 16, 1998
Township of Greene, Pennsylvania January 27, 2002
Borough of Hookstown, Pennsylvania October 9, 2001
Township of Independence, Pennsylvania July 1, 2001
Borough of Midway, Pennsylvania August 9, 2001
<PAGE>
Franchisor Expiration Date
Township of Potter, Pennsylvania October 9, 1995
(Renewal Pending)
Township of Raccoon, Pennsylvania April 14, 1996
Township of Robinson, Pennsylvania March 5, 1999
P. UPPER ST. CLAIR CABLEVISION, INC.
Franchisor Expiration Date
Township of Upper St. Clair, Pennsylvania June 10, 1995
(Renewal Pending)
</TABLE>
2. SMATV SYSTEMS
None.
<TABLE>
<CAPTION>
3. FCC LICENSES
A. ADELPHIA CABLEVISION ASSOCIATES, L.P.
Type of Call Sign
License and Location Expiration Date
<S> <C> <C>
Business KNHM391 April 15, 1997
Radio Richland, MI
TVRO E4086 March 5, 2002
Murrysville, PA
TVRO E5926 July 8, 2003
Vermilion, OH
TVRO E6003 July 22, 2003
Ross, MI
<PAGE>
Type of Call Sign Expiration Date
License and Location
TRVO E864088 December 26, 1996
Aurora, NY
TVRO WJ42 December 2, 2003
Falmouth, MA
B. BETTER TV, INC. OF BENNINGTON
Type of Call Sign
License and Location Expiration Date
Business WNJN247 July 30, 1997
Radio Bennington, VT
TVRO E860184 March 28, 2006
Bennington, VT
C CAMPBELL COMMUNICATIONS, INC.
Type of Call Sign Expiration Date
License and Location
Business KNCJ661 January 12, 1997
Radio Plymouth, MA
TVRO E3073 May 20, 2001
Plymouth, MA
D. HARBOR VUE CABLE TV, INC.
Type of Call Sign Expiration Date
License and Location
TVRO E2544 November 26, 2000
Dunkirk, NY
Type of Call Sign Expiration Date
License and Location
TVRO E890830 August 25, 1999
Dunkirk, NY
E. KITTANNING CABLEVISION, INC.
Type of Call Sign Expiration Date
License and Location
Business KIW245 July 30, 1997
Radio Kittanning, PA
F. MOUNTAIN CABLE COMPANY
Type of Call Sign Expiration Date
License and Location
CARS WGZ335 March 1, 1997
Harrietstown, NY
CARS WGZ413 February 1, 1998
Saranac Lake, NY
Business KST395 January 9, 1997
Radio Rutland, VT
Business KST400 April 25, 1998
Radio Williston, VT
Business KST750 March 14, 2000
Radio North Adams, MA
Business KVH831 March 14, 2000
Radio Saranac Lake, NY
Business KVH832 March 14, 2000
Radio Berlin, VT
<PAGE>
Type of Call Sign Expiration Date
License and Location
TVRO E3490 August 31, 2001
North Adams, MA
TVRO E3533 November 30, 2001
Saranac Lake, NY
TVRO E3534 September 18, 2001
Berlin, VT
TVRO E3930 December 31, 2001
Rutland, VT
TVRO E3931 December 31, 2001
Middlebury, VT
TVRO E4438 July 2, 2002
Waterbury, VT
TVRO E4439 July 2, 2002
Randolph, VT
TVRO E4853 October 1, 2002
Burlington, VT
TVRO E900789 October 19, 2000
South Burlington, VT
TVRO E910277 June 7, 2001
Rutland, VT
G. MULTI-CHANNEL T.V. CABLE COMPANY
Type of Call Sign
License and Location Expiration Date
Business KET656 March 5, 1997
Radio Charlottesville, VA
Business KNFD971 March 26, 1997
Radio Collinsville, VA
<PAGE>
Type of Call Sign Expiration Date
License and Location
Business KNHJ962 Bucyrus/Shelby, OH January 8, 2001
Radio
Business WNFD851 March 19, 2001
Radio Staunton, VA
Business WNPH274 May 10, 1999
Radio Marengo, OH
Business WNQJ943 January 9, 2000
Radio Mansfield, OH
Business WXX361 August 15, 1998
Radio Fredericktown, OH
TVRO E2022 March 28, 2006
Staunton, VA
TVRO E2471 October 14, 2000
Charlottesville, VA
TVRO E4472 July 30, 2002
Charlottesville, VA
TVRO E5271 February 18, 2003
Mount Gilead, OH
TVRO E7451 July 27, 2004
Fredericktown, OH
TVRO E950049 November 7, 2004
Sunbury, OH
TVRO E950352 May 26, 2005
Palmyra, VA
TVRO WD20 November 5, 1999
Mansfield, OH
TVRO WM45 January 2, 2002
Bucyrus, OH
<PAGE>
Type of Call Sign Expiration Date
License and Location
TVRO WM46 January 2, 2002
Shelby, OH
TVRO WM92 January 22, 2002
Waynesboro, VA
TVRO WM93 January 22, 2002
Martinsville, VA
TVRO WT39 February 25, 2003
Sunbury, OH
TVRO WX41 February 18, 2003
Johnston, OH
H. NORTHEAST CABLE, INC.
Type of Call Sign Expiration Date
License and Location
CARS WAN549 February 1, 2000
Scranton, PA
Private Operational Fixed Microwave WNEP297 April 14, 1997
Service Scranton, PA
Private Operational Fixed Microwave WNEP298 April 14, 1997
Service Scranton, PA
TVRO E3049 May 13, 2001
Scrub Oak, PA
I. RIGPAL COMMUNICATIONS, INC.
Type of Call Sign Expiration Date
License and Location
TVRO E6002 July 22, 2003
Pittsburgh, PA
J. ROBINSON/PLUM CABLEVISION, L.P.
Type of Call Sign Expiration Date
License and Location
Business WNRD844 January 23, 2000
Radio Monroeville, PA
Business WNZK769 May 26, 1997
Radio Pavia/Nanty Glo, PA
TVRO E7359 July 13, 2004
Windber, PA
TVRO E7361 July 13, 2004
Portage, PA
TVRO E7373 July 13, 2004
Adams-Croyle, PA
TVRO E7374 July 13, 2004
Nanty Glo, PA
TVRO E7383 July 13, 2004
East Conemaugh, PA
TVRO E7531 August 24, 2004
Robinson, PA
TVRO E950015 October 25, 2004
Pittsburgh, PA
K. SOUTH SHORE CABLEVISION, INC.
Type of Call Sign Expiration Date
License and Location
Business KNHD560 November 4, 1996
Radio Marshfield, MA
TVRO E865079 December 26, 1996
Marshfield, MA
L. THREE RIVERS CABLE ASSOCIATES, L.P.
Type of Call Sign Expiration Date
License and Location
Business KNCN337 May 17, 1999
Radio Mt. Vernon, OH
Business WNQW591 June 22, 1999
Radio Thornville, OH
TVRO E7468 August 3, 2004
New Lexington, OH
TVRO E859631 September 13, 2005
Centerburg, OH
TVRO E859632 September 13, 2005
Utica, OH
TVRO E859633 September 31, 2005
Mt. Sterling, OH
TVRO E859933 October 11, 2005
Kirkersville, OH
TVRO E860333 April 18, 1996
Gambier-Howard, OH (renewal application
pending)
TVRO E860497 May 16, 1996
Thornville, OH
Type of Call Sign Expiration Date
License and Location
TVRO E860675 June 27, 1996
Somerset, OH
TVRO E865158 January 2, 1997
McDonald, PA
TVRO WR96 July 23, 2002
Mt. Vernon, OH
</TABLE>
<PAGE>
SCHEDULE 4.22
SUBORDINATED INDEBTEDNESS
Subordinated Indebtedness payable by Chelsea to ACC in the outstanding principal
amount of $95,625,000 bearing interest at a rate per annum equal to two percent
(2%) plus the rate of interest published by the Wall Street Journal as the prime
rate on the first business day after each January 1, April 1, July 1, and
October 1. Principal and interest are payable on demand. Such Indebtedness is
evidenced by a promissory note dated April 1, 1993, a copy of which has been
provided to the Administrative Agent. No other agreements (whether written or
oral), instruments or other documents exist which evidence, govern, amend or
modify such Indebtedness.
<PAGE>
SCHEDULE 7.7(f)
LOANS TO OFFICERS
NONE
<PAGE>
SCHEDULE 7.7(g)
INVESTMENTS IN SUBSIDIARIES
None, other than as specified on Schedule 4.14.
<PAGE>
SCHEDULE 7.7(i)
Loan from Chelsea to ACC, pursuant to that certain Revolving Note Agreement, in
the outstanding principal amount of $16,333,000, bearing interest, with
principal due on March 31, 1999.
- --------
* Bracketed language to be excluded in Bent Assignment of Partnership
Interests.
* Bracketed language to be included in Bent Assignment of Partnership
Interests only.
* Bracketed language to be excluded in Bent Assignment of Partnership
Interests.
* Bracketed language to be excluded in Bent Assignment of Partnership
Interests.
* Bracketed language to be excluded in Bent Assignment of Partnership
Interests.
